Federal Judge Roger Benitez (a/k/a “Saint Benitez” to the 2A faithful) has just entered an interesting order in Miller v. Bonta, the challenge to California’s “assault weapons” ban. It’s not a decision on the merits, but I read it as a pretty clear indication of where he is going and the fact that he intends to try and make his decision appeal-proof.
Recall that after a trial to the bench, Judge Benitez ruled that California had failed to establish that its AWB satisfied either the “text, history, tradition” standard, or the “intermediate scrutiny” test then being used by the Ninth Circuit in Second Amendment cases. He thus invalidated the California “assault weapons” ban.
An appeal was taken, and the Ninth Circuit stayed the case pending resolution of another Ninth Circuit case (Rupp v. Bonta). While that stay was in place, SCOTUS handed down Bruen, which adopted “text, history, tradition” as the sole test in Second Amendment cases.
That led the Ninth Circuit to punt the Miller v. Bonta appeal back to Judge Benitez “for further proceedings consistent with” the Bruen decision. To me, this was a dodge/delaying tactic, as Benitez’s decision already held that California lost under the “text, history, tradition” test that Bruen adopted, and thus the Court should have simply proceeded with the appeal.
On remand, California essentially asked for a “do-over” where it could take discovery, introduce new evidence, etc. That generally isn’t allowed unless the court (or the court of appeals) has ordered a new trial. Remember, there has already been a trial and a decision in the case. Benitez thus denied the state’s various motions and merely requested additional briefing, which has now been filed.
After a status conference earlier this week, the following minute entry just dropped (h/t Cody Wisniewski of the Firearms Policy Coalition for notifying me) . . .
2022-12-12: Minute Entry for proceedings held before Judge Roger T. Benitez:
Status Conference held on 12/12/2022.The state defendants shall create, and the plaintiffs shall meet and confer regarding, a survey or spreadsheet of relevant statutes, laws, or regulations in chronological order. The listing shall begin at the time of the adoption of the Second Amendment and continue through twenty years after the Fourteenth Amendment. For each cited statute/law/regulation, the survey shall provide:
(a) the date of enactment;
(b) the enacting state, territory, or locality;
(c) a description of what was restricted (e.g., dirks, daggers, metal knuckles, storage of gunpowder or cartridges, or use regulations);
(d) what it was that the law or regulation restricted;
(e) what type of weapon was being restricted (e.g., knife, Bowie Knife, stiletto, metal knuckles, pistols, rifles);
(f) if and when the law was repealed and whether it was replaced;
(g) whether the regulation was reviewed by a court and the outcome of the courts review (with case citation). Defendants may create a second survey covering a time period following that of the first list. If opposing parties cannot agree on the inclusion of a particular entry on the survey, the disagreement shall be indicated and described on a separate list.The survey list shall be filed within 30 days. Parties may file a brief up to 25 pages within 30 days thereafter focusing on relevant analogs. Parties may file a responsive brief within 10 days thereafter. Parties shall agree within 20 days on deposing Mr. Roth and Mr. Cramer at an agreed place and time.
What this means:
- The Court is laser-focused on the state of the law in 1791, but will also at least listen to arguments about what the state of the law was between then and shortly after 1868 (when the Fourteenth Amendment was ratified). But while he’ll also let California file whatever they want regarding subsequent developments in the law, it’s pretty clear that Judge Benitez isn’t interested in that. For a very good analysis of why the only relevant consideration is what the law was in 1791, see this essay by Second Amendment guru Stephen Halbrook, as well as Justice Barrett’s concurrence in Bruen (pp.82-83 of the opinion).
- Benitez is making the parties present it as a joint report. To me, that’s clearly directed to minimizing the possibility of evidentiary objections on appeal.
- The stuff he’s asking for has been exhaustively documented already (see the Bruen opinion on this). I think Benitez knows it’s not going to contain much if anything that hasn’t been covered already.
- I’m assuming that Roth and Cramer are California’s proposed new “expert witnesses,” and he’s allowing their depositions to perpetuate their testimony. In light of his earlier rulings, I suspect he’ll stick to his guns that California doesn’t get a “do-over,” but by doing this he can probably make some additional findings (e.g., “I’ve already ruled the state doesn’t get a do-over, but even if I reopened evidence and considered this proffered new evidence, it wouldn’t change my previous findings”). Again, I see it as Benitez thinking three moves ahead to make his decision bulletproof.
This probably pushes any decision in this case 90 days or so. While the wheels of justice do grind slowly, in this case I foresee them crushing the state of California’s gun control ambitions. Watch this space.