A decision from Judge Benitez, after 14000 pages and hours of testimony – that the case filed in 2019 called Miller v Beccerra (now Miller v. Bonta) covers the various arguments made by the state to upholding their since-1989 ever expanded “assault weapon” ban, and decides that it fails to meet even the very low (and rejected by Heller) interest balancing standard of scrutiny, as well as intermediate scrutiny and of course, strict scrutiny.
It is a big deal, covering all the wide sweep of usefulness for militia as a valid reason (interoperable with mil spec guns if Californians were ever called up as a militia) and hammers home “in common use for lawful purposes” deciding factor given by Heller with industry literature and experts. And offers sympathetic declarants for the self defense reasoning too. It particularly focuses on pulling second amendment jurisprudence back to what was held in Heller, away from the “building on flawed precedent to ignore Heller‘s mandate” direction cases have currently gone.
That is especially important, given the Supreme Court’s unwillingness to take a second amendment case and show that they meant what they said in Heller and MacDonald. There was one 2a case the Supreme Court issued a per curiam opinion on, named Caetano, which I heard nothing about -and that case is deftly woven into the arguments in MIller v. Bonta, too. It is like Heller v. District of Columbia or U.S. v. Texas (the dapa injunction case filed by Texas after Obama sought to expand daca and add dapa, where the filings and declarations are by people who are very polished and very good at narrowing issues and clearly stating things – and more importantly,. at predicting what the state of ca will attempt to argue. It seems amazing to me the state’s lawyers can argue what they do when they have to know it is wrong, and amazing to me too that there are so many court decisions involving Heller where the most tortured reasoning is used. That is soooo offensive, and awful, in a land of precedent decisions being binding. Heller was supposed to be binding too, but it wasn’t as clear as many lower courts needed it to be for them to actually follow it. Added to that, by refusing to grant certiorari on any of the 2a cases that came to it, the Supreme court let stand those wrongly decided lower court decisions against Heller. Miller really reads like an attempt by Judge Benitez to pull it back to Heller’s correct interpretation and put an end to the treachery below. It’s good because the arguments are very strong, and also, the issues thus displayed force the state of ca, and any courts which overturn his carefully and historically and Heller bound opinion to actually come out and state so on the record. t is pretty obvious that the last 40 years they have been pushing the gun laws in one direction, away from the US Constitution.It would be so nice to start pushing things back in a direction where the US Constitution and the rights of the people triumph over the government attempt to take power. It would be great for CA and for all the 9th circuit and I would hope would do something to restore the 2a as a valid constitutional right.
I. I thought that after Heller, the constitutionality of the assault weapons ban in CA would be challenged because t the assault weapons ban (roberti roos) in CA was found Constitutional in the earlier case that challenged it found it Constitutional because the second amendment only protected the rights of the militia and not an individual right to bear arms. That was BEFORE the Supreme Court decided in Heller and MacDonald that the second amendment protected an individual’s right to bear arms. I guess it is good they waited until now to do the case, after Judge Benitez in an earlier case found that the ban on “large capacity” magazines (over ten rounds, commonly sold with many firearms around the country) was unconstitutional, Then they were able to frame the case as just asking the same reasoning be applied to the entire class of weapons banned by the assault weapons ban. But they are communists, and want people disarmed. So reading the parts of it, and also law review articles and other scholarly journal articles by some of the declarants has been quite cool.
However, there is a 7 dem to 4 republican on the 9th, and while I am impressed with the recently filed papers opposing the emergency stay well, I think we know what the 9th likes to do to get its way and that is – “decide – SUA SPONTE, of course, to DO WHATEVER THE ATTORNEY GENERAL OF CA wants” Just like Peruta and Jackson.
So rather than deal with any deferential standard like you do in a normal appeal, nor in issuing an emergency stay due to irreparable harm, they will decide to rehear it sua sponte en banc, and then in connection with that, say the 9th en banc panel are sua sponte ordering a stay until the decision is reheard or if that reheard en banc decision is appealed, then stayed until the supreme court decides on the appeal. What will the excuse be about why a stay is needed to prevent irreparable harm? Same reason as in peruta, because if the ban is lifted, the entire second amendment jurisprudence in CA will be upended with resulting increase in gun violence. That was what Kampala Harris argued when she asked them after it was all over, to let her horn in on the case and to rehear it en banc. She said the case has such large public policy impact, which is what they said for peruta. In fact, why in peruta when the sheriff did not appeal it and thus it would have stood, allowed Kampala Harris the AG to file a notice of intervenor request for emergency stay and rehearing en banc. But the court en banc panel decided there too, SUA SPONTE to rehear. And rehearing avoids the fairness of the deferential standards normally required by appeals judges, who are not “re trying” the case, but applying certain appellate rules such as mistakes of law or procedural/constitutional issues that meant procedural, the parties were not fairly heard, if the judge abused his discretion. If it was all procedurally proper (especially as here) the appeals court can’t substitute their judgment for that of the lower court judge. But I bet these 9th en banc judges will do just that.
I saw the filings done by Miller in opposition to the a.g. request for emergency stay in this case, and when I saw the words
In deciding whether a party has demonstrated such a strong likelihood of
success, this Court must review the District Court’s findings of fact for clear error,
conduct a de novo review of the District Court’s legal findings, and consider the
scope of the injunction under a deferential abuse of discretion standard. Index
Newspapers, 977 F.3d at 824 (citing cases)
If deciding sua sponte lets them essentially retry the case, and issue a stay for as long as athey can, that is what they will do. Mark my words.
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