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.
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 Duncan, Rhode, 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 Duncan. Duncan 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 Rupp, Rhode, 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.