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.
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.