There has been significant pushback on judges trying to incorporate pop culture into their decisions, perhaps to make them more accessible to non-lawyers who are reading decisions that before would only be reported in serious legal periodicals. Or perhaps they just want their opinions to go viral and be adored by the groundlings for their wit and wisdom.
Georgia Court of Appeals Judge Stephen Dillard offers a fair explanation.
An occasional literary or pop-culture reference can be helpful in explaining or emphasizing a particular point in a unique or colorful way (we are writers after all), but context matters greatly. Judges should always strive to be respectful of the lawyers and parties.
No doubt that’s true, but it doesn’t do much to distinguish when and whether any particular case is the right one for that “occasional literary or pop-culture reference.” Judge Roger Benitez of the Southern District of California learned this the hard way. In Miller v. Bonta, Judge Benitez issued a decision that he knew was going to get a lot of attention.
California prohibited the sale of assault weapons in 1989. The law was challenged in a suit filed in 2019 against the state’s attorney general by plaintiffs including James Miller, a California resident, and the San Diego County Gun Owners, a political action committee.
The judge, Roger T. Benitez of the U.S. District Court for the Southern District of California, wrote that sections of the state’s penal code that defined assault weapons and restricted their use were “hereby declared unconstitutional and shall be enjoined.”
To hold a law that’s been around since 1989 unconstitutional is a pretty big deal. When that law defines the dreaded “assault weapons,” a phrase that evokes extreme reactions on both sides of the debate over gun control, the ruling shifts from “big” to “huge.” The rationale of the decision was written in a straightforward, readable way.
This case is not about extraordinary weapons lying at the outer limits of Second Amendment protection. The banned “assault weapons” are not bazookas, howitzers, or machineguns. Those arms are dangerous and solely useful for military purposes. Instead, the firearms deemed “assault weapons” are fairly ordinary, popular, modern rifles. This is an average case about average guns used in average ways for average purposes
What could possibly go wrong? The opening sentence, for one thing.
Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller, 554 U.S. 570 (2008) and United States v Miller, 307 U.S. 174 (1939).
Did he just compare an AR-15 to a Swiss Army Knife? You bet he did, which led to such headlines as this:
It’s not false, but in a world where people tend to skim the headlines to decide what’s worthy of their outrage, it doesn’t quite convey the message accurately either.
The reference to a Swiss Army knife was clearly intended to analogize this notably versatile knife, with its many uses to cover a broad array of potential needs, to the AR-15, as the gun in question is similarly versatile.
As an aside, the “assault weapon” epithet is a bit of a misnomer. These prohibited guns, like all guns, are dangerous weapons. However, these prohibited guns, like all guns, can be used for ill or for good. They could just as well be called “home defense rifles” or “anti-crime guns.”
As my gun friends invariably inform me, there is no such thing as an “assault weapon” as a category of rifle, and it’s merely a pejorative phrase given by anti-gun activists in order to vilify rifles that look scary. I demur, since I’m not a gun guy and have no personal knowledge of the issue. I do know, however, that the “AR” in AR-15 does not stand for “assault rifle,” but for “Armalite Rifle,” its creator.
Judge Benitez wrote a thoughtful, and well reasoned, opinion. Whether it will withstand scrutiny in the Ninth Circuit (and beyond) remains a mystery. Decisions giving rise to seismic shifts in the social fabric tend to be heavily scrutinized, and this is such a decision. But there’s little discussion by those outraged at the ruling about a law that defines weapons being grounded in hyperbole and claims devoid of fact,
No, Judge Benitez. AR-15 rifles are not equivalent to a Swiss Army knife. They are military style weapons that can, and have, killed dozens of people in a few minutes. The American people want common sense gun safety legislation. This decision should be appealed and overturned. https://t.co/cWV8VZtSS6
— Bernie Sanders (@SenSanders) June 5, 2021
Instead, the spin is that Judge Benitez doesn’t think assault weapons are any more dangerous than a Swiss Army knife. His analogy to a pocket knife whose popularity and existence is largely based on its breadth of utility, a knife that do anything from stab a person in the heart to pick errant food from one’s teeth, wasn’t a bad analogy. But was this the occasional pop culture reference Judge Dillard was talking about to help in explaining a point in a colorful way? If so, the color was red and that’s what its detractors saw.
Update: I missed this tasty morsel on page 47 of the decision, for which I apologize.
More people have died from the Covid-19 vaccine than mass shootings in California.
Had the nice folks bent on outrage read deeper, they might have latched onto this line rather than twisting the Swiss Army knife analogy in Judge Benitez’s back.