Last year, Federal District Court Judge Roger Benitez ruled that California’s “assault weapons” ban is unconstitutional in Miller v. Bonta. Benitez applied the Heller decision’s ruling to his decision in the case. He then refused a request to stay his order while the case was appealed by the state to the Ninth Circuit court of appeals. A Ninth Circuit panel, naturally, issued a stay while they considered the case.
That was then. We now live in a post-Bruen world.
Earlier today, the Supreme Court vacated a ruling in a similar case — Bianchi v. Frosh — in which the Fourth Circuit Court of Appeals upheld Maryland’s “assault weapons” ban using the now repudiated two-step interest balancing approach that Bruen eviscerated.
Today, the Firearms Policy Coalition filed a motion with the Ninth Circuit asking the court to lift its stay of Judge Benitez’s ruling, arguing that the Court can’t reasonably overturn Judge Benitez’s ruling on the merits given the new legal landscape.
BREAKING: We just filed a motion asking the Ninth Circuit to lift the stay in our lawsuit challenging California’s ban on so-called “assault weapons,” which, if granted, would allow the judgment striking down the ban to go into effect. Read it here: https://t.co/UonezvsaeG
— Firearms Policy Coalition (@gunpolicy) June 30, 2022
The FPC’s motion argues that the basis for granting the stay no longer exists . . .
In the end, Appellants’ principal, and necessary, argument supporting their request for a stay was their claim that they were likely to succeed on the merits on appeal. That claim no longer has even the slightest merit post-Bruen. Indeed, Bruen establishes quite the opposite: Appellants have completely failed to establish the required historical and textual support for their restrictions on bearing modern rifles in common use for lawful purposes, and both the facts and the law in this case more readily support summary affirmance than they do a stay. Because appellants are not even remotely “likely” to succeed on the merits, the stay pending appeal should be lifted immediately.
If the motion is granted removing the stay, Benitez’s ruling would go into effect, striking down (for now) California’s “assault weapons” ban and putting the Golden State on the same footing with forty-some other states in the nation. You know, all those free states where citizens can buy a normally-equipped semi-automatic rifle if they choose.
California could still try to pursue an appeal of the ruling with the Ninth Circuit, but the state’s chances of prevailing are now heavily stacked against them.
As for the hysterics that are sure to come from just about everyone in California government from Governor Newsom on down, the FPC motion notes . . .
The ubiquity of these types of firearms throughout the country demonstrates that there will be no sudden catastrophe in California once the stay is lifted. Any speculation or conjecture about the “harm” that may result from enforcing constitutionally protected fundamental rights is just that—speculation and conjecture—and cannot justify a stay of a properly entered judgment where there is no likelihood of success on the merits.
Watch this space.
