Ninth Circuit Allows Enforcement of California Gun Ban During Appeal

AP Photo/Lynne Sladky

The decision itself isn’t a shocker, given the Ninth Circuit’s history of undoing pro-Second Amendment decisions in the lower courts. The timing of a three-judge panel on the appellate court staying Judge Roger Benitez’s ruling that California’s ban on so-called assault weapons is a little unusual, with the panel issuing its own ruling this past Saturday.


The weekend ruling means that California can continue to enforce its ban on semi-automatic firearms the state has deemed “assault weapons” while Attorney General Rob Bonta appeals Benitez’s decision, but there was a small bit of good news for gun owners tucked into the Ninth Circuit’s order.

The panel also unanimously agreed that state Attorney General Rob Bonta’s appeal in support of the gun law would be heard on its merits on an expedited basis.

Siding with gun rights advocates, Benitez ruled on Oct. 19 that assault weapons prohibition deprived law-abiding citizens of semiautomatic firearms like the AR-15 in violation of the U.S. Constitution’s Second Amendment right to “keep and bear arms.”

But by a 2-1 majority the 9th Circuit panel stayed the judge’s order, citing the full appeals court’s finding in a similar case that the attorney general was likely to succeed on the merits and had shown that “California would be irreparably harmed absent a stay.”

Benitez declared the same law unconstitutional in 2021. But the San Francisco-based 9th U.S. Circuit last year vacated his order and directed Benitez to review the matter further.

Benitez last month also ruled California’s ban on high-capacity ammunition magazines unconstitutional. But the 9th Circuit subsequently allowed that statute to remain in effect while the state appeals.


The expedited briefing schedule means that oral arguments will take place before the Ninth Circuit in December, which is pretty quick. And if the three-judge panel ends up overturning Benitez’s ruling, then it will be the plaintiffs who have the opportunity to appeal. They won’t bother with an en banc review, but instead will take the Miller case straight to the Supreme Court.

SCOTUS already has its eye on another “assault weapons ban” case; this one in the Fourth Circuit. Shortly after the Bruen decision, the Supreme Court granted cert to four cases, vacating the appellate court decisions and remanding the cases back to the lower courts for further review in light of Bruen‘s findings. The California ban on “large capacity” magazines that was recently re-decided by Benitez was one of those cases, along another mag ban case out of New Jersey,Young v. Hawaii (a challenge to Hawaii’s ban on open carry), and Bianchi v. Brown, which is challenging Maryland’s “assault weapons” ban.

The Fourth Circuit heard oral arguments in Bianchi last December, and we’ve been waiting ever since to hear what the three-judge panel will do with the case. There’s a chance they could kick the lawsuit all the way back down to a trial court, though I doubt they would wait this long to do so. If the Fourth Circuit does conclude that Maryland’s ban violates the Constitution, though, then Maryland Attorney General Anthony Brown could ask for an en banc review by the Fourth Circuit in order to delay SCOTUS getting ahold of the case.


Anti-gunners are desperate to keep any “assault weapons” case away from the Supreme Court for as long as possible, pinning their hopes on a blue wave election next year that could allow them to pack the Court full of anti-gun justices that would undo not only Bruen, but Heller and McDonald as well. With two “assault weapons” cases now in appellate courts and other challenges coming up right behind them they won’t be able to stall for longbut for the time being California’s ban on some of the most popular rifles in the country will continue to be enforced to the detriment of Californians’ Second Amendment rights.

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