Another Miracle from St. Benitez ~ California’s “Assault Weapons” Ban Struck Down

In yet another victory for the Second Amendment, Judge Roger Benitez of the Southern District of California has struck down California’s ban on so-called “assault weapons” in the case Miller v. Bonta.

Specifically, Judge Benitez issued an injunction against California Penal Code sections 30515(a)(1) through (8) (which define an “assault weapon”), 30800 (which defines “assault weapons” as a “public nuisance”), 30915 (which regulates “assault weapons” obtained by bequest), 30945 (which restricts the use of registered “assault weapons”), and the penalty provisions 30600, 30605 and 30800.

The injunction has been stayed for 10 days to allow the State time to seek an emergency appeal and stay of the order.

This ruling (embedded below) should be a massive blow to the anti-gunners who want to pass blanket bans of what they disingenuously call “assault weapons” across the country. Judge Benitez’s opinion is a boon to the Second Amendment movement.

In his ruling, Judge Benitez painstakingly goes through all of the State’s laws and shows why they don’t justify California’s ban. Of course, this should not be a surprise because the U.S. Supreme Court, in its 2008 Heller decision, first analyzed the text and then conducted a historical analogue analysis of laws that ban any category of ‘arms.’ The Heller decision adopted the “in common use” test for protected arms when it struck down the District of Columbia’s handgun ban.

Sticking with Heller’s “in common use” test, Judge Benitez correctly observed that the mere possession of a firearm constitutes “use” of that firearm for all lawful purposes, including, but not limited to, self-defense. He wrote that “the vast majority of Americans that own guns keep them and use them for self-defense the same way that a driver puts on a seat belt in the case of a collision. Though collisions rarely happen, the seat belt is used for protection and to be ready for the unexpected collision.”

Judge Benitez also does an excellent job dismissing the historical analogue laws proffered by California to justify its blanket ban. While this analysis was not legally necessary (because AR-15s are in common use, and, as Judge Benitez noted, the Supreme Court has already done all the necessary historical work here), it is a good exercise to show why there is absolutely zero historical precedents for California’s “assault weapon” ban. Judge Benitez explained that out of the over 300 potential analogues California cites, the vast majority of those historical laws either (a) far preceded the 1791 Second Amendment or (b) far followed the 1868 Fourteenth Amendment, which applies the Second Amendment to the states, thus diminishing their explanatory power.

Going further, Judge Benitez stated explicitly that 1791 is the interpretive year par excellence, not 1868. As I have demonstrated in the Harvard Journal of Law and Public Policy here, the Second Amendment should be interpreted according to what it meant when it was originally enacted, which means in 1791.

As Judge Benitez wrote, “in surveying American history, the task is to stay within Bruen’s guardrails. The road ahead leads back to 1791.”

Regardless of whether Judge Benitez or his clerks follow the Four Boxes Diner channel, which I host, the Miller v. Bonta opinion certainly echoes many of my teachings. In addition to referring to the California gun ban as a “malum prohibitum” (non-evil, victimless) crime, Judge Benitez also explained the largely insignificant role of California’s experts who testified that the gun ban was constitutional. Judge Benitez rejected one-by-one the arguments of the State’s experts.

One of the main arguments made by these experts was that gun control laws were widespread throughout American history and, thus, constituted a longstanding tradition of gun regulation. Judge Benitez dismisses this “macro” approach to history that today’s anti-gun experts seek to adopt, saying that “if the test were to look at gun laws with that level of generality, no gun law would ever fail scrutiny and Heller, McDonald and Bruen could not have been decided as they were.”

Not only are the experts wrong, however, but their presence in this case was completely unnecessary. The use of experts is a relic of the interest-balancing jurisprudence of the pre-Bruen era, and experts are not necessary in Second Amendment cases. Indeed, in none of the Supreme Court’s opinions of Heller, McDonald, Caetano, or Bruen—the four modern Supreme Court decisions interpreting the Second Amendment—do we see the presence of testifying historical or other experts?

Judge Benitez also quotes 18th-century criminologist Cesare Beccaria in his conclusion, an important Founding Era figure whose profile I have long tried to raise in the Second Amendment movement. The purported basis of California’s assault weapons ban is that it will ensure a safer community. Still, as any student of the Four Boxes Diner is aware, Beccaria taught in the 18th century that such gun control laws only serve to punish the law-abiding while rewarding the criminal class.

Judge Benitez writes that “California’s answer to the criminal misuse of a few is to disarm its many good residents. . . . There is only one policy enshrined in the Bill of Rights. Guns and ammunition in the hands of criminals, tyrants, and terrorists are dangerous; guns in the hands of law-abiding responsible citizens are necessary.” While Governor Gavin Newsom may prate continuously about “safe communities,” Judge Benitez correctly argues that California’s “assault weapons” ban will serve to disarm only law-abiding citizens.

Miller v. Bonta is a major win for the Second Amendment movement, and it is great to see so many of the scholarly and legal ideas discussed on the Four Boxes Diner Second Amendment channel featured in this powerful, 78-page judicial opinion.

In short, Judge Benitez does an excellent job dismantling many of the typical arguments advanced by anti-gun advocates and shows why the gun control policies they push are unconstitutional not just in California but all across America as well.

Read Related:

About Mark W Smith

Constitutional attorney and bestselling author Mark W. Smith, host of the Four Boxes Diner Second Amendment channel on Youtube, is a member of the U.S. Supreme Court Bar, and his Second Amendment scholarship has been cited by many attorneys and judges, including by attorneys in legal briefs submitted to the Supreme Court in NYSRPA v. Bruen and in U.S. v. Rahimi.

His most recent book is DISARMED: What the Ukraine War Teaches Americans about the Right to Bear Arms.

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I’d like to get my hopes up but we’re dealing with nefarious people in high positions. Constitutionally speaking, those rulings mean nothing if the executive law enforcement arm does nothing. This has been proven time and again where those in government break their oaths without any repercussions. Newsom is as guilty as they come. Passing illegal laws first before they can be challenged is right out of their tyrannical play book.


B l N G 0


This won’t be settled until SCOTUS finally makes a categorical ruling that AR’s are protected. They must also state that since 700,000 own registered machine guns, they are in common use and can no longer be banned or held to special tax stamp restrictions as they are NOT “dangerous and unusual”. Same for SBR’s and suppressors. Bruen set the stage and they must finish their work, declaring with finality that no government entity is legally authorized to interfere with civilian choice of arms, ownership, possession or use, so long as use is not to commit assault, murder, theft/armed robbery, etc.… Read more »


I can hardly wait to stare at the ruling from the 9th circuit on this. It will be another anti constitutional power grab of no effs given. Likely even after the Supreme Court ” tells them no for the 20th time.

Mark at 4 boxes and Benitez nailed this one. What a brilliant litigator and Judge.

One day, we’ll storm the 9th circuit court, I mutter as I say my bedtime prayers. Enough of it already.

Last edited 4 months ago by Colt

will be funny if 9th pulls their bs and scotus reinstates his decision over ruling 9th and censures members of the 9th


The 9th is the most overturned Court in the history of jurisprudence in the United States.


Good morning. Incorrect allegation. While the 9th has a higher than average reversal rate than most (79%), it is actually third behind the 11th (85%), and the 6th at 87%. Because of its huge territory and liberal leaning, it’s not surprising it has a high reversal rate. These figures are from Politifact which got their facts from the SCOTUSBlog’s Supreme Court statistics archive. Accord with Colt on the goofball logic likely to emanate from the 9th on this one, but it’s a necessary step to get it to the SCOTUS. People are usually canonized after their deaths; to call Judge… Read more »


My understanding is that the 9th remains in first place in number of reversals. Not highest percentage but because of the huge territory containing such a large population and with (I think) more judges than any other district – they make more rulings resulting in higher reversal rate. Now I understand that clear cut cases won’t go to scotus, but a reversal rate of 20% would seem excessive to me. A rate above 50% means court gets things wrong more than not — 79% is utterly unacceptable! Justices concurring in ten or more erroneous rulings and with reversal rate over… Read more »


What now liberals? Toilet paper his house?


lol, literally, it’s that petty.

Desert Guy

LOL! Like a government will obey a ruling it disagrees with!


Wonder what these liberals will gripe about next? Hey, how about the “gun show loophole” again?

Last edited 4 months ago by Ledesma

Until overturning a decision has some ‘teeth’ in it, they (the libidiot judges AND the politicians,) will continue to attempt an end run around the Constitution and BOR.

There needs to be some kind of sanctioning in place, that when you have a certain percentage your decisions overturned, your are then up for board of review, and if the bad behavior continues, you are removed from the bench.

Yeah, one can dream, right?


2 words…Qualified Immunity. It is up to ‘We the People’ to apply sanctions on politicians and judges who continually defy the Bill of Rights, for their own political ideology and benefit.