(AP Photo/Jae C. Hong)
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Stop us if you’ve seen this movie before. Just as he did last month when reconsidering California’s “high capacity” magazine ban in Duncan v. Bonta, District Judge Roger Benitez has taken another look at Miller v. Bonta, the case challenging the Golden State’s ban on “assault weapons” and found it to be constitutionally problematic. Today, he issued another opinion in the case, once again striking it down as patently unconstitutional.

From today’s opinion . . .

People have heard about the Robb Elementary School shooting in Uvalde, Texas. They have heard about Sandy Hook, Parkland, the Pulse nightclub, and other tragic mass shootings. But they do not hear of the AR-15 used in Florida by a pregnant wife and mother to defend her family from two armed, hooded, and masked home intruders. As soon as the armed intruders entered the back door of her home they pistol-whipped her husband — fracturing his eye socket and sinus cavity. Then they grabbed the 11-year old daughter. The pregnant wife and mother was able to retrieve the family AR-15 from a bedroom and fire, killing one of the attackers while the other fled. It does not require much imagination to think what would have happened next if the woman had lived in California and could not possess such a firearm. 

People do not remember the disabled 61 year-old man living alone on a 20-acre property in Florida with dense woods and a long dirt driveway. After the homeowner had gone to bed, three men armed with a shotgun, pistol, and BB gun invaded. One wore a “Jason” hockey mask. The disabled victim said he was awakened by a loud noise and grabbed the AR-15 laying near his bed. He saw the masked man and a second man coming toward him inside his home. Gunfire was exchanged. By the time police arrived, one attacker had run away, one lay wounded outside, and one was dead on the dining room floor. Police found the disabled man in his bedroom alive, but bleeding from a gunshot wound to the stomach. The AR-15 lay across his legs. Without his modern rifle, the victim would have become an evidence tag and a forgotten statistic.

People do not hear about the AR-15 used by a young man in Oklahoma to defend himself from three masked and armed home invaders clothed in black. The three intruders broke through a rear glass door. Though outnumbered, the homeowner put up a successful defense with his AR-15. People do not hear about the AR-15 that was needed when seven armed and masked men burst through a front door at 4:00 a.m. firing a gun. Outnumbered seven to one, it took the resident 30 rounds from his AR-15 to stop the attackers.

California’s “assault weapon” ban takes away from its residents the choice of using an AR-15 type rifle for self-defense. Is it because modern rifles are used so frequently for crime? No. The United States Department of Justice reports that in the year 2021, in the entire country 447 people were killed with rifles (of all types). From this one can say that, based on a national population of 320 million people in the United States, rifles of any kind (including AR-15s) were used in homicides only 0.0000014% of the time. Put differently, if 447 rifles were used to commit 447 homicides and every rifle-related homicide involved an AR-15, it would mean that of the approximately 24,400,000 AR15s in the national stock, less than .00001832% were used in homicides. It begs the question: what were the other AR-15 type rifles used for? The only logical answer is that 24,399,553 (or 99.999985%) of AR-15s were used for lawful purposes. 

Can we get a round of applause for Judge Benintez please?

The State’s attempt to ban these popular firearms creates the extreme policy that a handful of criminals can dictate the conduct and infringe on the freedom of law-abiding citizens. As Heller explains, the Second Amendment takes certain policy choices and removes them beyond the realm of permissible state action. California’s answer to the criminal misuse of a few is to disarm its many good residents. That knee-jerk reaction is constitutionally untenable, just as it was 250 years ago. The Second Amendment stands as a shield from government imposition of that policy.

There is only one policy enshrined in the Bill of Rights. Guns and ammunition in the hands of criminals, tyrants and terrorists are dangerous; guns in the hands of law abiding responsible citizens are necessary. To give full life to the core right of selfdefense, every law-abiding responsible individual citizen has a constitutionally protected right to keep and bear firearms commonly owned and kept for lawful purposes. In early America and today, the Second Amendment right of self-preservation permits a citizen to “‘repel force by force’ when ‘the intervention of society in his behalf, may be too late to prevent that injury.’” Unfortunately, governments tend to restrict the right of armed self-defense. Punishing every good citizen because bad ones misuse a gun offends the Constitution. A state supreme court in 1878 said it succinctly: “If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege.” “Today . . . many Americans have good reason to fear that they will be victimized if they are unable to protect themselves. And today, no less than in 1791, the Second Amendment guarantees their right to do so.

You can read the full opinion here.

Just as he did in Duncan, Judge Benitez enjoined the state from enforcing its ban on scary-looking long guns…and stayed the order for 10 days to allow the state to appeal.

If you’ve been following what’s happened with Duncan, the path for Miller will be very much the same. Attorney General Rob Bonta will once again ask the Ninth Circuit Court of Appeals to stay Judge Benitez’s order until the case can be heard and decided at that level. Just as they did with Duncan, the Ninth Circuit will, of course, grant the AG’s motion and Californians’ Second Amendment rights will continue to be infringed for years while the Ninth Circuit slow-walks the process. Same as it ever was.

In time — probably a great deal of time —  both Duncan and Miller will result in the fall of the “high capacity” magazine “assault weapons” bans in the Golden State. Until then, the Second Amendment will remain a second class right in America’s most populous state.



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  1. “I’m on my way to Israel.I’ll be meeting with those impacted by the horrific terrorist attacks and offering California’s support**.” Gavin Newsom Twitter 10/19/23**

    It’s going to be funny watching him complain about armed Californians while he’s in Israel which has just started arming its citizens by relaxing gun control.

    • He just needs to explain to the Israelis how they’d all be safer if they double-down on disarming themselves.

      The road to lasting peace will be hard but once Hamas has killed every last Israeli there will be peace and historians will write how it was brave Newsom and his relentless pursuit of those evil guns that finally brought peace to the region without the need for the tenuous and precarious two-state pseudo solution.

  2. You got to love the detail the Judge gave knocking down the states bogus list of historical regulations starting around page 25 of the ruling.

    • Good to love Benitez

      “An AR15 with normal parts is banned but the same AR15 with an awkward shark fin grip, and an unmovable stock and barrel compensator in place of a flash hider shooting the same in ammunition is fine”

  3. As with the previous ruling, why is Benitez giving the state the opportunity to challenge it instead of having a “freedom week” again?

    He knows the games the 9th will play, he knows it will be stopped, he knows he is correct, what purpose does giving them more time to defy our rights serve?

    • He’s likely hoping that the scotus will finally step in and bitch slap the state.

      Illinois drug it’s feet until the court gave them 30 days to come up with a workable permit system or go constitutional carry.

  4. Benitez is playing the game well. His moves will force the hand of the 9th Circuit and they will be pissed and lose.

    • “His moves will force the hand of the 9th Circuit and they will be pissed and lose.”

      Wrong, the 9th will drag their feet as long as they can, and rule Benitez was wrong, forcing the case to the SCotUS for consideration, in a few year’s time. (2 or 3 years, maybe?)

      We had better hope nothing happens to our SCotUS picks in the meantime… 🙁

      • It’s going to be a lot harder for the Ninth to play the game they did in Duncan.

        There was no en banc decision in Miller, so they can’t play the “comeback case” game. After a panel decision, if there is an en banc call, it will be voted on by the active judges on the Ninth Circuit (including the PDT appointed judges, and excluding the senior status judges that were part of the Duncan en banc panel).

        And, of course, there’s the SCOTUS shadow docket . . . .

        Next month is gonna be interesting.

        • I would be mad that California is likely to beat NY to some of these decisions but realistically they likely have the better chance of a good precedent if it doesn’t go to the supreme court which can be referenced or used in a circuit split whenever the second stops dragging ass.

        • At this point, the Ninth Circuit is just Calvinball. It’s a Second Amendment case, so there are no rules.

        • CarlosT has it right. See the recent dissents in Duncan, in which Ninth Circuit judges say as much.

          But procedurally, the Ninth is pretty screwed in both Duncan and Miller. In both cases, there has been a full trial, complete with findings of fact. Unless there is NO evidence to support the fact finding, it’s almost impossible to overturn those on appeal. So besides the Bruen test — which I believe was designed with recalcitrant courts like the Ninth Circuit in mind — being insurmountable, the Ninth is going to have to explain how they can disregard adverse findings of fact after a trial. And any appellate attorney will tell you that’s essentially impossible.

          Notwithstanding these huge legal hurdles, I have little doubt that the Ninth Circuit will eventually just make something up (after, of course, sitting on the cases as long as possible). As the most recent en banc decision in Duncan proves, the rule of law at the Ninth Circuit truly is Calvinball when the Second Amendment is the issue.

          But it’s now going to be so obvious that SCOTUS will have many easy ways to reverse. And I give pretty good odds that there will be a SCOTUS shadow docket order vacating the stay, especially if the Ninth does not expedite the appeal.

        • “…being insurmountable, the Ninth is going to have to explain how they can disregard adverse findings of fact after a trial. And any appellate attorney will tell you that’s essentially impossible.”

          From their POV, easy. Guns are too dangerous for the little people to posses. That’ll be the gist of their ruling.

          You, I, and everyone else knows full well we won’t always hold the SCotUS, and they will simply bide their time until that day comes, the rat bastards.

          It will not matter how patiently it gets explained to them by Thomas, once they have the votes, ‘Heller’, et. all is history… 🙁

        • Replying to your second comment about the standard of review of findings of fact, you are of course correct. But that rule hasn’t stopped the Ninth before, as reflected in its (reversed) opinion in Young v. Hawaii concluding that there was no right to bear arms outside of one’s home. The majority on the en banc panel in Duncan, which will likely take this case before a regular panel gets a crack at it, is likely to engage in the same type of twisted logic to achieve the desired result of upholding the ban. And the reason it will be able to do so is that almost all of the evidence, aside from the rejected expert opinions, is historical evidence of prior statutes and ordinances, among which it will conveniently pick and choose those that supposedly support the power of the Legislature to ban an “dangerous OR unusual” firearms that are not actually commonly USED (i.e. fired) for self-defense.

        • Mark N:
          In Young v. Hawaii, the district court 12b6’d the plaintiff’s claims. That’s a very different kettle of fish from Duncan and Miller, where there was a TRIAL ON THE MERITS and the Court found the State hadn’t carried its burden to prove the constitutionality of the statute (under either intermediate scrutiny or THT).

          We agree that CTA9 will likely make something up, because to them gunz = icky, ergo plaintiff always loses.

          But they are going to have a very hard time putting lipstick on this pig — much harder than in Young.

  5. What is to stop Miller getting put into the same waiting pattern as Duncan? It is rather clear that both these cases a monumental. I think an appeal should be made to SCOTUS. They are clearly delaying the inevitable.
    Ultimately if they choose to continue fighting this out, either the 9th will have to rule in favor of the people or it will go to SCOTUS and that ruling will kill bans in all 50 states.
    Duncan was already kicked back from SCOTUS for the 9th to get it right. Having go back to SCOTUS again will just piss them off.

    • “Ultimately if they choose to continue fighting this out, either the 9th will have to rule in favor of the people or it will go to SCOTUS and that ruling will kill bans in all 50 states.”

      It will most likely do more than that, thankfully.

      They had a chance to do the right thing on shall-issue for *years* and refused to do so, forcing Thomas to give them the “One-step too many” ‘Bruen’ ruling, removing ambiguity.

      I really hope Thomas gives them the ‘NY Pistol v. Bruen’ “One-step too many” treatment on *EVERY 2A* case from here on out… 😉

      • Or they could try the NYC ploy of amending their law prior to hearing, thus mooting the appeal, or in the alternative negotiating a settlement with plaintiffs for (some) changes in the California statute (unlikely as the Governor will not sign off), thus mooting the appeal and avoiding a judgment applying to all states. On ne sait jamais.

    • For one, Plaintiffs are not appealing, so they cannot take the case to the Supreme Court. Second, direct appeals are allowed only in limited circumstances as to federal statutes declared unconstitutional, which is not the case here. So it has to go through the process, notwithstanding we already know the outcome, because the Supreme Court reviews the decision of the Circuit Court that hasn’t happened yet. More importantly for our purposes, the Ninth will have to lay down its hand, which, if unfavorable to us, may allow for a thorough spanking by the Supreme Court.

      • Mark N.,

        What spanking? If all that happens is the Supreme Court overrules them, so what? Unless the Supreme Court levies serious personal sanctions on those justices, there will be no “spanking”.

        • There is no authority for sanctions by one court to the judges of a lower court. Moreover, judges are absolutely immune from liability for their decisions. But no court likes to be overturned–it is a personally embarrassing blemish on their judicial record. The way a spanking is administered is by the issuance of a scathing decision castigating the lower court, and remanding the case only for entry of final judgement and an award of costs. (No second chances.)

        • But no court likes to be overturned

          I don’t think the Ninth Circuit cares anymore. They’re off in their own private jurisprudential universe. The Heller and now Bruen standards are clear, but they continue to rule the same, every time.

        • Shadow docket orders vacating the CTA9 stays pending appeal would go a long way here.

          What you could see (and what I am hoping for) is for SCOTUS to start issuing summary GVR’s (grant cert petition, vacate lower court decision, remand/reverse) on Ninth Circuit 2A rulings, with a concurrence by Alito or Thomas that calls out the Ninth Circuit (and Second and Fourth) and literally says, “we can and will knock you down every time you do this. Knock it off.)

  6. Has anyone heard about potential new charges for Alec “An actual lady-killer” Baldwin?

    “Prosecutors to recharge Alec Baldwin for ‘Rust’ shooting”

    “Oct 17 (Reuters) – New Mexico prosecutors on Tuesday said they intended to recharge actor Alec Baldwin with involuntary manslaughter for the fatal shooting of “Rust” cinematographer Halyna Hutchins in 2021.

    Baldwin’s case will be brought before a grand jury in mid-November, special prosecutor Kari Morrissey said.

    The move followed results of an independent forensic test that found Baldwin had to have pulled the trigger of a revolver he was rehearsing with for it to fire the live round that killed Hutchins and wounded director Joel Souza.

    The finding was the same as a previous FBI test on the firearm.

    “After extensive investigation over the past several months, additional facts have come to light that we believe show Mr. Baldwin has criminal culpability in the death of Halyna Hutchins and the shooting of Joel Souza,” Morrissey and Jason Lewis said in a statement.”


  7. These decisions will do no good until these attorney generals and other lawyers including lawmakers are disbarred and face jail time .

    • We already know the answer to that from the shenanigans the en banc panel that first decided Duncan v. Bonta a number of years ago (reversing a Judge Benitez ruling). That 11 member en banc panel, with a majority of anti-gun judges, most of whom are now “senior status” judges, has decided that it can simply grab the Duncan case and decide it without the benefit of a review by the usual three judge panel. It even grabbed and decided the State’s motion for a stay (granting it of course and pointedly concluding that the state was “likely to succeed” on the merits), taking the case away from the motions panel that should have decided the question. One of the conservative members of the panel was absolutely furious, ion a strongly worded dissent, he suggested that the fix was in.

  8. Big deal. I’ll be dead of old age before the 9th Circuit lets it go. Got old waiting for SCOTUS to get off their dead asses.

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