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<![CDATA[Judge Roger Benitez]]>

Bruen’s “chaos” is a much-needed correction

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Ahead of four decisions on California gun laws that are expected to soon be released by U.S. District Judge Roger Benitez, the Los Angeles Times is advancing the narrative that the Supreme Court’s Bruen decision is sowing “chaos” in the courts. But as we discuss on today’s Bearing Arms’ Cam & Co, upending the untenable status quo is a good thing, particular given how the judiciary has abused “interest balancing” tests to regularly uphold infringements on a fundamental right.

Reporter Kevin Rector’s coverage of how the courts have dealt with the Supreme Court’s edict that those interest balancing tests are inappropriate is clearly slanted; not only in the front-page story itself, but he promoted his piece on social media.

Yes, SCOTUS has rejected the interest-balancing tests that many lower courts adopted after the Heller decision in 2008, but as Justice Clarence Thomas made clear in Bruen, that was never the appropriate test when it comes to gun control laws”

Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny.

What Rector (and the vast majority of the sources he spoke to) object to is the fact that the Court’s explicit instructions to discard those interest-balancing tests in favor of a text, history, and tradition test puts laws like California’s ban on so-called assault weapons on shaky legal ground. No longer can the courts decide that even though a particular gun control law intrudes on the Second Amendment rights of citizens, it’s okay because the government has an interest in promoting public safety. Now those laws must be justified through the historical record; something that is going to be difficult given that the gun control movement is a fairly modern creation.

“This new ‘history and tradition’ test that the Supreme Court established last June is wreaking havoc on America’s gun laws,” said Adam Winkler, a UCLA law professor who focuses on 2nd Amendment law. “Instead of having a reasonable debate over whether a ban on assault weapons is good policy or not, we have to debate whether a ban on assault weapons has historical antecedents.”

With all due respect to Winkler, the courts aren’t the right venue for a “reasonable debate” on the policy of a gun ban. Legislators can and will continue to debate banning “assault weapons”, but it’s up to the judiciary to determine if those laws are constitutionally sound. And as much as the law professor complains that Bruen is wreaking havoc on gun laws, I’d argue that when appellate courts like the Ninth Circuit refuse to ever find a gun control law unconstitutional the judiciary is wreaking havoc on a fundamental civil right.

The Bruen decision will not lead to every gun control law being overturned, as disappointing as that might be for Second Amendment advocates. Heck, the Court said that “shall issue” concealed carry regimes are presumptively constitutional, and the justices pointed to places like schools, legislative assemblies, and polling places as locations that could likely be labeled “sensitive places” without much legal trouble. But the Court’s opinion should also take an “assault weapons” ban and many other modern inventions of the gun control lobby off the table, at least if judges are willing to abide by what SCOTUS had to say.

As we’ve seen in places like Oregon, though, some judges are still finding new and creative ways to uphold gun control laws by stretching the boundaries of an historical analogue beyond credulity. Bruen may have put the lower courts on notice, but as valuable a course correction on Second Amendment jurisprudence as it might be, it can’t and won’t be the last word for the Court on our right to keep and bear arms.

Decision on California “assault weapons” ban could come this week

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The last round of briefs have been filed, and now both sides in the legal fight over California’s ban on so-called assault weapons are waiting to learn what a federal judge has to say about the constitutionality of the state law. Given that U.S. District Judge Roger Benitez has already ruled the gun ban is invalid once before, however, there’s not much doubt about what the judge will conclude the second time around.

It was two years ago that Benitez originally ruled against California in a lawsuit known as Miller v. Bonta; a decision that was stayed by a three-judge panel on the Ninth Circuit. Rather than hold on to the case, which would have expedited its journey to the Supreme Court, the Ninth Circuit vacated its decision and remanded the lawsuit back to Benitez’s court after the Court’s decision in Bruen last June. Ostensibly the move was to allow for both sides to make new arguments based on the history, text, and tradition test laid out in Bruen, but there are a lot of Second Amendment supporters who suspect that the Ninth Circuit, which has never found a gun control law to be unconstitutional in the nearly 15 years since the Heller decision was handed down, is simply trying to play keep-away with the Supreme Court on an issue of fundamental importance by unnecessarily sending the case back to Benitez and starting the legal process all over.

Rick Travis, the California Rifle & Pistol Association’s legislative affairs director, is already warning gun owners that even a good decision from Benitez won’t immediately change California law.

“Californians have this idea that when they hear the news, that this is going to change overnight. This isn’t,” Travis said. “No matter what happens either way with the decision nothing’s going to change for the foreseeable future. And when I say that, I mean for years.”

Travis said the decision will be appealed to the 9th Circuit Superior Court and from there, potentially, all the way up to the Supreme Court.

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If Benitez does overturn the assault weapons ban, it would not be his first time. He struck down the law in 2021. However, a higher court reinstated the law.

But Travis says this time is different. The decision would be the first to come after the Supreme Court’s Bruen decision last year that overturned a New York gun control law and made it easier to argue laws restricting guns are unconstitutional.

Travis said that ruling gives gun rights groups a better chance of actually overturning California’s assault weapons ban.

“It forced you to have to go back to the original text, the history based off of that text, and what is common use at this time,” Travis said of the new standard set by the Bruen decision. “And those are the things that help set the standard of how a judge or judges, in case of a panel, have to review anything under the Second Amendment.”

While at least one federal judge has recently declared that so-called assault weapons aren’t protected by the Second Amendment because they’re “dangerous and unusual”, Benitez isn’t likely to follow suit. In his original decision overturning California’s ban in 2021, the judge proclaimed that the AR-15 and other modern sporting rifles are the “perfect combination of home defense weapon and homeland defense equipment” and fall under the Constitution’s protection, and the state of California’s supposed evidence to the contrary has been laughably bad; with the state pointing to clearly unconstitutional statutes barring Catholics, slaves, and other historically disfavored groups from exercising their Second Amendment rights as proof that the Constitution allows for the most commonly-sold rifle in the country to be banned outright.

Benitez’s original decision was a thing of beauty, and I’m looking forward to reading what he has to say for a sequel, even if his decision is also likely to be stayed by the Ninth Circuit on appeal. The anti-gun judges on the appellate court may be intent on slow-walking this case, but it’s not the only lawsuit dealing with bans on so-called assault weapons percolating in federal courts, and fans of the gun ban won’t be able to keep this issue away from SCOTUS for long. Sooner or later the Court will have the chance to weigh in, and unless a majority of justices are willing to undo what SCOTUS has previously said about the scope of the Second Amendment in the Heller, McDonald, Caetano, and Bruen decisions I don’t see how these prohibitions can stand when the Court gets ahold of an “assault weapons” ban challenge.