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In recent years, San Diego-based U.S. District Judge Roger Benitez has struck down a series of California gun laws, raising questions about Sacramento’s response to mass shootings and raising Gov. Gavin Newsom’s ire to the point of extraordinary personal attacks on a judge who was nominated by President George W. Bush to the bench in 2003 after a varied career that included 19 years working in private practice in Imperial County. In 2021, instead of respecting the legal system and accepting the possibility that Benitez believed in his reading of the Second Amendment, Newsom declared that he was “a wholly owned subsidiary of the gun lobby and the National Rifle Association.”
Now, another San Diego federal judge has faulted another state law seeking to reduce gun violence. Judge Dana Sabraw has issued a ruling that blocks four provisions of the state’s Unsafe Handgun Act. That 2001 law set minimum standards for such weapons. Sabraw — a respected jurist who won national attention and acclaim in 2018 for criticizing the Trump administration’s family separation policy for migrants as a “chaotic” assault on due process rights — issued a stay on his decision, allowing California Attorney General Rob Bonta time to appeal before it takes effect. Sabraw cited provisions in the law that include technical specifications that must be present in new handguns before they can be sold in California — requirements that critics say amount to a stealthy way to ban all new handgun sales. Last month, in a ruling that paralleled Sabraw’s, Santa Ana-based U.S. District Judge Cormac Carney wrote, “No handgun available in the world has all three of these features.”
Sabraw’s and Carney’s decisions reflect a new era created by the U.S. Supreme Court’s ruling last June striking down New York’s concealed-carry law. In limiting the circumstances under which state officials could limit public access to firearms, six justices held that “the government must affirmatively prove that its firearms regulation is part of the [nation’s] historical tradition.” This “text, history and tradition” standard seems like a blueprint for challenges to state gun laws across the U.S. — and to past appellate rulings overturning related lower-court rulings, including those of Benitez.
The San Diego Union-Tribune Editorial Board believes the Second Amendment is a fact of American life, and we lack the legal expertise to judge the points made by the high court’s conservatives. But we also believe the Second Amendment was written more than 230 years ago, at a time of muskets and long rifles, not the modern weapons involved in the horrible mass shootings seen today. We believe the Second Amendment can coexist alongside responsible gun legislation, so that every American can expect to survive in public and private spaces.
It’s obvious that two-thirds of the Supreme Court draws a different line than we might. As a result, we urge Newsom and the Legislature to renew their efforts to reduce gun violence but to do so by thinking more fully through their legal obstacles. They must craft laws that can survive the high court — not pass measures that amount to little more than value statements or thoughts and prayers.
This task may not be as difficult as it may seem, according to the Brady Center to Prevent Gun Violence. Three scholars associated with the center noted that in the New York case, Chief Justice John Roberts joined Associate Justice Brett Kavanaugh’s concurrence, which declared that the court’s ruling was not meant to invalidate all gun laws. “Properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations,” Kavanaugh wrote. Reflecting the hope that there are five justices who would uphold carefully crafted state laws, lawmakers in New Jersey, Illinois and Oregon are looking at new rules on permit costs and eligibility and minimum age of ownership. If, as some observers believe, Roberts’ central goal is preserving the court’s institutional legitimacy — not overseeing a reactionary march backward in history — this will be his chance.
Newsom’s choice is clear. Will he keep indulging in his base-pleasing habit of impugning judges with different views? Or will he join the nascent effort to explore the opening that Kavanaugh and Roberts appear to have created? The latter course is the responsible path to responsible gun legislation.