This is a challenge to California’s weapons ban. Judge Benitez used Heller, following the instructions of Bruen, and decided the case for the plaintiffs (good guys).

An analysis of the state’s request for an emergency stay pending appeal shows the state in nearly full on panic.
(2400 words)

It looks like this case has been up and down the ladder at least twice.

Judge Benitez gave the state 10 days to get a stay from the Ninth Circuit court. Theses are calendar days, per —Rules For Appellate Procedure (U.S.). This means that on the 29th of October 2023, the “Assault Weapons Ban” of California will be fully enjoined. People will once again be able to purchase rifles that have been banned for years.

Interestingly, they will not be able to purchase handguns that were excluded by the AWB. This is because none of the named AWB Pistols are on the handgun roster.

The state has filed for an emergency stay with the Ninth Circuit court.

To get a stay, the petitioner must meet the four Winters factors: the likelihood of success on the merits, irreparable injury, the balance of equity, and public interest. In Baird v. Bonta, the district court changed the order in which they weighted the four factors; they literally took them out of order. The Ninth Circuit then reversed the order (the legal statement of the court) of the district court. In plain language, the Ninth Circuit said that the inferior court got it wrong, and their (the Ninth Circuit) statement was the correct one.
In Baird v. Bonta, the Ninth Circuit reversed the order of the Winters factors used by the district court‘s order.

The district court abused its discretion by improperly applying the preliminary injunction standard.

As noted above, proper analysis of a preliminary injunction motion requires a district court to examine the Winter factors. The first factor—likelihood of success on the merits—is the most important (and usually decisive) one in cases where a plaintiff brings a constitutional claim, including a Second Amendment claim. Bruen did not change this multifactor preliminary injunction test, and the district court therefore abused its discretion when it deliberately skipped any analysis of the first Winter factor.
Mark Baird v. Rob Bonta, No. 23-15016, slip op. at 9 (9th Cir.)

What does this mean to us? It means that anytime anybody requests a stay within the Ninth Circuit, the court must look at the merits first. If the likelihood of success on the merits favors the movementmovant (the person filing the motion), then the other three factors are considered.

In a civil rights case, any abridgment or infringement of a constitutionally protected right is, by definition, an irreparable injury. The balance of equity favors the protection of constitutionally protected rights. There is no public interest in enforcing an unconstitutional law.

This means that if the movementmotion is based on a constitutional challenge, if the movementmotion is likely to win on the merits, the other three factors favor the movementmovant as well.

The state’s argument for a stay

They start with emotional blackmail. These firearms are defined as assault weapons because of particular features that make them uniquely dangerous to the public and to law enforcement. The state has never actually established this with evidence.

From there, they explain that it is no big deal. That aThey say it is to … simply suspend[] judicial alteration of the status quo.

In Heller, McDonald, Caetano, and Bruen there are some weak words in dicta. The state pulls all of them. The state claims that these weak phrases are the “critical lessons of [the Bruen] decision”. The state claims that the Supreme Court “emphasized” that the rights secured by the Second Amendment are not unlimited. “Not all weapons are presumptively protected”, “weapons that are most useful in military service — M-16 rifles and the like — may be banned” are the other weak phrases that the state attempts to elevate to critical lesson status.

From there, the state moves forward, arguing that their particular issue needs not be a “dead ringer” and that a more “nuanced approach” is required because … reasons.

Of course, they claim that the findings of inferior district courts in different circuits also indicate that the state should win.

Text, History, and Tradition

The two prongs of Heller are, “Is the plain text of the Second Amendment implicated by the proposed conduct?”, and “Is there a history and tradition of regulation which is analogous with the current regulation?”

The first prong is upon the plaintiffs (the good guys).

Are “assault” weapons arms? YES! They are called out as weapons! That is precisely the excuse the state is using to ban them. They are too good as weapons to allow The People to possess them.

What is the proposed conduct? To possess these arms. The Supreme Court stated in Heller that “possessing” is part of “keeping”. Thus, the conduct implicates the Second Amendment.

That is the end of the plaintiff’s burden.

The state now has the burden of proving that it either it is not a protected arm, or of providing historical analogous regulations.

In order for an arm to be excluded from the protections of the Second Amendment, the arm must not be bearable OR it must be both dangerous AND unusual.

Under Heller, the Supreme Court found that if an arm is in common use, today, it is not unusual. The state must prove that the banned weapons are not common.

The state argues that the definition of “in common use” does not include possession. It only includes “in common use for self-defense”. Further, that “use for self-defense” means rounds fired. If that was still “common”, you can be sure that they would argue rounds fired and perp dead.

This is not the Supreme Court’s definition. It should not be accepted at any level.

Because the requirement is conjunctive, dangerous, AND unusual, the state loses this argument on the merits. That leaves “bearable”. The state has argued, unendingly, that “assault weapons” are particularly dangerous because they are easily bearable.

But the district court ignored the reasoning of its sister courts. Based on the popularity of certain AR-platform rifles among some gun owners, it concluded that all assault weapons (including semiautomatic pistols and shotguns) are presumptively protected arms. In reaching that conclusion, it failed to give serious consideration to the State’s evidence that assault weapons are not commonly used for self-defense. And the district court’s historical inquiry was the opposite of the nuanced approach called for by Bruen. It disregarded most of the relevant analogues and asserted that “[d]uring the most important period of history, there were relatively few gun restrictions” “of any kind.” Order 27-28. Under the district court’s view, it appears that no state regulation banning any firearm would be “consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2130. That cannot be correct.
Motion for Stay, Miller v. Bonta, No. 23-2979 (9th Cir.)

Double emphasis added.

“Based on the popularity” means “in common use for lawful purposes”. “Failed to give serious consideration to the State’s evidence” doesn’t mean what the state thinks it means. The state argues in use for self-defense only counts in cases where the firearm is fired. They depend on surveys conducted of newspapers and other media sources. They didn’t bother to pull statistics from their own collected data.

It is also the case that the Supreme Court has ruled that banning something, then claiming it is not commonly used to justify the ban, doesn’t work. The obvious answer to why it is not commonly used is because it is banned.

For the court to use a more “nuanced approach”, the state must prove that there is an unprecedented change in technology or societal change. What the state is whining about is that the district court didn’t agree with them.

The state does get it though, Under the district court’s view, it appears that no state regulation banning any firearm would be “consistent with the Nation’s historical tradition of firearm regulation.”id.

I missed something on the first read through: “irreparable harm” is missing. We know what the four Winter factors are, we know that the Ninth Circuit in Baird v. Bonta ruled that the Winter factors must be followed in order. To ignore the irreparable harm factor is improper.

The issue for the state is that denial of a Constitutionally Protected right is irreparable harm, to the plaintiffs. The state would have to show it was being harmed by the injunction in a way that is irreparable. The most the state can argue is that “assault weapons will flood into the state”. This is not a strong argument.

Instead, the state claims they will win on the merits by claiming the district court evaluated the evidence presented erroneously.

The state makes a powerful equitable consideration argument: Guns are bad, assault guns are super-duper bad. Bad people use assault guns.

Gun owners will remain able to purchase and possess a wide range of firearms for self-defense and other lawful purposes-including featureless AR-platform semiautomatic rifles that are not prohibited because they do not contain the dangerous tactical enhancements that qualify a firearm as an “assault weapon” under Section 30515.
id. at 4

The Supreme Court set out in Heller that allowing The People some options while restricting others does not make the restriction Constitutional.

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
District of Columbia v. Heller, 467 U.S. 837, 2818 (2008)

This is one of the core findings of the Heller opinion. The state can’t offer an alternative in law to the protected right. The government doesn’t get to decide what is common use, that is for The People to decide.

For the state to claim that their infringement is acceptable because they have given The Serfs an alternative flies directly in the face of Heller. If the concept of an alternative being good enough is true, there is nothing to stop the state from offering smaller and smaller alternatives.

The following quote is an example of the types of citations I observe in many infringing arguments. It is the equivalent of taking 25 words from forty hours of speeches, stringing them together to make it sound as if something were said that was not actually said.

As the great weight of district court authority indicates, the restrictions challenged here are consistent with the Second Amendment under the standards announced in Bruen. At the threshold, plaintiffs must establish that the “textual elements” of the Second Amendment—the right to “keep and bear” protected “Arms”—cover their desired course of conduct. Bruen, 142 S. Ct. at 2134; see id. at 2129-2130. The Supreme Court has repeatedly recognized that the textual right “‘is not unlimited.’” Id. at 2128. It “extends only to certain types of weapons,” Heller, 554 U.S. at 623, that are “in ‘common use’ today for self-defense,” Bruen, 142 S. Ct. at 2134. It most certainly does not confer a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554 U.S. at 626.
Motion for Stay at 13–14, Motion For Stay in Miller v. Bonta, No. 23-2979

Bruen did not announce new standards or even standards, they told the inferior courts to apply Heller correctly.

Take a careful look at this language: plaintiffs must establish that the “textual elements” of the Second Amendment—the right to “keep and bear” protected “Arms”—cover their desired course of conduct.id. at 13 The plaintiffs must establish that the item is an arm and that the conduct implicates the Second Amendment.

The plaintiffs do NOT have the burden to prove that the arm in question is protected by the Second Amendment, the state has the burden to prove that the arm is NOT protected. The plain text of the Second Amendment does not limit what arms are protected. The Supreme court has set the definition of what arms are under the Second Amendment.

Once the desired conduct implicates the Second Amendment, the burden shifts to the state to prove that the arm is not bearable, or “dangerous and unusual”, or that there is a history and tradition of regulations prohibiting the desired conduct.

It is not good enough to show a matching prohibition, the how and why must also match. That is to say, a regulation prohibiting arm storage in a particular location due to fire concerns is not a match in “why” to making that same class of locations “sensitive locations” out of fear of guns.

The state is real big on those other lower courts ruling for gun bans. They seem to feel that law is about popularity. The person with the most votes wins. That is not how the law works.

As a side observation, the state makes many citations to their experts’ declarations. Instead of citing the actual regulation targeting specific types or characteristics of weapons, they instead cite the Spitzer Declaration.


Most of this motion is bad-mouthing Judge Benitez. He didn’t do it the way the state wanted him to. He didn’t do it the way these other district courts did. No Circuit Court would depend on the majority rule of inferior courts to decide a case.

The Circuit Court should take up the case, precisely because there is a split in inferior court decisions.

The language of the state makes it absolutely clear that the state understands exactly how bad Judge Beitez’s final judgement was for them. If his judgement stands, it means that there can be no gun bans.

It is wonderful to see the state in a panic.

This case might actually go better for The People than Duncan v. Bonta The en banc panel that took back Duncan was not involved with Miller. The three judge panel of Silverman, Nguyen, and R. Nelson might get the case back as a “comeback”. Even so, they are less likely to be as entrenched as the en banc panel.

It will be interesting to see if the state gets any sort of stay based on this low-quality submission.


Rules For Appellate Procedure (U.S.)
District of Columbia v. Heller, 467 U.S. 837 (2008)
Winter V. Natural Resources Defense Council, Inc., 172 L. Ed. 2d 249 (2008)
Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010)
Caetano v. Massachusetts, 136 S. Ct. 1027 (2016)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
Mark Baird v. Rob Bonta, No. 23-15016 (9th Cir.)
Motion for Stay, Miller v. Bonta, No. 23-2979 (9th Cir.)
The Constitution of the United States: A Transcription, National Archives, (last visited Jun. 25, 2023)

[Edited by Hagar, for grammar and readability.]

Spread the love

By awa

5 thoughts on “Miller v. Bonta, Round 4, Ninth Circuit Court, FIGHT! -edited”
  1. The funny thing about “weapons that are most useful in military service — M-16 rifles and the like — may be banned” is that the one good thing about the infamous Miller decision is that it said exactly the opposite.

  2. The state claims Judge Benitez didn’t look at the evidence on the first Winter criterion — the likelihood of success on the merits.
    My thought: Perhaps he didn’t address the evidence in his decision — read: he didn’t write about it — because a core civil right enshrined in the Constitution is being violated, and under Bruen that’s all it takes to be likely to succeed on the merits. He doesn’t need to write about every piece of “evidence” and every “expert” testimony to come to the exact same conclusion.
    To make a really bad analogy: Judge Benitez concluded California’s “gun control” house needs to be condemned, and the state is complaining that he “did it wrong” because he didn’t comment on the curtains.

    1. Hagar edited this article for me. It had some things that were unclear. The state is asking for a stay. For a stay to be granted, the movant (bad guys/state) must meet the four Winter factors: the merits, irreparable harm, balance of equities, and public interest. In an earlier case, the Ninth Circuit reversed an inferior court not granting a preliminary injunction.
      In that case, the Ninth Circuit said the inferior court was in error because they started the analysis with public interest first. Once they found that the public interest favored the state, they denied the preliminary injunction.
      Judge Benitez has entered his final judgement. The state is now attempting to block that judgement. First, with a stay from the district court, judge Benitez gave them 10 days. Then by an administrative stay from the Ninth Circuit until the Ninth can decide on a stay, then a stay pending appeal, and finally, by the Ninth reversing the inferior (district) courts judgement.

      1. I am glad to hear you two are working together. A good editor can really help you clarify your message. (A bad editor … ugh!)

        Too often, I trashed half of an evaluation because my fuzzy brain messed it up, but my reviewer found my mistakes.

Only one rule: Don't be a dick.

This site uses Akismet to reduce spam. Learn how your comment data is processed.