The Hon. Roger T. Benitez: federal judge, rock star

In his decision overturning California's assault weapon ban,

 'Saint Benitez' has given us a sermon for the ages.

by Lee Williams at The Gun writer

After reading United States District Judge Roger T. Benitez’s 94-page decision in Miller v. Bonta, I wanted to jump up, scream “Murica,” salute the flag, hug my ARs, reenlist, watch Red Dawn for the ten-thousandth time, light off fireworks, chug some small-batch bourbon and dance — and I don’t dance!

It is singularly the most incredible legal decision I have ever read. It is without peer — a truly incredible work. Every single freedom-loving American should read every single word.

Not only does the good judge eviscerate every false claim anyone has ever made against the AR — including a few I hadn’t ever heard — he destroys most of the arguments currently in use by the anti-rights crowd.

Judge Benitez’s decision is rock solid and tight — certainly capable of withstanding appellate review.

Here are the best parts of his decision, starting with the introduction:

“Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller, 554 U.S. 570 (2008) and United States v Miller, 307 U.S. 174 (1939). Yet, the State of California makes it a crime to have an AR-15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.”

He lays into the gun banners and their supporters in the legacy media for perpetuating lies and hyperbole:

“This case is not about extraordinary weapons lying at the outer limits of Second Amendment protection. The banned ‘assault weapons’ are not bazookas, howitzers, or machineguns. Those arms are dangerous and solely useful for military purposes. Instead, the firearms deemed ‘assault weapons’ are fairly ordinary, popular, modern rifles. This is an average case about average guns used in average ways for average purposes,” Judge Benitez wrote. “One is to be forgiven if one is persuaded by news media and others that the nation is awash with murderous AR-15 assault rifles. The facts, however, do not support this hyperbole, and facts matter. Federal Bureau of Investigation murder statistics do not track assault rifles, but they do show that killing by knife attack is far more common than murder by any kind of rifle. In California, murder by knife occurs seven times more often than murder by rifle.”

On the utter stupidity of an assault weapon ban:

“As one commentator describes it, mere possession of an object that is commonplace and perfectly legal under federal law and in forty-four states will land you in prison, will result in the loss of your rights including likely the right to vote, and probably will cause you irreparable monetary and reputational damages, as well as your personal liberty. All of this despite the absence of even a single victim.”

On whether ARs are in common use:

“Modern rifles are popular. Modern rifles are legal to build, buy, and own under federal law and the laws of 45 states. There are probably more modern rifles in circulation than there are Ford F-150 pickup trucks. In 2018, 909,330 Ford F-150s were sold. Twice as many modern rifles were sold the same year. Imagine, every time one passes a new Ford pickup truck, it is a reminder that two new modern rifles have been purchased. That is a lot of modern rifles owned by Americans. Other courts agree. Even accepting the most conservative estimates cited by the parties and by amici, the assault weapons at issue are ‘in common use’ as that term was used in Heller.”

On who bears the burden of proof in this and other 2nd-Amendment cases:

“Plaintiffs do not have to shoulder the burden of proving that they are entitled to enjoy Second Amendment rights. The command of the Amendment is that the right to keep and bear arms ‘shall not be infringed.’ It follows that when a citizen complains in a facial challenge that the government is infringing, then it is the government that must carry the burden of justifying its restriction of Second Amendment rights.”

On California-compliant alternatives:

“The problem is that the alternatives-remain argument has no limiting principle and would justify incremental firearm bans until there is only a single-shot derringer remaining for lawful self-defense.”

On ARs for home defense:

“Without question, there is clear evidence that AR-15 rifles are and have been used for self-defense. For example, in one case an AR-15 was used in Florida by a pregnant wife and mother to defend her family from two armed, hooded, and masked home intruders. As soon as the armed intruders entered the back door of her home, they pistol-whipped her husband — fracturing his eye socket and sinus cavity. Then they grabbed the 11-year-old daughter. Before they could do any more harm, the pregnant wife retrieved the family AR-15 from a bedroom and fired, killing one of the attackers while the other fled.”

On why the features that are banned in California make an AR a good choice for home defense:

“The evidence shows that one reason for the popularity of the modern rifle is that it makes a good weapon for self-defense at home. The AR-15, in particular, is an easy firearm to shoot accurately and is generally easier to fire accurately than a handgun. The AR-15 rifle is light in weight, and has good ergonomics, and is suitable for people of all statures and varying levels of strength. When burglars break and enter, a homeowner with a modern rifle has thirty rounds at the ready, assuming a standard magazine is used. Standard size magazines are ubiquitous. With the physiological stress of waking to the noise of home invaders, one may need many rounds to overcome the difficulty of aiming in the dark at multiple attackers making furtive movements. The adjustable stock can be quickly set for one’s arm length. The pistol grip gives a homeowner a secure hold with one hand while the other hand holds a telephone or spare magazine. A flash suppressor prevents the night-time home defender from being blinded by her own muzzle flash. It may also hide the home defender’s location from attackers. A barrel shroud serves as a way to attach a flashlight or laser pointer. The straight-line design of an AR-15 is easier to shoot accurately because muzzle rise is reduced. The gas piston design reduces the recoil so that the young or old or not-particularly-strong have better control. The light weight makes it easy to hold and use, while the short 30-inch length (compared to a 48” traditional shotgun) makes it more maneuverable through the narrow doorways and hallways of a home.”

On the AR’s use by mass murderers

“Analyzing the list of 161 national events, Allen finds that 78% of mass shooting events did not involve an assault weapon. Put differently, across the U.S. only 22% did involve an assault weapon. Her opinion comports with other evidence in the record. Professor Mark Gius reports even less frequent use of assault rifles in mass shooting events. Gius says, ‘contrary to popular belief, however, assault rifles were not the predominant type of weapon used in these types of crimes. In fact, according to a recent study, handguns were the most used type of firearm in mass shootings (32.99% of mass shootings); rifles were used in only 8.25% of mass shootings.’ That may come as a surprise to the public that is constantly told that assault weapons are often used in mass shootings.”

On whether gun bans work:

“Put simply, the evidence indicates gun bans are ineffective at reducing gun crimes. Plaintiffs’ expert, economist John R. Lott, Jr., opines that ‘all credible evidence shows that assault weapon bans have little to no effect in reducing mass shootings, homicides, or violent crime in general.”

In conclusion:

“You might not know it, but this case is about what should be a muscular constitutional right and whether a state can force a gun policy choice that impinges on that right with a 30-year-old failed experiment. It should be an easy question and answer. Government is not free to impose its own new policy choices on American citizens where Constitutional rights are concerned. As Heller explains, the Second Amendment takes certain policy choices and removes them beyond the realm of permissible state action. California may certainly conceive of a policy that a modern rifle is dangerous in the hands of a criminal, and that therefore it is good public policy to keep modern rifles out of the hands of every citizen. The Second Amendment stands as a shield from government imposition of that policy. There is only one policy enshrined in the Bill of Rights. Guns and ammunition in the hands of criminals, tyrants and terrorists are dangerous; guns in the hands of law-abiding responsible citizens are better. To give full life to the core right of self-defense, every law-abiding responsible individual citizen has a constitutionally protected right to keep and bear firearms commonly owned and kept for lawful purposes. In early America and today, the Second Amendment right of self-preservation permits a citizen to ‘repel force by force’ when ‘the intervention of society in his behalf, may be too late to prevent that injury.’” Heller, 554 U.S., at 594. Then, as now, the Second Amendment ‘may be considered as the true palladium of liberty.’ Id. at 606 (citation omitted). Unfortunately, governments tend to restrict the right of self-defense. ‘In most governments it has been the study of rulers to confine the right within the narrowest limits possible.’ Fortunately, no legislature has the constitutional authority to dictate to a good citizen that he or she may not acquire a modern and popular gun for self-defense. The Court does not lightly enjoin a state statute. However, while the Court is mindful that government has a legitimate interest in protecting the public from gun violence, it is equally mindful that the Constitution remains a shield from the tyranny of the majority. As Senator Edward Kennedy said, The judiciary is — and is often the only — protector of individual rights that are at the heart of our democracy.’ Law-abiding citizens are imbued with the unalienable right to keep and bear modern firearms.”

This is not the first time Judge Benitez has gone to bat for gun owners. Four years ago he torpedoed California’s ban on standard-capacity magazines — a decision that is still being litigated.

Federal judges are appointed for life, so there is no need to worry about the good judge’s reelection or reappointment.

However, I hope a future president will recognize Judge Benitez’s incredible value and worth and appoint him to our highest court.

As always, thanks for your time.

Lee