Friday night, U.S. District Court Judge Roger Benitez struck down California’s ban on assault weapons in Miller v. Bonta. The opinion of the senior, semi-retired judge begins, “Like the Swiss Army Knife, the popular AR-15 is a perfect combination of home defense weapon and homeland defense equipment.” The assault weapon has been used in numerous mass shootings.
He mentions in passing, and brushes aside, the standard laid down by the appellate court, the Ninth Circuit, to which his ruling will now be appealed by the California Attorney General. It looks like Benitez, who was appointed in 2004 by President George W. Bush, knows the appellate court over him would never not strike down Benitez’s blessing of the AR-15 as a “Swiss Army Knife.” In his 94-page ruling Judge Benitez clearly aims to get the case to the Supreme Court, with its three new Trump-appointed justices, and bring about what he is aiming for, a radical doctrine that the Second Amendment extends to weapons of mass killings of helpless, hopeless victims.
The press probably will take Benitez’s lengthy opinion at face value as though it came from your average federal judge. Let us look at five factors for the scary Benitez ruling.
First, this isn’t Judge Benitez’s first ruling on mass killing weapons. In 2019, he ruled against California’s ban on large capacity magazines. Benitez wrote “California’s law prohibiting acquisition and possession of magazines able to hold any more than 10 rounds places a severe restriction on the core right of self-defense of the home.” After a strange three-judge panel affirmance, the state’s attorney general requested an en banc (whole court, not just a 3-judge panel) hearing, which the full court of appeals granted.
Second, it likely isn’t coincidental that this latest assault weapon gun lobby case came to Benitez.
When the gun lobby filed this new case, they likely said on the forms filed with the clerk of the court that this case was “related” to the large capacity magazine case so that it would be assigned to Benitez. This is a tactic I’ve seen the gun lobby use before in cases I was involved in as general counsel to the House of Representatives. Without real judgment, the clerk of the court routinely accepts at face value that it was “related” and so assigns this new assault weapon case to Benitez. Benitez, of course, is delighted.
Third, this is no small matter. The gun lobby shops for judges biased in their favor of weapons for mass killings. They wanted Benitez, they shopped for him, they got him. That is not supposed to happen in a just and fair court system.
Fourth, Benitez was appointed as a federal judge although more than 10 of 15 members of the American Bar Association clearing committee gave Benitez an unqualified rating. The ABA said: “Judge Benitez is ‘arrogant, pompous, condescending, impatient, short-tempered, rude, insulting, bullying, unnecessarily mean, and altogether lacking in people skills.’”
Fifth, Benitez made this ruling in the face of an overwhelming trial record by the California Attorney General. They showed – as quoted in the Benitez opinion – as to assault weapons: “Even in California, despite being banned for 20 to 30 years, according to the State’s own evidence, there are 185,569 “assault weapons” currently registered with the California Department of Justice.” Defs. Exh. CZ, Glover Decl. at ¶ 7 (DEF3222). Another 52,000 assault weapon registrations were backlogged and left unregistered when the last California registration period closed in 2018. See n.37 infra. The Attorney General further showed: “There are likely many more in California. According to the State’s evidence, a 2018 California Safety and Well-Being Survey reports 4.2 million adult Californians personally own a firearm. And Californians own an estimated 19.9 million firearms. According to this survey, of the 19.9 million firearms in the state, assault weapons make up 5% or approximately 1,000,000. Californians buy a lot of firearms. In the year 2020 alone, residents bought 1,165,309 firearms.”
The Attorney General further showed, and Benitez conceded: “If 48% of rifles sold nationally are modern “assault” rifles, it can be inferred that Californians would have purchased modern rifles [assault weapons] at the same rate. So, of the 368,337 rifles actually bought since January 1, 2020 in California, it is reasonable to infer that 176,801 additional modern rifles would have been added to the California stock, were it not for the assault weapon ban.”
So as the Attorney General showed, and even Benitez admits, there is an enormous pent-up demand in California to buy hundreds of thousands of assault weapons per year or so to add to the current million or so. Assault weapons that could be used for more mass killings.
