California has banned modern semi-auto rifles for many years, but federal
Judge Roger Benitez declared that prohibition to be unconstitutional.
Now the case is headed to appeal.

A few years ago, most people never heard of U.S. District Court Judge Roger T. Benitez in San Diego, but that was before he handed down two opinions about California gun control laws that caused the gun prohibition movement to begin gnashing its teeth.

Benitez, now a senior judge of the federal District Court for the Southern District of California, is making anti-gunners crazy. In a profile published by the San Diego Union-Tribune in October of last year, one gun control proponent stated, “They (Second Amendment advocates) struck gold with this one judge.”

Evidently so, he’s the judge who overturned California’s requirement that people buying ammunition must submit to background checks. Of course, the Ninth Circuit Court quickly reversed that ruling, but his 120-page ruling contained some interesting observations, most notably: “Criminals, tyrants and terrorists don’t do background checks,” and “The Second Amendment is not a ‘loophole’ that needs to be closed.”

There’s a rule allowing federal judges to take on “related cases” because it allows those jurists to develop a greater understanding of the issue(s) at hand. In Benitez’ case, related cases concern gun control versus gun rights guaranteed and protected by the Second Amendment. If this were any other subject, or if the judge subscribed to the discredited notion that the Second Amendment only protects a state’s right to have a militia, the gun control crowd wouldn’t squawk.

Benitez was nominated to the district court by then-President George W. Bush. He ascended to senior status at the end of 2017.

Perhaps what makes Benitez the equivalent of the anti-Christ to gun prohibitionists is that his opinions in two cases — Duncan v. Becerra (declared the state’s ban on so-called “large capacity magazines” unconstitutional) and more recently Miller v. Bonta (which said the state ban on so-called “assault weapons” is likewise unconstitutional) — are detailed dissections of gun control as a whole.

On page 60 of his Miller ruling, the judge observed, “How well has the California ban on assault weapons worked? Before AWCA (Assault Weapons Control Act), twice in a decade, an assault weapon was used in a mass shooting. On average, since AWCA, twice a decade, an assault weapon was used in a mass shooting. The assault weapon ban has had no effect. California’s experiment is a failure.” (Emphasis in original ruling.)

Duncan v. Becerra was upheld last year by a three-judge panel of the Ninth U.S. Circuit Court of Appeals on a 2-1 vote. Almost immediately, the state appealed and requested an en banc hearing before a full appeals court panel. That hearing was scheduled earlier this week, and it may be a while before a ruling is issued.




Modern sporting rifles are used in a fraction of all homicides in any given year.
Annually, more people are killed with knives than with rifles of any kind, according to FBI data.

Judge Benitez wrote, in his recent opinion in the Miller case, “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. For example, according to F.B.I. statistics for 2019, California saw 252 people murdered with a knife, while 34 people were killed with some type of rifle — not necessarily an AR-15. A Californian is three times more likely to be murdered by an attacker’s bare hands, fists or feet, than by his rifle. In 2018, the statistics were even more lopsided as California saw only 24 murders by some type of rifle. The same pattern can be observed across the nation.”

No matter what happens on appeal, this fact is undeniable. More people are murdered with knives, bare hands, feet or fists than with rifles of any kind. It’s not speculation; it’s the FBI data.

This leads gun rights activists to wonder why there is such a push to ban a whole class of firearms involved in only in a fraction of all homicides in any given year.

There was something else in the Miller ruling that cuts right to the heart of the gun control crusade: “But it should be obvious that barring total extinction of the Second Amendment, no amount of ‘common sense’ gun control laws will prevent criminals from misusing guns.” Well, DUH!

Pistol magazines like this 15-rounder from Sig Sauer are prohibited in California,
but Judge Benitez ruled that ban is also unconstitutional. The ruling was upheld
2-1 by a three-judge panel. The case is under appeal.

Large Capacity Mags

Don’t get the impression California’s ban on “large capacity magazines” is just for rifles.

Many, if not most modern semiautomatic pistols carry more than 10 rounds in the magazine. In California as elsewhere, anti-gun activists came up with the 10-round limit pretty much out of thin air. There is no data to support the idea 10-rounders are safer than 15-rounders. In fact, one of the most notorious recent cases of a “mass shooting” demonstrates otherwise.

Santa Barbara’s Isla Vista killer Elliot Rodger murdered three people in a violent killing spree that also involved fatally slashing/stabbing three others. He owned three handguns, passing background checks and 10-day waiting periods under California law to purchase all three at separate times. He used California-compliant 10-round magazines in his rampage, but nobody talks about that much.

Many also gloss over the fact he murdered three people with a knife. They usually refer to the Isla Vista mass shooter, period.

In November 2018, a killer identified as David Long, 28, opened fire at the Borderline Bar and Grill in Thousand Oaks, Calif. He violated California law by carrying seven 30-round magazines, according to a report from ABC News at the time. It was essentially a California gun control failure, a fact anti-gun activists avoid.




Who Is Judge Benitez?

Roger Benitez was born in Havana, Cuba on December 30, 1950.

Educated at Imperial Valley College, San Diego State University and Western State University College of Law, he was in private practice in California from 1978 to 1997, according to an online biography on Wikipedia. From 1997 to 2001, he was a judge on the California Superior Court.

He was also an instructor at Imperial Valley College 1998-99.

In 2001, Benitez was appointed to the U.S. District Court for the Southern District of California as a U.S. Magistrate Judge. He was nominated by Bush in May 2003 and confirmed in June 2004.

At age 70, he may not be ready to hang up his gavel just yet, despite his elevation to the senior judgeship.

The Daily Beast called him a “Second Amendment champion.” On the other hand, a reporter at Slate intimated he is delusional, and NBC News noted in a report, “His nomination was overwhelmingly opposed by a committee of the American Bar Association, which said other judges and lawyers interviewed about him described him as being arrogant, short-tempered and ‘altogether lacking in people skills.’”

No pun intended: You be the judge.



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