Here’s Your Failed Experiment, Your Honor

Here’s a bit of random background. There is a lot of background to choose from, but I just learned this bit today, so it’s on my mind.

In 2019, Megan Montgomery was rushed to a hospital in Birmingham, Alabama, with a gunshot wound in her arm. The shooter was her husband, Jason McIntosh, a local police officer. NBC reports what happened next.

Police took her husband’s pistol away. Nine months later, the state’s top law enforcement agency gave it back, despite pending domestic violence charges and an active protective order. Just 16 days after that, he used the gun to shoot and kill her during another late-night dispute.

Of course he did. Even McIntosh’s lawyer thinks the state was nuts to give him his gun back. In the United States, a woman is killed by an intimate partner every nine hours, the NBC article says. And in spite of laws calling for domestic abusers to lose their access to firearms, these laws are rarely enforced. Why?

Experts say the reason is a combination of deference to gun rights on the part of judges and other officials, the absence of a defined procedure to remove the guns, and a lack of awareness by law enforcement about just how lethal the risk can be.

And, anyway, it’s just women, right? Gun rights are more important.

Megan Montgomery and Jason McIntosh in 2019.

Now, with that in mind, let us turn to California, where a U.S. District Judge named Roger Benitez has overturned the state’s 32-year-old assault weapons ban. Benitez called the ban a “failed experiment” and also compared the infamous AR-15 rifle to a Swiss army knife — “a perfect combination of home defense weapon and homeland defense equipment.”

Daniel Polti, at Slate:

U.S. District Judge Roger Benitez said that the way California has described the military-style rifles that are illegal to own means law-abiding citizens of the state can’t have weapons that most other states allow. The restrictions on the use of the weapons are “hereby declared unconstitutional and shall be enjoined,” Benitez wrote.  …

… Benitez also criticized the news media, saying that it’s their fault assault weapons have a bad reputation. “One is to be forgiven if one is persuaded by news media and others that the nation is awash with murderous AR-15 assault rifles. The facts, however, do not support this hyperbole, and facts matter,” he wrote. “In California, murder by knife occurs seven times more often than murder by rifle.”

I do not have data on precisely how murders are committed in California, but in the U.S. as a whole the overwhelming majority of homicides are committed by firearms. “Knives or cutting instruments” are a very distant second. Of course, maybe he’s saying that if Californians could get their hands on more AR-15s, maybe the state’s homicide rate (currently 4.5 per 100,000 residents) could be bumped up to rival Mississippi’s (15.4 per 100,000 residents)!

If you’re wondering, Benitez is a George W. Bush appointee, and he has a history of pro-gun rulings. In a November 2020 news item in the San Diego Union-Tribune, reporter Greg Moran wrote that California Attorney General Xavier Becerra formally objected to a gun law case being assigned to Benitez.

Benitez has issued rulings striking down the laws banning high capacity ammunition magazines and requiring background checks for people buying ammunition in the past two years. He is also now hearing two other cases from Second Amendment advocates, one dealing with the state’s assault weapons regulatory scheme and another on the ban on billy clubs and blackjacks.

I take it AG Becerra couldn’t get the case reassigned.

Although Benitez overturned the assault weapon law, he granted a 30-day stay of the ruling to allow an appeal. And it will be appealed, and I suspect there’s a good chance the law will be reinstated. But let’s go back to Benitez and failed experiments.

Charles Tiefer writes in Forbes, Judge Strikes Down California’s Assault Weapon Ban As Part Of His Crusade Facilitating Mass Killings:

In his 94-page ruling Judge Benitez clearly aims to get the case to the Supreme Court, with its three new Trump-appointed justices, and bring about what he crusades for, a radical doctrine that the Second Amendment extends to weapons of mass killings of helpless, hopeless victims.

After noting Benitez’s pro-weapon history, Tiefer continues,

Benitez was picked although the American Bar Association clearing committee had more than 10 of 15 members giving Benitez an unqualified rating. The ABA said: “Judge Benitez is ‘arrogant, pompous, condescending, impatient, short-tempered, rude, insulting, bullying, unnecessarily mean, and altogether lacking in people skills.’”

Judge Benitez apparently thinks the assault weapons ban is a failed experiment. I have not been an unadulterated fan of assault weapons bans, mostly because “assault weapon” is not really a tightly defined technical term, and a lot of firearms with capabilities very similar to the dreaded AR-15 are not considered “assault weapons.” It’s also the case that one state’s firearm regulations are too easily undermined by laxer laws in other states. But Tiefer provides data arguing that the ban reduced the stockpile of privately owned rifles in California by more than 175,000. Which is better than nothing.

But if you want to talk about failed experiments, let’s look at the experiment we’ve been running in the U.S. This is the experiment to find out what happens when you let any damnfool own and carry guns, including high-velocity semiautomatic rifles like AR-15s. In recent years Republican states have been tripping all over themselves to eliminate even the most modest speed bumps to gun owenership. Licensing and permits are for socialists, you know. All this arm-bearing is supposed to reduce crime, enable public safety, and foster good manners. “An armed society is a polite society,” the Second Amendment advocates like to say.

So how is that working out? The murder rate in the U.S. jumped by 21 percent in 2020, it says here. No doubt a lot of violence was fueled by stress caused by the pandemic, and politics, and social upheavals, but if Americans didn’t own so damn many guns the violence might be a lot less lethal.

See also As Shootings Continue to Surge in 2021, Americans Set to Face a Summer Plagued by Gun Violence in Time; Mass shootings turn America’s gun culture into a killing culture in USA Today; There Have Been, On Average, 10 Mass Shootings In The U.S. Each Week This Year at NPR. Yeah, clearly, that “good guy with a gun” thing is workin’ real well. And are we more polite yet?

Life in the United States — Texas mom accidentally shoots her own child while firing gunshots at roaming puppy.

The woman, 24-year-old Angelia Mia Vargas, was charged with deadly conduct with a firearm after opening fire three times on the 6-month-old boxer puppy but instead wounding her son in the abdomen, reported KTRK-TV.

The puppy had been accidentally left out of the house and was roaming the street; his owner was present and trying to call the pup back to his house.  But Ms. Vargas had a gun handy, so a shooting occurred. The boy and puppy will both recover. Vargas was charged with deadly conduct with a firearm.

Texas lawmakers recently passed a bill to allow open carry of firearms without a permit or required training, which Republican Gov. Greg Abbott is expected to sign into law.

And the carnage will continue. This experiment is not going well. Maybe we should call it off.

20 thoughts on “Here’s Your Failed Experiment, Your Honor

  1. Maybe it's because it's Alabama, but otherwise, if there was a valid, active restraining order, which the cop-defendant either contested and lost, or just acquiesced in, and it was premised on domestic violence, the judge likely committed a federal crime by handing the gun over and the cop-defendant committed one by taking it. (I remember when the law became effective, because there were cops in many departments who had some kind of DV priors and police departments were going crazy.)

    When Emerson v. United States was handed down, those of us who were battling the "Standard Model" of the Second Amendment went on high alert. The Supreme Court denied cert, but everyone suspected that it was just a matter of time, and that time came in Heller.

    As in so many other respects, a huge portion of this country has become insane about guns and the Constitution.  Worse they believe there are things in the Constitution that simply aren't. Scalia invented a gun tradition in the country out of thin air and engaged in a level of mind reading of the Americans of the 18th century to justify an interpretation that would  have been laughed at in the actual time.

    If it takes "court packing" to return us to the actual truth about the amendment, and disengage private gun ownership from the Constitution, which doesn't address it, let alone protect it (because it's a  state concern, not federal), then so be it. Because I don't see "the people" regaining their senses any time in the foreseeable future.


    • “As in so many other respects, a huge portion of this country has become insane about guns and the Constitution. Worse they believe there are things in the Constitution that simply aren’t. Scalia invented a gun tradition in the country out of thin air and engaged in a level of mind reading of the Americans of the 18th century to justify an interpretation that would have been laughed at in the actual time.”

      Amen to that, bro. Of late I’ve been living in Missouri, and since the legislature pretty much eliminated all restrictions on gun ownership, the St. Louis area has become a shooting gallery. The homicide rate there was high before, but now it seems every day people are killed in random shootings. A lot of the victims are children.

      • Last night I watched SNL. It was a rerun, but the Weekend Update news segment made me bust a gut. Colin Jost did a story about gun control, and Michael Che responded, "Damn, and I just bought a gun because I heard those white kids talking about abolishing the police!"

        That said a lot right there.


  2. That twat judge needs to be told Swiss Army knives aren't all they're made out to be. Many years ago, my mother was trying, unsuccessfully, to open a tin can with a Swiss Army knife. There happened to be a former member of the Swiss Army visiting, so she asked him. "I don't know how to either. We just used our bayonets…"

  3. I'm a supporter of the 2nd Amendment for owners in three overlapping categories. 

    There's target practice (which is pretty much all I've done.) Hunting, and Self-defense. The courts shouldn't have to but it's time the US Supreme Court struck down the delusion that the 2nd Amendment conferred the right of gun ownership so that militias could overthrow the US Government. (This is the wingnut excuse for owing military weapons.) 

    I agree that the definition of an assault weapon often ignores the characteristics of a military weapon that can be a tool of mass murder. It's not the shape of the stock. IMO, it's the round and the capacity. The AR-15 is especially deadly because of the velocity of the bullet. 

    "Although small, the velocity of the .223 is what drives its damage potential. A typical 55 grain M-193 out of a 20 inch barrel moves around 3200 feet per second out of the muzzle. Not only does this decrease short to mid range drop in trajectory, but inadvertently causes high terminal tissue damage on impact. The nose of the bullet deforms, and the heel of the bullet starts to deviate from its predetermined flight path. This causes the bullet to tumble and sometimes fragment, creating a nasty internal wound channel."

    The military will design rounds to be lethal – no civilian needs them. These ROUNDS (bullets) and the guns that can chamber them should be restricted.  It's not the presence of a handgrip forward of the trigger.

    I'd predict that the current US Supreme Court will strike down Roe V Wade and nearly ban federal restrictions on gun ownership. The court will also declare open-season on voters by allowing states to restrict voting. 

    Either this will mobilize a voter backlash that expands the Senate enough to kill the filibuster and allow Congress to pack the court – or voters will ignore the death of democracy. 

    • Not to be a broken record, but the Second Amendment has nothing to do with private gun ownership. Zero.

      As for the claims that it exists to enable armed resistance to a tyrannical government, Article I of the Constitution commands that the militia has a duty to suppress insurrections. The framers were not so stupid as to include such a provision if the militia also had a duty to make war on the federal government. Armed rebellion against the federal government is addressed in Article III, where the crime of treason is defined (the only crime defined in the entire document). Armed rebellion is treason. There is no Constitutional right of revolution, nor could there be. Any "militia which engages in rebellious violence is little different than a street gang. Which is what we should call them. The lawful militia of today is the National Guard and the few state-chartered militias. (My father was a member of the oldest state-chartered militia in the country, The Ancient And Honorable Artillery Company of Massachusetts, which was granted its charter in 1638.)

      You're right about the trendy term "assault rifle". It is a meaningless term, and one that moves the ball not an inch. People can be killed by an assault rifle, a hunting rifle, a .38 revolver or a .22 pistol. They're equally dead irrespective of caliber or definition.  

    • Whenever someone tells me an armed society is a polite society, I respond "An armed society is a terrified society."

      • An armed society is a thuggish society.  There's the tendency, when we look at society from perspective of this is what we've created, to ignore the bad and only see it in terms of the "better angels" of our collective nature. That's the only way you can honestly end up with the absurd notion that more guns will make people more polite.

        But the woman who accidentally shot her own child is an example of why, realistically, oftentimes having a gun tends to bring out the worst in people — vanity, pride, anger, stupidity, impatience and everything that having the power of life and death in one's hands does to people who already have these personal failings and are also lacking in self control, traits that might not surface in the worse and deadly ways were it not for the gun.  Having that gun made it easier for her, and apparently without a second thought to start shooting at a puppy as the solution to the dog having strayed. 

        The question is asked, what is it about the US that we have so many mass shootings and murders?  Its because culturally not only have we made the gun a viable solution to certain problems, we celebrate those who use it (see “Second Amendment solutions). And when we allow anyone to have a gun, without any training, registration or any accountability for it, and defining such persons as “patriots,” that tends to codify the gun as "the Swiss Army knife" of problem solving. 

        Just imagine the mindset of someone who sees a puppy and thinks that's a problem, and then thinks the solution is to shoot it.  Then think about what else might cause this person to shoot.  From there almost any petty slight, misunderstanding or accident would set them off.  Multiply that times several million and you begin to understand the scale of the problem, and why we have so many gun murders.

        This we know: the more people with guns, the more shootings and deaths.  That's fact.  More guns don't make us safer, it makes for a more dangerous society.


    • The line, "An Armed Society is a Polite Society." comes from a Robert Heinlein novel Beyond This Horizon where society is divided into armed combatants and non-armed citizens Those who chose not to pack are IDd as second-class citizens who must defer to armed citizens. 

      By the end of the book, the hero gives up packing and joins the second-class citizens because the privilege isn't worth the bother and the bloodshed. As I remember from decades ago, the protagonist was a lightning-fast crack shot. If he had an altercation, he'd wind up the executioner of the other person over a minor or accidental slight.

      Heinlein believed in the 2nd Amendment and had a weapon at home according to his private writing but the idea of turning public areas into shooting galleries was worthy of a book and by Heinlein's conclusion… a bad idea.

      • I thought I remembered that from Heinlein, along with the divided society, but I wasn't certain–and I did not recall the title. Good call.

      • Heinlein's libertarianism always got in the way of my enjoyment of his books. He was a fantastic writer, but his  author filibusters turned  me off. 

  4. The ABA's description of Judge "Bang-bang" Benitez seems to me to be a perfect description of most of the conservatives I've met along the path of my life.

    Imo:  I think as long as the vast majority of the victims and the perp's are minorities, the powers-that-be won't care about guns laws.

    But if there's a chance the gun violence travels to predominantly White areas, then guns will be "Jim Crowed:"  You'll have to be registered voter in good standing to own a gun.

    There's no reason the 2nd Amendment can't be twisted to fit our our country's existing systemic racism.

    • While gun violence of the more pedestrian variety is statistically less likely in majority-white communities, there has been no shortage of spectacular mass shootings in White Person Land. Boulder, Colorado; Littleton, Colorado; Parkland, Florida; and Newtown, Connecticut are very white places. Hell, the Las Vegas shootings were at a country and western concert, and it doesn't get much whiter than that.

      And still nothing happens. So, while your point about shootings in minority neighborhoods is spot on, it doesn't apply to the lack of action following White Land massacres.

      Nothing will get done until the majority of  all citizens demand it. Why they don't in sufficient numbers is bewildering. But it's where we are, and might be forever.

  5. People own a lot of guns in this country, and mostly for no good reason.  A lot of people buy them as a toy and/or a status symbol.  No self respecting dually diesel truck owner can be without one, it's just part of the bad dude image.  It is a fetish sort of a thing for people who like to leave a big wake with their power boats.  

    More and more, it seems, the people who buy and own guns are not the people who seem stable enough to have guns much less take care of them safely.  It is more a bit of a statement that they are going a little crazy about one thing or another.  Of late we have seen evidence that a few people who bought them before going really crazy.  Yet somehow a lot of people keep saying we should not let crazy people buy or own guns. Yet buying guns is like buying a big dually diesel truck you really don't need and probably can's afford.  It is a way of announcing to all around that you have gone a bit crazy, and you have some people you would really like to offend.  

    Today the big theory is that Trump wore his pants backwards at the recent speech he gave.  This could be his way of announcing that he has gone a bit crazy.  Who is to say?  A lot of people would agree that he has been a lot crazy for a long time and such a gesture is unnecessary.  Others of course many others think he is the essence and soul of the Republican party.  Let us hope his supporters do not start flaunting their support by also wearing their pants backwards.  He is, for them, the ultimate role model, you know, so who knows where this may lead.  




  6. I thought I remembered that from Heinlein, along with the divided society, but I wasn't certain–and I did not recall the title. Good call.

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