U.S.A. –-(AmmoLand.com)-– On August 15, 2019, the San Diego Gun Owners Political Action Committee, James Miller, and others filed a lawsuit against then California Attorney General Beccera, challenging the constitutionality of the California “assault weapon” ban. As the case evolved, it became known as Miller v Bona.
Here is a summation from the complaint filed on August 15, 2019:
1. This is a facial and as applied constitutional challenge to California Penal Code §§ 30515(a)(2) and 30515(a)(5), California Code of Regulations § 5471, subdivs. (b), (n), and (p), and Defendants policies, practices, customs, and enforcement of said law, which define and prohibit certain firearms as “assault weapons” solely because they feature “large-capacity” magazines (capable of holding more than ten rounds of ammunition) as defined by Pen. Code § 16740 and regulated under the now-enjoined Penal Code § 32310. Duncan v. Becerra,Case No. 3:17-cv-1017-BEN-JLB (ECF No. 87). Subdivisions (a)(2) and (a)(5) of Penal Code § 30515 violate the Second Amendment to the United States Constitution by prohibiting law-abiding citizens, including these individual plaintiffs, from obtaining, acquiring, possessing, manufacturing or transferring firearms in common use for lawful purposes such as self-defense inside and outside the home,competition, sport, and hunting.
The state of California fought the lawsuit with all the tools at its disposal. Numerous motions were filed. The historical evidence and arguments presented by both sides were extensive. There were delays because of Covid 19. In the end, Judge Benitez, citing the 1939 Miller case, Heller and McDonald, as well as Caetano, decided in favor the plaintiffs.
Judge Benitez ruled AR15-type rifles and others defined as “assault weapons” were both common and well suited for militia use and use by individuals for defense of self and others, as well as for other legal purposes. Therefore, the California ban was unconstitutional.
Judgment was granted in favor of the Plaintiffs on June 4, 2021:
IT IS HEREBY ORDERED that:
1. Defendant Attorney General Rob Bonta, and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order or know of the existence of this injunction order, are enjoined from implementing or enforcing the California Penal Code §§ 30515(a)(1) through (8) (defining an “assault weapon” by prohibited features), 30800 (deeming those “assault weapons” a public nuisance),30915 (regulating those “assault weapons” obtained by bequest or inheritance), 30925 (restricting importation of those “assault weapons” by new residents), 30945 (restricting use of those registered “assault weapons”), and 30950 (prohibiting possession of those “assault weapons” by minors) and the penalty provisions §§ 30600, 30605 and 30800as applied to “assault weapons” defined in Code §§ 30515(a)(1) through (8).
2.Defendant Attorney General Rob Bonta shall provide forthwith, by personal service or otherwise, actual notice of this order to all law enforcement personnel who are responsible for implementing or enforcing the enjoined statute. Within 10 days, the government shall file a declaration establishing proof of such notice. Alternatively, the parties may file a stipulation.
IT IS SO ORDERED.Dated: June 4, 2021
On June 21, 2021, a three-judge panel of the Ninth Circuit stayed Judge Benitez’s order until the outcome of the case of Rupp v Bonta was resolved.
On June 28, 2022, following the Supreme Court decision on NYSR&PA v Bruen, the Supreme Court granted cert to Rupp v Bonta, vacated the previous Ninth Circuit decision, and remanded the case back to the Ninth;”Circuit to be reheard. On August 1, 2022, the Ninth Circuit sent the Miller v Bonta case back to Judge Benitez to be re-heard under the specific guidance issued in the Bruen decision.
The plaintiffs filed a clear and straightforward brief. They claimed the evidence had already been heard, Bruen only clarified what was already decided in Heller, and judgment should be swift and in their favor.
From Miller (Plaintiffs’) brief:
Plaintiffs James Miller, et al. (“Plaintiffs”) hereby submit this brief addressing New York State Rifle & Pistol Ass’n, Inc.v. Bruen, 597 U.S. ___, 142 S.Ct. 2111 (Jun. 23, 2022)(“Bruen”)pursuant to this Court’s Order of August 8, 2022 [ECF 125].
Bruen does not change the outcome of this case. Instead, Bruen vindicates this Court’s previous application of the “Heller test” and establishes that Plaintiffs must prevail in their challenge to the State’s Assault Weapons Control Act(“AWCA”).
In Bruen, the Court reasserted principles it clearly applied in Heller.There can now be no dispute over the proper approach to evaluating Second Amendment claims. First, the Court must determine whether “the Second Amendment’s plain text covers an individual’s conduct” that is being restricted by a challenged law or policy. Bruen, 142 S. Ct. at 2129–30. Second, if the answer is yes,the conduct is presumptively protected, and the burden then falls to the government to justify the challenged restriction by “demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”Id. at 2130. If the government cannot make this demonstration, the restriction is unconstitutional, full stop.No interest-balancing or levels-of-scrutiny analysis can or should be conducted. Id. at 2127.
The California government argued the Bruen decision changed everything. Everything had to start all over. They would need extensive time to hire historians to do extensive research which could not be rushed. They needed at least seven months.
From the California Government (defendant’s) brief:
Plaintiffs may contend here that further proceedings to apply Bruen are unnecessary because the Court can summarily rule in favor of Plaintiffs under the Heller common-use analysis set forth in the Court’s original ruling.See Miller, 542 F. Supp. 3d at 1020–23. But this Court’s application of “the Heller test” was based on a view that Heller and United States v. Miller, 307 U.S. 174 (1939), extended Second Amendment protection to “weapons that may also be useful in warfare.” Miller, 542 F. Supp. 3d at 1020 (citing Miller, 307 U.S. at 178) (emphasis added). That is not the same as the text-and-history standard required by Bruen. Bruen suggests that this view is no longer correct, as it repeatedly confirms that self-defense (and not militia service) is the “central component” of the right protected by the Second Amendment. Bruen, 142 S. Ct. at 2133 (quoting McDonald v. City of Chicago, 561 U.S. 742, 767(2010)); see also id.at 2125 (noting that Heller and McDonald“held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense”); id.at 2128 (same).15
The California government said they did not seek to delay the proceedings and then requested to delay the proceedings for a minimum of seven months, until March 3, 2023.
Judge Benitez did not grant them seven months. He allowed 45 days for new briefs to be submitted (until mid-October). Then another 15 days for briefs to be submitted in response to those briefs (end of October 2022). From the court record:
Minute Entry for proceedings held before Judge Roger T. Benitez:Appeal Mandate Hearing held on 8/29/2022. Appeal Mandate ordered filed for USCA Case Number(s): 21-55608. Injunction dissolved. Both parties have 45 days to file simultaneous additional briefs and 15 days thereafter to file responsive briefs in light of Bruen. The Court will then decide whether to schedule any hearings or decide the case on the record.(Court Reporter Tricia Rosate). (Plaintiff Attorney John W. Dillon). (Defendant Attorney John Darrow Echeverria). (no document attached) (gxr) (Entered: 08/30/2022)
As the historical arguments were already argued in the original case, something extraordinary will have to be uncovered to have Judge Benitez change his mind in 60 days.
It is possible Judge Benitez will issue a temporary injunction against the enforcement of the ban.
If Judge Benitez issues the same judgment in favor of the plaintiffs as he did on June 4, 2021, expect the case to be immediately appealed to a three-judge panel of the Ninth Circuit.
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.
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