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The Madison Avenue Brain of a “Guns Right” Judge

Judge Benitez, inspired by the logic of advertising, declares California’s ban on assault rifles unconstitutional.
AR-15, assault rifles, assault weapons, Gun laws, California gun laws, US Constitution, Judge Roger Benitez, California news, US gun laws, Peter Isackson

© Straight 8 Photography / Shutterstock

The most memorable three words of the French national anthem, La Marseillaise, may well be: “Aux armes, citoyens.” Composed in the immediate aftermath of the French Revolution and five years after the ratification of the US Constitution, the anthem’s lyrics dramatically recreate the atmosphere of the tumult that overthrew Louis XVI’s monarchy. The song calls the citizens to join the battle in a collective revolt against an unjust regime. All the “children of the fatherland” are invited to bear arms, take part in the struggle and, if all goes well, irrigate the furrows of their fields with impure blood.

Of course, that isn’t an exact description of how the revolution took place, but the lyrics of national anthems never pretend to be accurate historical documents. America’s Star-Spangled Banner is just as bellicose as the Marseillaise, especially in its later stanzas. But it begins as the story of someone passively observing a battle unfold and noting that, as the sun rose on a new day, “the flag was still there.” 


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Despite its anthem celebrating the romanticized call to arms of a ragtag citizenry against its own rulers, republican France has very strict laws concerning firearms. It correspondingly has produced a culture that sees little value in citizens’ owning, using or bearing arms designed for killing other human beings. Unlike former US Vice-President Dick Cheney, French hunters focus on their zoological prey and studiously avoid directing their fire at other people.

Americans have never had much use for the uncomfortable reality of history, preferring to romanticize it in the interest of patriotic motivation. Hollywood has long served that purpose. But we might expect that professionals of the law, and especially magistrates, might feel compelled to respect the reality of history. In an article with the title, “California’s three-decade-old ban on assault weapons is unconstitutional, federal judge rules,” the Los Angeles Times reports that one US district judge in San Diego is willing to go one better on Hollywood. In the decision he rendered, Judge Roger Benitez has produced an extraordinary piece of historical and legal fiction that, upon examination, nevertheless falls well below the linguistic discipline of even the tawdriest Hollywood screenwriter.

The judge “ruled that the state’s definition of illegal military-style rifles unlawfully deprives law-abiding Californians of weapons commonly allowed in most other states and by the U.S. Supreme Court.” It is a well-known fact that Californians, more than most Americans, do not appreciate feeling “deprived” of anything. In that sense, the judge is clearly in phase with the culture of the people. But to make his case, detailed in his justification of the court’s decision, he begins with this extraordinary simile: “Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment.”

Today’s Daily Devil’s Dictionary definition:

Perfect combination:

A standard item of marketing language used to promote trendy merchandise, rarely used in legal documents with the exception of venal or partisan magistrates

Contextual Note

The world of marketing provides endless examples of the phrase, “a perfect combination.” It can apply to any kind of product. “A perfect combination of modern technology and design elements” (laser scanner); “a perfect combination of her design and delicate craftsmanship techniques (jewelry); “A perfect combination of functionality and design.” (Lamborghini clothing line); “perfect combination of comfort and style” (shoes); “The Perfect Combination Of Eye-Popping Visuals And Talented Acting” (movie).

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There are even examples in the realm of lethal weaponry: “a perfect combination of nozzle design and high voltage supply (gun nozzle). Or this one: “the perfect combination of rigidity and comfort” (gun belt). Judge Benitez appears to have been more powerfully influenced by the clichéd language of consumer marketing than careful legal reasoning when composing the text of his decision. How else can one explain a sentence such as this one? “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).”

Benitez may have been inspired by the fictional TV series, “Mad Men.” The idea of associating home and battle is a stroke of legal (i.e., advertising) genius worthy of the series’ hero, Dan Draper. Like Draper, we can imagine Mad Judge Benitez in a strategy meeting evoking an advertising spot in which we see the closeup of a homeowner dramatically pacing about the house armed with an AR-15 to ensure that all is well before suddenly flinging open the door to reveal that in the street before him, the battle to save America is now raging. What better definition of versatility than defense of the home coupled with rescuing the nation? (We actually suspect that Benitez’s brain was culturally programmed in his younger days by the perennial advertising campaign for Jeep, originally a military vehicle, whose marketers successfully identified the vehicle with the idea of versatility.)

The first paragraph of Benitez’s judgment contains only three sentences, the first two resembling the logic of a Madison Avenue strategy session. The third and fourth abruptly switch to the law, and not just any law: the US Constitution. “Yet, the State of California makes it a crime to have an AR15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.”

It’s as simple as that. Failure to recognize a great consumer product violates the Constitution. Not necessarily the Constitution of the United States — which to be understood ordinarily requires paying minimal attention to the institutions that existed in the late 18th century — but the more modern unwritten but carefully scripted constitution of the consumer society that simply requires tuning into consumers’ desires.

Historical Note

Roger Benitez is not the only American who believes one can understand a historical document — specifically, the Constitution of the United States — without making any attempt to understand the history that produced it. Other Americans have done the opposite and made significant discoveries about the link between the amendment and the institution of slavery. The question of the meaning of the Second Amendment as it has evolved over time has produced the surreal situation today of a nation divided into two hostile camps incapable of understanding one another.

On one side, there are those — like Congressman Matt Gaetz — who see the amendment itself as a divine commandment. It enshrines the idea that every man’s home is his castle and every man is a private police force working for the “true” public interest. It then moves on to the idea that every right-thinking person is implicitly enrolled as a soldier in an army of righteousness that, when required, will mobilize its collective firepower to overturn those who call into question its righteousness. 

On the other side are those who simply believe that it is a good thing not to have too many firearms in circulation. They have given up trying to reason about the meaning of the Second Amendment in its historical context. They often are just as indifferent to the reality of history as the gun rights fanatics. Those soft-headed “liberals,” who militate for gun control, set themselves up to be accused of weakness by their opponents who point out that their argument is based on moral sentiment alone, rather than their own rigorously respectful reading of a text that enshrines individual ownership of weapons. The fact that the drafters of the Constitution highlighted the needs of “well-organized militias” — a collective need — never enters into their linguistically incorrect belief that the amendment is about the rights of individuals.

Benitez picks up this precise point with an inventive distortion of meaning: “At the same time, ‘the Second Amendment confers an individual right to keep and bear arms … that ‘have some reasonable relationship to the preservation or efficiency of a well regulated militia.’” Relationship? To what? Where is the militia with which he believes one can establish a relationship? Even Hollywood hasn’t managed to imagine that relationship.

With this judicial pronouncement, Judge Benitez offers the state of California a perfect combination of historical ignorance, a willful absence of logic and appalling linguistic imprecision.

*[In the age of Oscar Wilde and Mark Twain, another American wit, the journalist Ambrose Bierce, produced a series of satirical definitions of commonly used terms, throwing light on their hidden meanings in real discourse. Bierce eventually collected and published them as a book, The Devil’s Dictionary, in 1911. We have shamelessly appropriated his title in the interest of continuing his wholesome pedagogical effort to enlighten generations of readers of the news. Read more of The Daily Devil’s Dictionary on Fair Observer.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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