Here Comes Da Judge!

The Wisdom Of U.S. Judge Roger Benitez Hits Home

California doesn’t like rifles that look like this one, and U.S.
District Judge Roger T. Benitez said the ban is unconstitutional.

The name of U.S. District Judge Roger T. Benitez, who holds court in San Diego, ought to be cast in bronze and/or carved in stone in recognition of the fact that this is a rare jurist who understands the Constitution and the importance of digging into the history of gun regulation.

Add to that the judge’s willingness to call hogwash on arguments by the State of California about why its ban on so-called “assault weapons” should be upheld. And he’s non-too-shy about demolishing testimony from the state’s “expert” witnesses while reminding the state’s attorneys that the Supreme Court in Bruen said no more interest-balancing to justify restrictive gun laws.

Indeed, his recently-released 79-page opinion striking down California’s ban — for the second time — is a matter-of-fact narrative, not just because it dissected the state’s arguments obviously resulting from the judge’s meticulous homework (he took months to research and hand down this opinion), but also because it elicited a reaction from Gov. Gavin Newsom which borders on the absurd.

“Judge Benitez,” Newsom said in a prepared statement on Oct. 19, “is hellbent on making it more dangerous for our kids to go to school, for families to go to the mall, or to attend a place of worship. We are working with Attorney General Rob Bonta to fight this extreme and logically incoherent ruling and keep California safer, but we should not have to go get Judge Benitez overturned every time he decides to write a love letter to the gun lobby. This is exactly why I’ve called for a Constitutional amendment, and this is why I’ll keep fighting to defend our right to protect ourselves from gun violence.”

On the same day, the governor cut loose on “X” (formerly Twitter), with this nastygram: “Today, a right-wing, NRA puppet — Judge Roger Benitez — tried to strip away CA’s three-decade-old assault weapon ban — comparing an assault rifle to a knife. An absolute disgrace. This is exactly why America needs a constitutional amendment to enshrine commonsense gun safety reforms. Until then, extremist judges will continue to tear down the will of the American people.”

What did Judge Benitez say that was so offensive to Newsom and other gun prohibitionists? Here’s a sample:

“Americans have an individual right to keep and bear firearms. The Second Amendment to the United States Constitution ‘guarantee[s] the individual right to possess and carry weapons in case of confrontation.’ Whether citizens ever fire or need to fire their weapons, is not important. This guarantee is fully binding on the States and limits their ability to devise solutions to social problems. And the guarantee protects “the possession of weapons that are ‘in common use,’” or arms that are ‘typically possessed by law-abiding citizens for lawful purposes.’ These are the decisions this Court is bound to apply.”

Common Sense

The gun control crowd constantly harps about “common sense” gun laws. Here’s some genuine common sense from Judge Benitez:

“The State’s attempt to ban these popular firearms creates the extreme policy that a handful of criminals can dictate the conduct and infringe on the freedom of law-abiding citizens. As Heller explains, the Second Amendment takes certain policy choices and removes them beyond the realm of permissible state action. California’s answer to the criminal misuse of a few is to disarm its many good residents. That knee-jerk reaction is constitutionally untenable, just as it was 250 years ago. The Second Amendment stands as a shield from government imposition of that policy.”

Some people have taken to referring to his honor as “Saint Benitez,” a title which may or may not be appreciated by the veteran jurist, but it may not be a good idea to do that as it tends to taint anything he says in the future about any gun control law he may strike down. Still, when Benitez writes an opinion which cuts to the heart, if not the marrow, of the fight over Second Amendment rights, his words display evidence of remarkable research and a clear understanding of the amendment’s importance.

Insider Online’s readers like statistics. In the judge’s ruling in Miller v. Bonta, he produces some eye-openers.

“Americans today own 24.4 million modern rifles (i.e., AR-15 platform and AK-47 platform rifles), according to the State’s expert,” Judge Benitez writes. “Of the AR-15 rifle owners surveyed, 61% said one reason they acquired their gun is for home defense … Guns for self-defense are needed a lot because crime happens a lot. A recent large-scale survey estimates that guns are needed defensively approximately 1,670,000 times a year. Another report, originally commissioned and long cited by the Centers for Disease Control and Prevention estimated that there are between 500,000 and 3,000,000 defensive gun uses in the United States each year…That is where an AR-15 style semiautomatic rifle can come to the rescue. And although this Court focuses its analysis on rifles, California’s ban also includes such common weapons as semiautomatic shotguns with removable magazines and semiautomatic handguns with threaded barrels.”

California, as Judge Benitez observes, doesn’t like modern semi-auto pistols if they have threaded barrels. Models such as those from Glock are prohibited under the state’s Draconian gun laws.

Later in his ruling, the judge observes, “The United States Department of Justice reports that in the year 2021, in the entire country, 447 people were killed with rifles (of all types). From this, one can say that, based on a national population of 320 million people in the United States, rifles of any kind (including AR-15s) were used in homicides only 0.0000014% of the time. Put differently, if 447 rifles were used to commit 447 homicides and every rifle-related homicide involved an AR-15, it would mean that of the approximately 24,400,000 AR-15s in the national stock, less than .00001832% were used in homicides. It begs the question: what were the other AR-15-type rifles used for? The only logical answer is that 24,399,553 (or 99.999985%) of AR-15s were used for lawful purposes.”

The gun prohibition lobby despises such data because it pokes cannonball-sized holes in their arguments supporting gun bans. Rather than confront the data and respond to it, they take Newsom’s tack and call Benitez names. As noted by Goodreads, “When the debate is lost, slander becomes the tool of the loser.”

Here is part of the debate, described by Benitez, with which anti-gunners have a difficult time arguing:

“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 necessary. 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.’ Unfortunately, governments tend to restrict the right of armed self-defense. Punishing every good citizen because bad ones misuse a gun offends the Constitution.”

Stalling the Inevitable?

Some observers think one reason states are fighting back so hard — tying up cases in court for long periods in the process — is because they are simply trying to delay the inevitable, which will find the Supreme Court rejecting their gun control laws.

Keep this in perspective: A gun control law that is found to be unconstitutional today was always unconstitutional. The New York concealed carry law struck down in Bruen was unconstitutional for a century. It affected generations of law-abiding citizens, preventing them from exercising their right to bear arms for personal protection. Where is the apology to citizens for decades of “deprivation of rights under color of law?”

If some observers are right — that this is a delay tactic — it means the gun prohibitionists have read rulings by Benitez, including this one, and grudgingly, albeit quietly, concluded he is right. They just find it impossible to admit they are wrong.

Benitez makes the complicated so simple: “(I)n Wilson v. State, the Arkansas court reasonably held the view that, ‘to prohibit the citizen from wearing or carrying a war arm, except upon his own premises or when on a journey traveling through the country with baggage, or when acting as or in aid of an officer, is an unwarranted restriction upon his constitutional right to keep and bear arms.’

“As one might expect,” he continues, “Wilson reminded legislators that the solution to gun violence in 1878 was the enforcement of criminal laws rather than prohibiting the carrying of guns.” The National Rifle Association and other Second Amendment groups have been saying the same thing for decades.

Here’s a wall filled with guns which California despises, but
are legal to own across the country. The Benitez ruling—already
being appealed by the state—says such firearms cannot be banned,
thanks to the Second Amendment.

Nearing the end of his ruling, Judge Benitez observes, “The question remains, in an age where weapons run the gamut from fighter jets to tanks and anti-aircraft missiles down to AR-15s to handguns to pocketknives, which weapons are protected by the Second Amendment and which are not? As one judge understood, ‘this case and others like it demonstrate, we cannot rely on insular federal judges to weigh which weapons are appropriate for self-defense — they honestly don’t have a clue, and their intuitions about firearms are not good. And we can’t rely on governments to decide — that’s who the Second Amendment was intended to protect against. But as Heller discusses, we can look to what weapons law-abiding citizens have chosen to defend themselves — that is, what weapons are currently ‘in common use … for lawful purposes.’ It is the common firearms, in this case semiautomatic rifles, shotguns, and pistols, chosen for whatever the lawful reason, that are protected by the Second Amendment.”

This is, perhaps, the ultimate conclusion American gun owners are hoping to see from the Supreme Court. When it comes, as many activists expect, it will cause a political earthquake from Washington, D.C. down to the lowest circuit courts in the country. In the meantime, get out the popcorn and watch because the fireworks are just beginning.


I just read the article about the Elmer Keith memorial shoot in Spokane. I wanted to attend this shoot for many years and recently found out it had been discontinued. After reading Dave’s article I found out it has been resurrected. I’m very interested in attending the match as I live in Spokane.

Todd Hogue

Dave replies: Thanks for reading, Todd. I’ve forwarded your information to the Elmer Keith shoot organizers.

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