The Versatility of a Swiss Army Knife (Update)

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:

California’s assault weapons ban overturned as federal judge compares AR-15 to Swiss Army knife

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,

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.

46 thoughts on “The Versatility of a Swiss Army Knife (Update)

  1. PseudonymousKid

    Good idea putting this out on a Sunday. You’re still gunna have the nuts out slicing apart the analogy with a sharp edge I bet, but it might be tempered by a leisurely weekend. But who am I kidding. These guys don’t have a life otherwise and neither do I. The analogy works. The guns are easy to modify and use and it makes sense they are so popular.

    Hopefully this doesn’t mean the judge will shy away from making similar analogies in the future. They are helpful even if detractors will take them out of context. Otherwise we’re stuck with dreadfully dull formalistic opinions which would be sad.

      1. Hal

        That made me laugh out loud… though it took a moment before I got the joke. Thanks for the laugh.

  2. Hunting Guy

    I always suspected that reading comprehension wasn’t a requirement for politicians. I now see that it isn’t a requirement for headline writers either.

      1. Hal

        OK, I know you’re going to give me crap about tummy rubs, but you’re is especially fine form this AM.

        And I will be stealing this one.

      2. Guitardave

        Conclusive or not, you’re gonna cut yourself with that thing…you have no choice.

        1. Guitardave

          …oh crap…I was thinking of Hobsons Razor…or was it Occam’s Choice…i don’t know…I need some more coffee

  3. JRP

    Rather than reading headlines I clicked on a link for the decision (and may have forwarded it a bit). The Judges analogy and clear way of speaking made it easy to understand for even a non lawyer like me.

    I think that was the point. The Judge knew the left was going to blow his decision out of proportion no matter what analogy he used. And he knew, he was not going to change the minds of those that read only headlines. For the small percentage who would read or forward, he kept the language and rationalization clear, common and to the point. It gives average citizens something to stand up for that they understand.

    I think he was right. As an example, a more confrontational progressive member of my family was upset by the headline and complained to a parent. The parent had read the decision and asked the member what was wrong with the text. The family member then actually read it and had nothing because it is different than the spin and easy to understand.

    1. SHG Post author

      You could have just clicked on the link in the post to read the decision, but your leap of faith misses the point. He didn’t need to use an analogy and give those who were going to hate his decision no matter what an easy weapon with which to attack it rather than having to address his reasoning.

  4. DaveL

    I find it odd that framing the AR-15 as a “military style weapon” is thought to count against it being protected by the 2nd Amendment. The American public has owned arms substantively similar to an infantryman’s standard-issue service weapon of the same era, pretty much continuously, since before the Revolutionary War. The idea that this was somehow untoward didn’t make its appearance until decades, if not generations, after self-loading rifles with detachable magazines hit the civilian market.

  5. B. McLeod

    Before the need to have a scary-sounding weapon to ban, an assault rifle would have been commonly understood to mean a fully automatic infantry weapon by which the user could self-supply suppressing fire while storming an objective.

    In an age where words now mean whatever, the concept has been expanded to semi-automatic arms that do not generate an adequate volume of fire to meet the functional requirements of a true assault rifle. This has created a tangle of legislative difficulties, because common semi-automatic rifles and pistols are just as dangerous as the spooky-looking ones that are configured to resemble fully-automatic military arms. The end goal of the “assault weapon” definers logically must be to ban all semi-automatic arms, and they are struggling to find a way to make that seem reasonable.

      1. Eduardo

        Because this AR15 has a “monster man” grip, it is considered “featureless” and does not meet the definition of an assault weapon in California. This of course illustrates the absurdity of the assault weapons law by confirming that the law is by definition based solely on the appearance and not on purported extraordinary lethality.

  6. Hunting Guy

    Maybe this is what the judge was referring to.


    [Ed. Note: You only get one pic. Don’t be greedy.]

    1. LY

      I WANT one of those, the zombie apocalypse is coming and you can never be to prepared.

      I am willing to trade a pastrami for one.

  7. Jay

    Please, the judge was clearly purposefully trying to own the libs. That’s shit judging and to whine about him getting the treatment he wanted is beyond stupid. Think harder Greenfield. You get owned by the frothy right every time.

    1. Miles

      Whenever I’m unsure of which side of an argument is correct, I look to your comments, Jay. Then I know where the side of reason can be found.

  8. Rengit

    The worst pop-culture reference of recent vintage has to be Brett Kavanaugh awkwardly shoehorning a nearly 20-year old Rick Pitino quote into a separate opinion to say “John Marshall is not walking through that door”, as if his fellow justices are losers compared to the Larry Bird judges of yesteryear. Unless you’re a die-hard obsessive college basketball fan or a Boston Celtics fan somewhere between the ages of 30 and 60, this reference isn’t going to make any sense, not to mention is insulting to all the current federal judiciary.

  9. Mark Dwyer

    Let us give Judge Benitez his due: he can use more than one pop-culture reference in an opinion. As in his speaking of weapons “more popular than the Ford F-150 Pickup Truck.” And this: “To those who grew up watching movie ‘westerns’ with John Wayne, or Chuck Connors (‘The Rifleman’) on television, modern rifles just do not look like rifles.”

    But let me also note that I am a tad surprised at the apparent approval by many here of the judge’s reasoning. Or do I mistake in concluding that? He invents a “modern weapon” category, for weapons he decides should be permitted. That category contains “assault weapons,” which are pretty clearly defined in statutes prohibiting them (and the definitions require more than a “simple” AR-15.) And he then seems to say that these “modern rifles” are good for home defense as well as national defense; automatic weapons and bazookas etc. seem to be placed in a different “good for national defense only” category. Why? Hey, I could defend my apartment better with a machine gun or a bazooka than with “only” an AR-15 with a pistol grip. (Or with a Swiss Army knife).

    We do have to accept Heller. It seems to suggest that a state can’t regulate its well regulated militia, as to what weapons the militia people may choose to possess. But I can’t see that the line as to what is permissible just magically appears at the border between automatic rifles, and the new category of “modern” rifles.

    If I may add a pop-culture reference: Chuck Connors defended his home and his boy Mark just fine, with a non-modern rifle.

    1. SHG Post author

      We’ve had this discussion a few times here back when Heller and McDonald were decided. One thing I learned, not being a gun guy and being a New Yorker inherently inclined against guns, was that many of our understandings about guns are colored by our lack of knowledge. I think the “modern riles” category comes from Scalia, and the laws prohibiting “assault weapons” may not only be unconstitutional per Heller, but are more hype than substance.

      Another thing I learned was that outside of the coasts, people have a very difference sense of this issue. Guns like AR-15s with bells and whistles that we find troubling are not merely pervasive elsewhere, but enthusiastically enjoyed by a great many law-abiding people who little tolerance for our combination of coastal cluelessness and hatred of guns.

      I’m still not a fan of guns, but I have learned quite a bit. And as long as the right to keep and bear arms is a fundamental personal right, I will defend it just as I expect 2d A folk to defend the rights protected by the other amendments.

    2. Miles

      We do have to accept Heller.

      I wouldn’t insult you and say you never read Heller, but I would suggest you reread it, as your comment doesn’t reflect a firm understanding of the decision.

        1. Mark Dwyer

          “I wouldn’t insult you and say you never read Heller” — I appreciate that! And I won’t extend a Heller debate by saying why I agree with Scott’s comment. I acknowledge again that we are stuck with the case.

          My small point is that there is no compelling basis for placing semi-automatic rifles made to accommodate silencers (or modified in the other statutorily specified ways) in a category different from that for automatic weapons. We have a bald conclusion referencing Chuck Connors and John Wayne. AR-15s modified for warfare may have been invented more recently than machine guns, but the legislature considers those two types of guns to be in the same category — weapons of war but not of home defense. The legislature does, though, distinguish from these weapons the “simple” AR-15s made without those modifications. If I had one of those simple semi-automatic rifles, my apartment would be safe, except maybe from me.

          And I know what I’m talking about. I’m from western Pennsylvania. Haven’t we all seen The Deer Hunter?

          1. DaveL

            My small point is that there is no compelling basis for placing semi-automatic rifles made to accommodate silencers (or modified in the other statutorily specified ways) in a category different from that for automatic weapons.

            The weapons in question are not modified, they incorporate the banned features from their original design and manufacture. And that list of “statutorily specified ways” grew so broad as to include under its definition literally millions of rifles lawfully owned by law-abiding Americans for legitimate purposes. That’s the crux of the problem: if Heller protects arms commonly owned for legitimate purposes, but allows for banning literally THE most popular rifle platform owned by civilians, then it doesn’t protect anything.

          2. Mike V.

            Any rifle or pistol can accommodate a suppressor (they are like mufflers, they don’t “silence”). And the rifles Chuck Conners and John Wayne used held more than 10 rounds, they’d be considered “high capacity” rifles in some states today. And “AR-15s modified for warfare” used to be called M-16s, now they are M-4s.

        2. Mike V.

          I agree Heller was a bad decision, as is Roe v Wade.

          I predicted then that we would be in Court for the next 50 years arguing what “subject to reasonable regulation” means. I suspect that he couldn’t have gotten the other 4 votes had he been more principled or clear.

        3. Scott in Phx

          I am curious as to what you wanted Scalia to do.

          I, though I can quibble, more than quibble, with his decision, agree that he got the core issue correct – the right to arms is an individual right not connected to militia service for all lawful purposes including self-defense (which is itself a right).

          Now, I would have loved him to strike down the DC prohibitions on carry and the licensing requirements. Indeed, while we’re at it he should have anticipated MacDonald and just asked Thomas to write his brilliant concurring opinion in that case and added the “incorporation” step right then and struck down all licensing schemes (NY, NJ, CA, etal) and prohibitions on open carry (I’ll grant that there is an actual possibility that concealed carry is not covered by the 2A, though in this day and age I’m not sure the Founding period reticence about concealed carry applies).

          In short nothing less than the Dred Scott statement that “citizens have the right to keep and carry arms where ever they go” would satisfy me.

          But, we could go further and ask that he struck down the 1934 NFA also as there is no rational (imo) reason that the full-auto M16 can be prohibited as it too is a fire”arm” and is quite suited for self-defense (can hunt with it too in semi-auto mode) and clearly meets the Miller test of being useful to a militia.

          But he really couldn’t do much (if any) of that could he?

          Apart from the fact that those issues weren’t in front of the court I subscribe to the theory that he had to be real careful in order to get the 5 votes to just overturn the in-the-home DC ban on working firearms (and prohibition of self-defense using firearms).

          That was a pretty heavy lift by itself.

          So, not being a layer myself, and knowing that all I know about this is what I’ve read (and self-taught myself) over the 30+ years I’m quite serious in asking what could Scalia have actually done better.


            1. Scott in Phx

              oh, wow.

              well, no, not interested in paying you for ideas about Heller.

              you seem to be free with your opinions otherwise so I thought I might hear something good, rather than the typical pro or con diatribes i’m used to seeing.

              or is it just me that you feel should pay for them?

            2. SHG Post author

              This is a blog for lawyers and judges to discuss law stuff. It’s not a free lawyer Q&A blog. It’s not just you.

          1. Mike V.

            Yes, it was a heavy lift. But I wish he’d have been clear about what he thought “reasonable regulations” are; but maybe he wouldn’t have gotten the 5th vote if he had. Who knows.

            1. SHG Post author

              The problem with saying what “reasonable regulations” are is that he would have had to provide a rationale. There was none. So he slipped in the exculpatory dicta as best he could, leaving the mess behind for others to deal with.

  10. mark r

    As much as they wish it to be true, the M-16 platform is not the same as an AR-15 rifle no matter how much they look alike. My Ford will never be a NASCAR no matter how many stickers or what paint I use.

    While the Swiss Army Knife was first made & issued for use by the Swiss army, it’s usefulness extends to the civilian market as well.

    You can own the same SAK that is given to the Swiss army, you can not own the same rifle.

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