Ninth Circuit District Judge Delivers Another Superbly Written Court Order

Why I Am Suing The Governor of Virginia, iStock-1055138108
Ninth Circuit District Judge Delivers Another Superbly Written Court Order, iStock-1055138108

U.S.A.-( On 23 September 2020, Judge Roger T. Benitez issued another impressive order in a case involving the Second Amendment.

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.

Dean Weingarten

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Benitez has been a rock star with his rulings on the 2A. I hope they go to the USSC where the full court with Justice ACB can confirm them.


Agreed. I love how he uses their own precedents against them, quoting ridiculous immigration or border wall cases on standing and harm.

Definitely a rock star judge for following the rule of law and the Constitution.


judge Benitez actually conducts himself like a judge should, by applying the rule of law and precedent. the use of the lefts own frivolous lawsuits is biting them in the ass like it should. kind of like when harry reid changed the rules on judicial nominees. thank you harry. judge Benitez should be bumped up the judicial chain to the appellate courts and i hope Trump does just that after he wins re-election. the Constitution is made up of words and ideas. the ideas were to promote and protect freedom for citizens. words have meanings, you cannot change the meaning… Read more »


The standing issue is such settled law that the California attorneys who signed the motion to dismiss for lack of standing should have been sanctioned under Rule 11 for signing a pleading the knew to be unsupported by fact or law. The California DOJ is just slow walking these cases, and the courts should not tolerate it. Fortunately, Judge Benitez has seen this now in at least three gun rights cases and he basically slapped the California DOJ by setting the case for trial in January (normally the process would take 2 years to get to trial). Judge Benitez is… Read more »


Strike another blow in the long war to deconstruct progressive Jim Crow laws and reestablish the federal and state government respect for the actual words of the Constitution. Gun control is the original Jim Crow. We have to wage this battle on many fronts to restore government deference to our rights: all of our first ten amendments have been assaulted by the progressives over 140 years of subversion. Resist. Restore.


Judge Benitez was born in Cuba, in 1950. He understands oppression. THIS exlains a lot. Yes, he understands oppression, dirty politics, and totalitarian government actors. HE knows or’ Javvie the Beast is made of communist stuff, as well as his predecessor/appointer. Being born in 1950 he watched as his homeland went from quiet rural friendly Cuba to a Castro/Guevera/Ortega hellhole. Don’t know at what point he managed to escape. but he was obviously old enough to be aware of the change, and its underlying cause. I’ve no doubt he sees the same forces hard at work here in the US.… Read more »


Cuba was also a hellhole under Batista. ‘Meet the new boss; same as the old boss’ – The Who.


Judge Benitez truly understands and applies the concept of justice for ALL.
The left cheers when a ruling is in THEIR favor but cries foul when, applying the same principle, it goes against them. Sorry to tell you Demonrats……you can’t have it both ways. Equal protection means exactly what the term implies so suck it up buttercups.

Last edited 2 years ago by lktraz

I like this judge, but what I don’t understand how Becerra can tie up every possible decision he doesn’t like, has gotten away with it and no body seems to care. I thought a Judge had power than a crooked AG like California has.

Dave in Fairfax

Michael J,
Becerra can appeal anything he feels like. It isn’t his money he’s using to push the cases. As long as Californians are willing to put up with him he can drag his heels using their money.


Any chance Ammoland can ban the accounts that log in these robotic spam e-mails like Labould01? Getting tired of seeing them on every single article comment section.

Dave in Fairfax

We can knock them down as soon as we see them, and we do. Unfortunately we’re dealing with foreign actors. They have A LOT of resources. They change their names, e-mail addys and ISPs each time. There isn’t any way to ban then them ahead of them showing up. It’s like the BS phone calls you get. Until you see it, you can’t hang up on it.
This one is posting from another foreign country, Kalifornia.

Last edited 2 years ago by Dave in Fairfax

Thank you, Judge Benitez, for smacking Becerra, et al, right in the mouth with your ruling! I hope more of the Peoples Republik of Kalifornia Bovine Scatology comes before you in the future so that you can smack the Communist Democrap Baztards right in the mouth again!!!