Judge Roger Benitez AR-15 assault weapon rifle
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Federal Judge Roger Benitez (a/k/a “Saint Benitez” to the 2A faithful) has just entered an interesting order in Miller v. Bonta, the challenge to California’s “assault weapons” ban. It’s not a decision on the merits, but I read it as a pretty clear indication of where he is going and the fact that he intends to try and make his decision appeal-proof.

Recall that after a trial to the bench, Judge Benitez ruled that California had failed to establish that its AWB satisfied either the “text, history, tradition” standard, or the “intermediate scrutiny” test then being used by the Ninth Circuit in Second Amendment cases. He thus invalidated the California “assault weapons” ban.

An appeal was taken, and the Ninth Circuit stayed the case pending resolution of another Ninth Circuit case (Rupp v. Bonta).  While that stay was in place, SCOTUS handed down Bruen, which adopted “text, history, tradition” as the sole test in Second Amendment cases.

That led the Ninth Circuit to punt the Miller v. Bonta appeal back to Judge Benitez “for further proceedings consistent with” the Bruen decision. To me, this was a dodge/delaying tactic, as Benitez’s decision already held that California lost under the “text, history, tradition” test that Bruen adopted, and thus the Court should have simply proceeded with the appeal.

On remand, California essentially asked for a “do-over” where it could take discovery, introduce new evidence, etc. That generally isn’t allowed unless the court (or the court of appeals) has ordered a new trial. Remember, there has already been a trial and a decision in the case. Benitez thus denied the state’s various motions and merely requested additional briefing, which has now been filed.

After a status conference earlier this week, the following minute entry just dropped (h/t Cody Wisniewski of the Firearms Policy Coalition for notifying me) . . .

    • 2022-12-12: Minute Entry for proceedings held before Judge Roger T. Benitez: Status Conference held on 12/12/2022. The state defendants shall create, and the plaintiffs shall meet and confer regarding, a survey or spreadsheet of relevant statutes, laws, or regulations in chronological order. The listing shall begin at the time of the adoption of the Second Amendment and continue through twenty years after the Fourteenth Amendment. For each cited statute/law/regulation, the survey shall provide: (a) the date of enactment; (b) the enacting state, territory, or locality; (c) a description of what was restricted (e.g., dirks, daggers, metal knuckles, storage of gunpowder or cartridges, or use regulations); (d) what it was that the law or regulation restricted; (e) what type of weapon was being restricted (e.g., knife, Bowie Knife, stiletto, metal knuckles, pistols, rifles); (f) if and when the law was repealed and whether it was replaced; (g) whether the regulation was reviewed by a court and the outcome of the courts review (with case citation). Defendants may create a second survey covering a time period following that of the first list. If opposing parties cannot agree on the inclusion of a particular entry on the survey, the disagreement shall be indicated and described on a separate list. The survey list shall be filed within 30 days. Parties may file a brief up to 25 pages within 30 days thereafter focusing on relevant analogs. Parties may file a responsive brief within 10 days thereafter. Parties shall agree within 20 days on deposing Mr. Roth and Mr. Cramer at an agreed place and time.

What this means:

  • The Court is laser-focused on the state of the law in 1791, but will also at least listen to arguments about what the state of the law was between then and shortly after 1868 (when the Fourteenth Amendment was ratified). But while he’ll also let California file whatever they want regarding subsequent developments in the law, it’s pretty clear that Judge Benitez isn’t interested in that. For a very good analysis of why the only relevant consideration is what the law was in 1791, see this essay by Second Amendment guru Stephen Halbrook, as well as Justice Barrett’s concurrence in Bruen (pp.82-83 of the opinion).
  • Benitez is making the parties present it as a joint report. To me, that’s clearly directed to minimizing the possibility of evidentiary objections on appeal.
  • The stuff he’s asking for has been exhaustively documented already (see the Bruen opinion on this). I think Benitez knows it’s not going to contain much if anything that hasn’t been covered already.
  • I’m assuming that Roth and Cramer are California’s proposed new “expert witnesses,” and he’s allowing their depositions to perpetuate their testimony. In light of his earlier rulings, I suspect he’ll stick to his guns that California doesn’t get a “do-over,” but by doing this he can probably make some additional findings (e.g., “I’ve already ruled the state doesn’t get a do-over, but even if I reopened evidence and considered this proffered new evidence, it wouldn’t change my previous findings”). Again, I see it as Benitez thinking three moves ahead to make his decision bulletproof.

This probably pushes any decision in this case 90 days or so. While the wheels of justice do grind slowly, in this case I foresee them crushing the state of California’s gun control ambitions. Watch this space.

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  1. Good. There is no valid reason for CA’s fascist gun control regime. None. I am an American citizen and my rights are not set aside because of my zip code. Owning or carrying a firearm, regardless of type or capacity is not a crime. It only becomes a crime if I misuse it.

    • pretty kick ass. he’s determined not to be undermined.
      too bad there’s no analog for the seventh.
      rough seas ahead. how does the ravenous bugblatter beast of traal move forward with this nonsense? i’ve got that sweaty clown’s virtue signal hangin’.

      • “…ravenous bugblatter beast of traal…”

        That one’s going to bounce around in my noggin’ for a while. Kinda grows on you.

        • Per The Hitchhiker’s Guide to the Galaxy, when confronted by the Ravenous Bugblatter Beast of Traal, it is advisable to wrap a towel around one’s head to avoid its gaze. The reason for this is that the Beast is so unbelievably dense that it instinctively assumes that, since you cannot see it, it cannot see you either.

          Not unlike many California politicos . . . .

        • “…when confronted by the Ravenous Bugblatter Beast of Traal, it is advisable to wrap a towel around one’s head to avoid its gaze.”

          Whoa, you mean even the galaxy-renown ‘Peril Sensitive Sunglasses’ are no match for that? 🙁

    • I agree, but they made those things a crime and the police in your state enforce those laws. Living your entire life with rights that you can’t access is a sad state of existence and not one that truly free individuals should abide.
      Resistance to tyranny is obedience to God. That, from a man who spent a fair amount of his life in prison for exercising his rights. If you peacefully accept tyrannical behavior then you don’t have much room to complain.

        • “I’m not a bible thumper.” Ha. No just someone who hates people because they have nice things. Go on and keep driving your Yugo and carrying your third hand Glock 19. 😎😎😎😎😂😂😂😂

        • So says an anonymous troll without the testicular fortitude to identify itself. What are you hiding little piggie?

          That, is the real 😎😎😎😎😂😂😂😂…

        • The sentiment is more political philosophy than Bible thumping, especially considering that it’s not from the Bible. Although, Kalifornia could probably stand a little Bible thumping considering the direction it’s been heading.

  2. On this day 232 years ago, the 10 most important Amendments in the U.S. Constitution were ratified and became the cornerstone of all Our Freedoms and Liberties. Without which the likelihood that post, could have been made is highly in doubt. Keep Your Powder Dry…

  3. This is going to be fascinating. The most common firearms available at the time were muzzle loader muskets. While they were single shot, they were very large caliber, sixty-nine caliber or greater. In addition to loading massive projectiles of an ounce or more, people routinely loaded heavy buckshot or buck and ball. Buck and ball loads can generate the wide dispersion that shotguns are undeservedly renowned for. This enabled people to fire dozens of potentially lethal projectiles to engage multiple assailants with only one shot. Colonials were also in the habit of carrying multiple firearms as well as knives, tomahawks and swords as backup weapons.

    • The Girardoni (also spelled Girandoni) air rifle was a very advanced design adopted in 1780 by the Austrian Army. While the standard arm of the day was a single-shot flintlock, the Girardoni offered a massive firepower advantage to the men who carried it. It was an “air rifle” with the first ten shots lethal to about 150 yards, the next 10-15 shots would be lethal to about 100 yards and the remaining 10-15 shots would be lethal to about 75 yards.

      The guns (designed by Bartholomäus Girardoni, of Vienna) had a magazine capacity of 22 round balls, which could all be fired within 60 seconds. The balls were .46 caliber, weighing approximately 153 grains, and were propelled at 400-450 feet per second. They were rumored to be silent, but actually had a loud report (although quieter than gunpowder firearms). One of these rifles was carried by the Lewis & Clark expedition into the American West.

  4. When repeating rifles were first introduced….back in the 1860s, then shortly after the Winchester Rifle that “won the west” by today’s standards those would have been “wooden scary rifles” but the west sure didn’t run out and ban them now did they!

    It sure sucks for those commie gun-grabbing pinko fa— demonrat California dirt-bags!

  5. I’m wondering if this can provide a stepping-stone for overturning Oregon’s de facto denial of rights through the OSP system of delay, delay, delay and the plainly stated witch hunt behind it. When the OSP flat out tells a gun purchaser that they’re trying to find something they can construe as domestic violence and won’t release the person’s gun until they’ve failed to manufacture the desired ‘evidence’, the entire agency needs to be slapped down hard. There are people who have been waiting 4, 8, 12, 15, 18, or more months, along with some where it’s been nearly two years. If I were a judge I would order every gun released and a payment of $10 per day of waiting beyond the federal three to all the people whose rights they’ve been denying.

  6. Cannot imagine that any court of appeals in Californication can be stopped from granting appeals and stays and appeals and stays and appeals, regardless of SC and trial court decisions, if the 9th circuit appeals courts don’t want to adhere to an SC decision.

  7. When I want courtroom drama I’ll watch The Lincoln Lawyer again and ignore what’s his name is everything but the character he played.

  8. And then, there’s Ill&annoyed, Ore-be-gone, et al.
    This is the long game plan. Spend taxpayers $$$ and keep things tied up in the courts.
    And just read thru a story about today’s congressional hearing on “gun violence”.
    It is crystal clear the Dims won’t stop until they can outlaw private firearm ownership and disarm all law abiding Americans.

    Keep your powder dry, ladies & gents.
    There’s a storm on the horizon.

  9. Benitez sounds like a mezkin name to me. California.
    Well it’s a good thing I ain’t King.
    Judge, judge, here comes the judge.
    Ain’t no more Judge MentDay, New York just proved how fearful a state is of Judge Supreme.
    Moma’s got a new baby.
    I dont whant, whant
    No reeealsonship
    With a broke bitch
    Call it what you whant too
    Call it what your going to
    Yeah Yeah

  10. The 2nd Amendment has never been amended or change, therefore the text, history and tradition as understood in the 18th century is all that matters. The Supreme Court has already laid out the meaning of all 3 in at least 4 cases. The 14th Amendment merely incorporated the 2nd Amendment to the various states, as originally it only applied to the Federal government. The court can ONLY look to the 19th Century to confirm the 2nd Amendment, not to approve new restrictions. Hopefully the Judge understands this and expresses it in his opinion. All these state and federal laws are 100% done.

    • “All these state and federal laws are 100% done.”

      Can you elaborate, and point out some source material?

      Seems all the gun control laws are “still on the books” (not overturned/repealed), and being enforced while lawfare continues.

      One wonders why the SC did not simply vacate 2A decisions, but instead also “remanded”.

      • It’s standard appellate procedure.

        SCOTUS can’t simply “decide” the merits of a case, only the narrow legal issues on appeal. If, as in the majority of 2A cases, the court below dismissed a challenge, there still will have to be fact findings that have to be made to close out the case (amount of damages, costs, fees, etc.) that appellate courts just don’t make.

        It’s pretty rare for SCOTUS to reverse and render in civil cases, especially in cases like 2A challenges.

        • “It’s pretty rare for SCOTUS to reverse and render in civil cases, especially in cases like 2A challenges.”

          Seems odd, that. If the SC were to declare any state/federal action utterly unconstitutional, is the SC obligated to concern itself with impacts to the parties of the suit?

          In “Brown v. BOE”, was the case remanded for review? Were there any considerations for “damages” etc. regarding the litigants?

          Seems that if the SC declared something unconstitutional on its face, the ligiants have remedies available in lower courts for “costs and damages”, and such would be irrelevant to an SC decision.

        • Sam, I suggest you actually read the Brown opinion:


          It was a class action suit that was consolidated with many other suits raising the same issue, and as you’ll see at the end of the opinion the court required additional briefing post-decision on how to deal with how it should deal with exactly these kinds of issues, which largely were dealt with by remands of the individual cases back to the district courts for further proceedings consistent with the opinion.

          And, of course, desegregation litigation continued for decades. It’s the nature of the beast: lawsuits are inherently inefficient instruments for addressing public policy.

          Even when painting with a very broad brush (as in Brown), SCOTUS is still confined to its role as a court: It can only decide the particular case before it. Because a SCOTUS ruling on the law of that particular case is binding on all lower courts, it may well have broad legal implications (see, e.g., Brown, Dobbs, Bruen), but SCOTUS cannot simply issue decrees that address more than the particular case before it.

          E.g., in Bruen, it declared the NY law to be unconstitutional and enjoined its enforcement; i.e., there is now a court order prohibiting NY from enforcing the particular law declared unconstitutional. If NY officials ignore that court order and try to enforce that particular law, they are in contempt.

          Could the Court have just said “and while we’re at it, we are also enjoining the enforcement of similar state laws”? While the legal ruling in Bruen will inevitably lead to such a result, the Court cannot take such a shortcut, because those states are not before the court in that case. Like any party, they are entitled to due process before having a court order entered against them.

      • “One wonders why the SC did not simply vacate 2A decisions, but instead also “remanded”.”

        I took it a sign that Thomas intended to metaphorically stick a knife in them and twist it good and hard thanks to Bruen.

        Several times in the past Thomas has mentioned in dissents that he was tired of the 2A not getting the same respect as the other civil rights. What better way to humiliate them by forcing them to correctly rule on the case?

        Watching the Leftist Scum ™ eat a double-helping of humble pie in public is very satisfying, and I’m looking forward to the Bruen decision making them eat many more plates in the future… 🙂

    • From a legislative standpoint, you are correct. but…
      Anytime you see a reprint of the amendment which contains more than one comma, you are looking at a silent amendment which undermines the intent of the states ratifying the Second Amendment. Why?
      It is true that the amendment, as presented to the states for ratification by Congress contained the three commas. It is also true that the form of the amendment ratified by the states and certified by the Secretary of State contains only one comma which is located in the middle to clearly separate the subordinate clauses from the primary.
      I have no idea whether this was caused by the copies to the states being inaccurately copied, whether the states changed them, or how it happened that Thomas Jefferson certified it, but a one-comma Second Amendment is the correct version and the only one which should be considered for discussion or ruling on related issues

  11. On the one hand, I applaud Benitez’ fidelity to the Constitution, and wish him well.

    OTOH, . . . WHY the f*** is this even being discussed???? What part of “shall not be infringed” do you not comprehend??

    • “WHY the f*** is this even being discussed????”

      Stupid people living in stupid places (read, California) require detailed explanation of even the simplest concepts, that’s why… 🙂

      • Geoff,

        Wasting the time, effort, and energy trying to explain ANYTHING to ANYONE stupid enough to remain in CA is a a futile and unproductive waste of time.

        Either they ALREADY “get it”, and are just remaining because of kids in school or something similar (myself, for about 10 years), or they’re simply too stupid to comprehend how completely f***ed the state is.

        Binary solution set.

  12. “All these state and federal laws are 100% done.”

    Can you elaborate, and point out some source material?

    Seems all the gun control laws are “still on the books” (not overturned/repealed), and being enforced while lawfare continues.

    One wonders why the SC did not simply vacate 2A decisions, but instead also “remanded”.

    • “One wonders why the SC did not simply vacate 2A decisions, but instead also “remanded”.”

      See my comment a few above for that answer… 🙂

  13. And of course, literally the DAY AFTER the Court’s opinion confirming the unconstitutionality of the statute becomes final, California will pass yet another law with essentially the same provisions as that just pronounced unconstitutional–and the great cycle of “I’m a liberal the constitution does not apply to me) continues……

    • NFA will not be overturned for the same reason we still have Obamacare. Congress has the right to levy taxes. NFA didn’t outlaw anything, just required a tax be paid. GCA and the Hughes Amendment are up for destruction though.

      • “NFA didn’t outlaw anything, just required a tax be paid.”

        Google ‘Poll Tax’, you cannot charge someone to exercise a civil right.

        What they can do is re-name it as a paperwork and extensive background check fee. That will pass constitutional muster… 🙁

      • Playbook for the Ninth Circuit will be to stay Benitez’s injunction and then sit on the appeal for as long as possible. Young v. Hawaii is an example of how they can delay a case for literally years by just refusing to rule on it.

        Countermove will be to appeal the stay of the injunction to the SCOTUS shadow docket, where I think there may be enough votes to overrule the order granting a stay. I could also see the Court saying “we’re going to abate ruling on the motion to vacate the stay to allow the Ninth Circuit to handle this on an expedited basis, but if it hasn’t ruled within x days we’ll consider the motion.”

        SCOTUS *does* have the power to take cases up directly (such as what it is doing with the challenges to Biden’s student loan forgiveness decree), but I strongly doubt they will do that here. That’s an extremely rare beast.

  14. “While the wheels of justice do grind slowly, in this case I foresee them crushing the state of California’s gun control ambitions.”

    They may grind slowly, but they grind exceedingly fine.

  15. I want to know when court decisions will finally strike down the laws in states which outlaw carrying readily accessible and/or loaded rifles and shotguns in vehicles.

    • Good question, Uncommon.

      Perhaps loaded with a chamber flag visible would be an acceptable compromise?

    • Sorry about that. I checked with Cody (FPC attorney, but not on this case) as to who “Roth and Cramer” were, and he advised he thought they were the state’s experts.

      To the extent you can answer (if you cannot or think it might be imprudent, I understand), did the Court express why he was allowing depositions to be taken? Unless / until he grants a Rule 59 motion or a new trial is ordered by the Ninth Circuit (neither of which have occurred), I do not see how additional testimonial evidence comes in: the trial record is complete, and the Rule 59(d) clock (for a sua sponte order of a new trial) expired LONG ago.

      If you’d rather take this discussion offline, drop me a note at [email protected].

  16. Meanwhile, Washington is probably going to pass its own assault weapons ban next year. This is going to be the worst in the nation, because “assault weapon” is defined in Washington state law as any semi-automatic rifle, so a Ruger 10-22 is covered.

    It’s so frustrating.

      • That didn’t stop the initiative that set the definition in the first place, years ago. Those of us who saw that in the text saw this coming, but Western Washington Democrats dominate the state, and billionaire-funded anti-gun groups flood the zone with political messaging. In this state, Seattle pretty much always gets what it wants.

    • “Meanwhile, Washington is probably going to pass its own assault weapons ban next year.”

      Once enacted, could a federal court order a stay on its implementation, pending the court’s decision?

      • I believe it could be stayed by either federal or state courts, but I’m not highly confident in either.

        Theoretically, gun control should be a non-starter in Washington state, since the state constitution has a right to bear arms guarantee that is clearer and stronger than the Second Amendment:

        “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.”

        However, our state Supreme Court isn’t about to take that seriously, so anything goes in terms of gun control. So, if we’re lucky, maybe someday the clearly defined logic of the Heller, MacDonald, and Bruen decisions will actually be applied and the laws will be struck down. Until then, they’ll get passed and enforced against us for years.

  17. The problem I see here is the relarionship to the 14th amendment.
    Bruen references text, history, and tradition at the time of the 2nd Amendment, not the 14th.
    Liberals are trying to stretch that to the 14th amendment because there was a swath of anti-gun laws post civil war. Even the Texas constitution was amended after the civil war to state the regulation of wearing of arms.
    So, we must stop this extension to the 14th amendment and make sure the 2nd and 14th amendments stand independently or we will get draconian post civil war regulations which is what we had before any CCW laws started to pass.

  18. foreigner here. God bless Judge Benitez
    I bring my guns to CA every year from abroad to do a little USPSA. This oughtta bring some sanity back

  19. Foreigner:

    Please elaborate on your country of origin and the gun laws that may be in effect there and which, apparently, make you admire Judge Benitez’s judgement.


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