A number of California residents, firearm businesses, special interest groups, foundations, and a political action committee have organized to sue California AG Xavier Becerra et al, to challenge the constitutionality of California’s complex net of regulations for the ownership and use of various firearms the state deems to be “assault weapons”. The lawsuit has been winding its way through the federal legal system in the Ninth Circuit.
In Miller v. Becerra, the defendants moved to summarily dismiss the lawsuit on the basis of lack of standing, and for a failure to claim relief.
The judge, in this case, is Roger T. Benitez, of the United States District Court, Southern District of California. Judge Benitez has become well known for his superb, well reasoned, and exquisitely written opinions in Second Amendment cases.
Judge Benitez has created another splendid example of his command of logic and rhetoric in the order denying summary judgment to AG Becerra and the other plaintiffs. The order was issued on 23 September 2020.
Judge Benitez demolishes the argument that plaintiffs have no standing because they have not suffered an injury. The chilling of the exercise of a Constitutional right *is* an injury in federal jurisprudence. Judge Benitez gives example after example in case law. From the order:
It has long been the case that a plaintiff possesses Article III standing to bring a pre-enforcement challenge to a state statute which regulates the exercise of a federal constitutional right and threatens a criminal penalty. “When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he ‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’” Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979) (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)). “[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459 (1974). “In Virginia v. American Booksellers Assn. Inc., 484 U.S. 383 (1988), we held that booksellers could seek preenforcement review of a law making it a crime to ‘knowingly display for commercial purpose’ material that is ‘harmful to juveniles’ as defined by the statute.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 160 (2014). Of course, “[s]uch challenges can proceed only when the plaintiff ‘faces a realistic danger of sustaining a direct injury as a result of the law’s operation or enforcement.’” Skyline Wesleyan Church v. California Dep’t of Managed Health Care, 968 F.3d 738 (9th Cir. 2020) (citations omitted). But the simple continued existence of the criminal penalty provision together with an absence of a defendant’s disavowal of prosecution satisfies the requirement of a credible threat of prosecution. Susan B. Anthony List, 573 U.S. at 164 (threat of future enforcement of the false statement statute is substantial with history of past enforcement).
Then Judge Benitez shows several recent examples where federal courts within the Ninth Circuit have granted standing on orders to thwart the Trump administration:
The bar for standing is not particularly high. For example, organizations that have been “perceptibly impaired” by a government rule “in their ability to perform the services they were formed to provide” is sufficient for organizational standing. E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1266–67 (9th Cir. 2020) (“The Organizations are not required to demonstrate some threshold magnitude of their injuries; one less client that they may have had but-for the Rule’s issuance is enough. In other words, plaintiffs who suffer concrete, redressable harms that amount to pennies are still entitled to relief.”). An organization has standing to sue on behalf of its members when “the interests it seeks to protect are germane to the organization’s purpose.” Sierra Club v. Trump, 963 F.3d 874, 883 (9th Cir. 2020) (also noting individual’s standing to challenge border wall construction based on: “concern that the wall ‘would disrupt the desert views and inhibit him from fully appreciating the area,’ and that the additional presence of U.S. Customs and Border Protection agents ‘would further diminish his enjoyment of these areas’ and ‘deter him from further exploring certain areas’ [while] worrie[d] that ‘construction and maintenance of the border wall will limit or entirely cut off his access to fishing spots’ along the border, where he has fished for more than 50 years.”).
There are several others. The reader can access the order online or here or below to read in-depth. Judge Benitez is using the Ninth Circuit’s over the top precedent to allow any lawsuit against the current administration by applying the basic judicial principle of reciprocity. What is good for one plaintiff is to be applied to all plaintiffs.
The stakes are high. The plaintiffs are challenging California’s byzantine network of complicated laws which make owning many common firearms a legal minefield in the state.
A divided Supreme Court has punted on enforcing Second Amendment rights for a decade. With the passing of Justice Ruth Bader Ginsburg, and the likely confirmation of Amy Coney Barret to the Supreme Court, the time seems ripe for the Court to take on Second Amendment cases, and clarify obvious infringements such as effective bans on the carry of firearms outside the home, bans on magazines, bans on semi-automatic rifles, and lifelong bans on the exercise of Second Amendment rights for people who are not a danger to the community.
If President Trump wins re-election, he is likely to flip the Ninth Circuit with a majority of originalist and textualist judges.
Judge Benitez was born in Cuba, in 1950. He understands oppression.
Perhaps Judge Benitez will be elevated to the Court of Appeals. He is an obvious choice.
Miller v. Becerra, Order on Motion to Dismiss
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.