California's Assault Weapons ban Likely to be Upheld in 9th Circuit Court of Appeals
Judges Marsha Berzon, Jacqueline Nguyen, and Eric D. Miller to hear appeal
On October 19, 2023, Federal District Court Judge Roger T. Benitez permanently enjoined, “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), 30945 (restricting use of registered “assault weapons”), and the penalty provisions §§ 30600, 30605 and 30800 as applied to “assault weapons” defined in Code §§ 30515(a)(1) through (8).” The case is Miller et al. v. Bonta et al.
Judge Benitez had originally permanently enjoined aspects of California’s so-called “assault weapons” ban on June 4, 2021. The State of California filed an appeal during which the injunction was stayed (and remains stayed). On August 1, 2022, 9th Circuit Court of Appeals judges SILVERMAN, NGUYEN, and R. NELSON granted the State of California’s motion to vacate the decision of Judge Benetiz and remanded “to the district court for further proceedings consistent with the United States Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen…”
Although the Miller v. Bonta lawsuit was first filed on August 15, 2019, the practical effect of reversing and remanding the case meant the case was nearly starting over from the beginning.
Fourteen months and eighteen days after the final judgment permanently enjoining the ban by Judge Benitez was vacated and remanded by the three-judge panel of the 9th Circuit Court of Appeals, Federal District Court Judge Benitez once again issued a final judgment in which he permanently enjoined aspects of the ban.
Judge Benitez’ permanent injunction was stayed and remains stayed. Now that we know who the three judges assigned to the appeal are, we know the chances of the plaintiffs prevailing are slim to none. California’s assault weapon ban will be upheld.
First of all, there are no “pro-gun” judges on the 9th Circuit Court of Appeals. A handful reluctantly, and rarely pay lip service to the Second Amendment but it takes two judges to win before a three-judge panel and two of the three judges on the panel, Judges Marsha Berzon, and Jacqueline Nguyen, are anti-gun. Senior Judge Berzon in particular wrote that we Americans need only two bullets to defend ourselves. This is the first time we will get to see Judge Eric D. Miller weigh in.
The oral argument is scheduled to take place on January 24, 2024, at 2:00 PM, Courtroom 1, Richard H. Chambers US Court of Appeals, Pasadena.
How long we will have to wait for the three-judge panel to publish its opinion is an open question. The Fourth Circuit Court of Appeals decided not to wait for the likely 2-1 three-judge panel opinion striking down the Maryland assault weapon ban and took the appeal en banc.
That is unlikely to happen here for a couple of reasons. First and foremost, there isn’t much chance of a Second Amendment win before this particular three-judge panel. Secondly, had the Second Amendment prevailed in this case before a three-judge panel, the three-judge panel opinion would have been vacated and reheard before a limited en banc panel of the 9th Circuit Court of Appeals and in the case of a statistically improbable Second Amendment win before a limited en banc panel, that limited en banc panel opinion would be vacated and reheard before the full court of appeals where the Second Amendment would undoubtedly lose. (An En banc panel in every circuit except for the 9th is a Full Court panel. In the 9th Circuit, the en banc panel consists of 11 judges.)
It is almost certain that the en banc (Full Court) panel of the Fourth Circuit will uphold the Maryland assault weapons ban. Knowing this, the 9th Circuit three-judge panel in Miller v. Bonta has an incentive in not waiting for the Fourth Circuit to publish its opinion upholding the Maryland assault weapons ban.
The reason they have an incentive not to wait for the Fourth Circuit en banc panel to publish its opinion is because there has not been a published Second Amendment post-Bruen opinion on the merits in this circuit. If the Miller v. Bonta panel is the first panel to publish a Second Amendment opinion then it can cripple the Supreme Court mandated NYSRPA v. Bruen methodology for deciding Second Amendment cases in this Circuit. Federal District Court judges follow circuit court precedents even when those circuit court precedents conflict with the United States Supreme Court. Congress can change that, but it won’t because Hunter Biden is more important to Republican voters than cleaning up the Federal judiciary, the latter not being important to voters at all.
When California’s assault weapons ban is upheld, there will not be a circuit split. Resolving circuit splits is the primary reason why the Supreme Court grants cert petitions. The Supreme Court has granted only four Second Amendment cert petitions to decide the case on its merits. One of those four was dismissed as moot. Compare that number to the number of First or Fourth Amendment cert petitions SCOTUS has granted, not to mention the number of cert petitions granted to decide the merits of questions that are not of national importance. Miller v. Bonta won’t be the first assault weapons cert petition filed but it is likely to be a cert petition that is denied. Likewise the plaintiffs’ cert petition out of the Fourth Circuit. The Fourth Circuit is highly unlikely to create a circuit split by striking down the Maryland assault weapons ban.