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.