Assault Weapon AR-15 assault rifle
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By Chuck Michel

United States District Court Judge Roger Benitez meant it when he took his oath to uphold the Constitution as he was sworn in as a federal judge in 2004. Indeed, in recent years, he delivered bold and comprehensive pro-Second Amendment decisions in CRPA-supported cases Duncan (challenge to magazine capacity limits)and Rhode (challenge to ammunition sales bans and background checks). And, on June 4, 2021, he issued a 94-page opinion in Miller v. Bonta that vigorously scrutinized the “evidence” the state offered in support of California’s “assault weapon” ban, found it woefully inadequate, and declared California’s laws banning common “assault weapons” (like the AR-15) unconstitutional.

The arguments Judge Benitez addressed in Miller are the same arguments that CRPA made in Rupp v. Becerra—a challenge to California’s “assault weapon” ban already on appeal to the Ninth Circuit. (Rupp is fully briefed and argued but is stayed at the Ninth Circuit pending resolution of other important Second Amendment cases noted below).

In his opening paragraph, Judge Benitez observes,

Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. 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). Yet, the State of California makes it a crime to have an AR- 15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.

Judge Benitez further observes . . .

“The Second Amendment protects modern weapons.” A few pages later, he adds, “Modern rifles are popular. Modern rifles are legal to build, buy, and own under federal law and the laws of 45 states.” Perhaps most importantly, Benitez notes that California’s ban on such firearms “has had no effect” on shootings in the state and that “California’s experiment is a failure.”

Judge Benitez’s June 4 ruling in Miller is a final trial decision. Originally, the plaintiffs requested a preliminary injunction—a request for immediate relief, based on limited evidence, to be put in place pending the final resolution of the case at trial based on a complete body of evidence. But, in limited instances when it is appropriate, a preliminary injunction request can be consolidated with a trial. That is what happened in Miller.

Most significantly, this ruling has no immediate impact. Usually when a federal judge enters an order for injunctive relief, that order takes effect immediately. But Judge Benitez’s ruling includes an automatic 30-day stay of his order. This gives the state time to appeal to the Ninth Circuit, which the Attorney General has already promised to do [ED: The state filed its appeal yesterday]. So, for now at least, nothing changes. Don’t go reconfiguring your rifle just yet.

WHAT HAPPENS NEXT AT THE NINTH CIRCUIT?

Judge Benitez’s decision to stay his own order out of the gate makes sense. First, the Department of Justice would have no doubt obtained a stay sooner or later, whether from Judge Benitez or under the rule that allows the Ninth Circuit to grant a stay. Recall that both Duncan and Rhode were stayed, albeit with some time between Judge Benitez’s order and the stays becoming effective.

California Attorney General AG Bonta
California Attorney General Rob Bonta announces the state has appealed the Miller v Bonta ‘assault weapons’ ban decision to the Ninth Circuit Court of Appeals.

But second, and more importantly, an automatic stay decreases the likelihood of confusion among gun owners caused by a time gap between the entry of Judge Benitez’s order and the entry of the stay—a gap during which “assault weapons” theoretically would have been unregulated. Had there been a gap, some people would inevitably (and illegally) modify and reconfigure their presently California-compliant firearms into “assault weapon” configuration.

This would be a big mistake.

We know with certainty that the state will appeal Miller to the Ninth Circuit. It will then take at least a year for a final ruling from a standard three-judge panel if there are no extended delays. But the Miller appeal will almost certainly be stayed at the Ninth Circuit, pending rulings in other important Second Amendment cases—like DuncanRhode, and Rupp—that are already on appeal at the Ninth Circuit. So, an extended delay is likely.

Indeed, Second Amendment law in the Ninth Circuit is facing a bottleneck right now. The reason is the extraordinary success of DuncanDuncan won at both the district court level (in Judge Benitez’s courtroom), and then won again before a three-judge panel at the Ninth Circuit.

In line with the Ninth Circuit’s hostility toward the Second Amendment, an 11-judge en banc panel will rehear Duncan on June 22nd. Because Duncan could have a tremendous impact on Second Amendment law in the Ninth Circuit, other Second Amendment cases at the appeal stage have been “stayed” or “held in abeyance” pending the resolution of the Duncan en banc rehearing.

That is the situation with RuppRhode, and likely with Miller.

CRPA’S MOST RECENT CHALLENGE TO CALIFORNIA’S ‘ASSAULT WEAPON’ BAN

CRPA’s efforts to overturn California’s magazine ban in Duncan and ammunition laws in Rhode are just two fronts in CRPA’s sophisticated legal campaign to defend the Second Amendment. Long before Miller, CRPA launched a direct challenge to California’s “assault weapon” ban that is already at the Ninth Circuit. That matter, Rupp v. Becerra, was filed in April 2017 and has been on appeal since August 2019.

The Rupp case is fully briefed and argued, but is stayed at the Ninth Circuit pending resolution of Duncan. The Ninth Circuit panel of judges decided to essentially pause the case because of the impact that the Duncan en banc rehearing (scheduled for June 22, 2021) may have on Second Amendment law in the Ninth Circuit.

Regardless, Rupp is ahead of Miller in the Ninth Circuit, challenges the same laws, involves the same legal issues, and has already been argued. So, while it is heartening to read another brilliant evisceration of California’s gun control regime penned by Judge Benitez, Miller will likely have little impact and will be caught up in the bottleneck of cases already waiting at the Ninth Circuit.

WHAT WILL THE SUPREME COURT DO?

The Supreme Court will soon hear New York State Rifle & Pistol Association, Inc. v. Corlett, which will very likely reset the legal test that courts apply to Second Amendment questions. The current composition of the court makes a pro-Second Amendment decision look very possible.

Because the Ninth Circuit is just as aware of this as we are, there is a good chance that the Ninth Circuit will stay Duncan, citing Corlett as the reason, after it conducts the en banc oral argument in Duncan.

If that happens, then all the cases that are being stayed pending Duncan will essentially remain stayed as well until the Supreme Court issues its Corlett decision—including this most recent ruling in Miller.

So, for now, we have room to be cautiously optimistic that the hard work CRPA has done in California’s courts will have a meaningful chance to truly change the scope of gun rights in the state.  That said, we will have to be patient and await what unfolds in the Supreme Court.

We are planning the march to the Supreme Court now and you can help! Please donate today to the Litigation Victory Fund today.

 

Chuck Michel is the president of the California Rifle and Pistol Association.

 

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20 COMMENTS

  1. We know that the case before SCOTUS is trying to clarify the right to carry outside the home.
    I don’t think this will have a direct effect on bans on MSR’s. However…
    It appears based on comments from Cavanaugh, and Thomas, they are looking for a case which will give them the opportunity to provide clarity on more than just whether or not you can carry. It appears they want to clarify what constitutes an infringement on our rights as a whole.
    An example right now there is a single application of common use except here in California it is a two step application. I have a feeling they will look to provide guidance and remove the ability of states add on extra definitions which as we know will be work arounds to deny such rights to citizens.
    Much like the current hand gun roster case. It is important to know that sure you can buy a hand gun, but only one that is either old on the list, or one that meets all the requirements of what the state deems safe. No new hand guns are going on to the roster since the new rules are not being done by any manufacturer.
    So yes it will mean we need to wait however the ruling if in our favor and far reaching as we hope would essentially help determine the outcome in those cases.

    • In the unlikely event the SCOTUS manages to rule in the NY case that strict scrutiny must be applied for 2nd Amendment cases, it would drastically change the legal landscape for all 2A cases.

      • We would hope, but the fact of the matter is, they will NEVER acknowledge the right to own and carry guns.

        Let’s say the SCOTUS says “Strict scrutiny” is the law of the land when it comes to the 2A next June.

        Their courts will vomit a ruling like “Yes, strict scrutiny, but due to the dangerous nature of guns, and that the Constitution clearly isn’t a suicide pact, we rule infringement is necessary, and in the public good.”

        That’s how they will treat the 2A, even if strict scrutiny is ruled. (And I have a sinking feeling they won’t go that far, I suspect they will invent a new form of scrutiny, like “Conditional Strict Scrutiny” or some other crapola…

        • Then Americans need to stand up, get out in public, and blatantly practice civil disobedience en masse! Every weekend there need to be thousands carrying these banned arms, mags, etc, and showing a BS unconstitutional law on paper won’t stop us from exercising our rights.

          Nullify the infringements.

          All this waiting is ridiculous. Rights have been infringed for 30 years! Just regarding the California ban. The hughes amendment and NFA need to be put down as well. All gun laws are infringements. Early cases in the 1800’s recognized and boldly stated this. Courts now ignore SCOTUS dexisions from history and from Heller and Macdonald.

    • Duncan v. Becerra (now v. Bonta) deals with CA’s ban on items considered to be “in common use”, so its outcome after the Ninth’s en banc will have direct impact.

      • They will never admit AR-pattern firearms are in common use, Haz.

        Facts don’t matter to Leftist scum, only precious ‘feelz’, and black guns are scary, m’kay? 🙁

  2. No pro-2A decision will survive a 9th circuit En Banc panel. 8 of the 11 judges on that panel hate the 2A. Win or lose, this fight won’t be over until the supremes get in the ring.

    • Even then, I have a bad feeling the SCOTUS will give them an ‘out’ to exploit…

    • There are 29 judges on the Ninth Circuit. An en banc panel consists of ten judges selected at random plus the chief judge. The current Chief Judge, Sidney Thomas, is a virulent antigunner but whose term of office is due to end fairly soon. There is a slight majority of Democrats after Trump was able to appoint a number of conservatives. That said, some (prior) Republican appointees voted with the majority in Young v. Hawaii which concluded that the Second does not extend beyond the home.

  3. Chuck Michel and California Rifle and Pistol Association (CRPA) which is part of the NRA has done an amazing job with it’s legal efforts here in California. What I thought was impossible is becoming a reality in striking down California’s crazy anti gun laws.

    I have followed Chuck Michel for several years and he has been an asset to the 2A community. If you have not had a chance to follow Chuck I suggest you do so. I also recommend donating to the CRPA they’re doing amazing work which I believe in the end will benefit the entire Second Amendment Community

  4. The ruling means nothing because nothing is going to change. There is only one outcome: it goes en banc, The court as a whole upholds the ban with ridiculous reasoning, it gets appealed to the supreme court, supreme court does not take it or they will after it gets packed and rule in favor of the ban.

    people talk about how the Supreme Court is taking that New York case. This is how that’s gonna turn out: either the Supreme Court rules in favor of New York or they rule against New York but the decision is so narrow in scope that only applies to that one little thing and cannot be used anywhere else while New York probably ignores it and gets no punishment and all the other courts will ignore it and rule in the exact opposite of what the Supreme Court did.

    • “The ruling means nothing because nothing is going to change.”

      “Whaa, whaa, whaa”, here comes little ‘shawn’, TTAG’s personal ‘Aliens’ Private Hicks, telling us to light a camp fire and sing songs, because we’re fvcked.

      SCOTUS did what you said will never happen, son. They granted cert. on a 2A case to be heard this fall.

      Stick a sock in it, loser… 🙁

  5. SCOTUS will deny cert. They aren’t going to be telling anyone that AWBs are unconstitutional, Roberts won’t even let it be heard.

      • Chief Justice means little. But has “optics”. Trump should have replaced Roberts as Chief with Barrett.

    • Roberts has but one vote, and his vote counts for no more than any other vote. It only takes four to grant cert, five for a majority. There are five conservative justices not including Roberts. Thomas, Alito, Gorsuch, Kavanaugh and Barrett.

  6. “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”

    The AR-15 is not good for battle, unless it is selective fire, which is denied citizens without special license(not to mention it has to been licensed a long time ago).
    It is a very versatile gun, either in handgun or rifle configuration, it is a sporting, hunting and a self defense weapon – all in one. It is not a battle weapon, law enforcement agencies that use these usually have a selector switch on them, which make them an AR-15 +.

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