Once again I find myself encapsulated by a long court decision handed down by Hon. Judge Benitez, but his I don’t mind reading.  

Today Hon. Judge Benitez has once again ruled a highly restrictive California firearms law unconstitutional in the case Miller v. Bonta.

Before you get too excited, Judge Benitez placed a 10-day stay on this order before it will take effect to allow the state time to appeal. This is another long awaited ruling for California gun owners, much like the California Magazine Ban we recently covered.

This article will not be a detailed rundown of the glorious 79 page decision, there is plenty of that on YouTube already. Rather today we will cover some points made in the ruling that speaks to larger issues with this and similar legislation in light or Bruen, and reasons this decision may prevent a Federal assault weapons ban.

CA Assault Weapons Ban History & Context

Since 1989 California has had some sort of assault weapons ban in place, outside of those placed by the Federal government since the passage of the Roberti-Roos Assault Weapons Control Act. Under this, California stipulated the following:

California Penal Code § 30515(a), a semi-automatic rifle is labeled an “assault weapon” if it is one of three principal types. The first type is a centerfire rifle that does not have a fixed magazine and has one of the following prohibiting features: a pistol grip that protrudes conspicuously beneath the action of the rifle, a thumbhole stock, folding or telescoping stock, a grenade or flare launcher, a flash suppressor, or a forward pistol grip. The second type is a centerfire rifle that has a fixed magazine able to hold more than 10 rounds. The third type is a centerfire rifle that has an overall length of less than thirty inches. Cal. Penal Code § 30515(a)(1)–(3). The statute also deems a semiautomatic pistol an “assault weapon” if it has a threaded barrel (or some other features not detailed here). Cal. Penal Code § 30515(a)(4)–(5). A semiautomatic shotgun is deemed an “assault weapon” if it has a telescoping stock and a pistol grip or a revolving cylinder or a removable magazine. Cal. Penal Code § 30515(a)(6)–(8). Antique firearms and certain pistols designed expressly for Olympic events are exempted.

 –Miller v. Bonta, 13-14 (S.D. Cal. 2023)

Existing owners of these weapons as of the date of the ban were required to register them with the state. However California closed the window to register these as assault weapons, meaning they cannot be purchased, transferred, etc, and anyone who did not register them in time is a felon, with no recourse. I particularly enjoyed that the definition of assault pistols included “Or some other feature not detailed here.” It makes it particularly difficult for citizens who wish to comply, and easy to prosecute arbitrarily.

Methods Used to Circumvent the Ban

As Americans, we are an industrious people who don’t like regulations, therefore several ways around this particular ban have been used.

Bullet button

A previous method to allow Californians to have these rifles was by including a bullet button. This was a unique magazine release that required a tool, or a bullet to fit into the small opening and release the magazine. After years of popularity, California included this feature on the assault weapons list.

Fixed Magazine

The fixed magazine option allows the user to have certain features on the assault weapons because the firearm is now “Incapable of accepting detachable magazines.” Common solutions included using a specialized magazine like those sold by CompMag, which are held in place via screw tension and can only be removed by loosening the screw when the rifle was disassembled.

Other solutions like the Hellfighter Mod Kit from Juggernaut Tactical, which incorporates a quick way to separate the upper and lower received allowing the magazine to drop free became popular.

Keep in mind, any fixed magazine that holds over 10 rounds is still illegal.


Other owners elected to make their rifle featureless by removing the features included in the ban. This meant using a fixed magazine, removing the flash hider for a muzzle break (Which had to be pinned and welded to the barrel), removing any forward grips and replacing the pistol grip with stubs, “Shark fin” grips, or other popular options.

Excerpts From Miller v. Bonta October 2023 Decision

Here are a few interesting snippets that will influence the ultimate decision if this is appealed.

As of 19 October 2023 Hon. Judge Benitez has once again ruled the ban unconstitutional, but this time using the Bruen decision. The Buren decision puts the burden of proof on the state of California to show the law is consistent with the Constitution through text, history, and tradition. As Hon. Judge Benitez stated many times throughout his ruling there is none of the three. Let’s break this down using a few selected examples.

“This Court has previously determined that the State’s ban on modern semi automatics has no historical pedigree. Prior to the 1990’s, there was no national history of banning weapons because they were equipped with furniture like pistol grips, collapsible stocks, flash hiders, flare launchers, or threaded barrels. In fact, prior to California’s 1989 ban, so-called “assault weapons” were lawfully manufactured, acquired, and possessed throughout the United States.”- Miller v. Bonta, 16 (S.D. Cal. 2023)

Supporting points:

“The State went far beyond. The State produced a list of 316 laws covering 550 years—from 1383 to 1933. Many of the entries are not relevant because they came much earlier or later than the most significant time period of 1791–1868. The first fourteen laws pre-date the Second Amendment. At the other end, the last 225 laws post-date the adoption of the Fourteenth Amendment.” –Miller v. Bonta, 22 (S.D. Cal. 2023).

The “Significant time period” was part of the Bruen decision, where Justices stated this period of time speaks most closely to the Nation’s Founders intentions. It is notable that California cited laws going back as far as 1383 because the Supreme Court also directed “British sources pre-dating the Constitution are not particularly instructive because the American Revolution was a rejection of British rule”. –Miller v. Bonta, 21 (S.D. Cal. 2023).

Further, Hon. Judge Benitez noted several other laws California had cited as historical tradition of assault rifle bans:

History and Tridition

  1. “The biggest miss is that three of the four laws the State cites for a tradition of firearm regulation did not ban possession of a firearm. Law was an 1866 New York statute banning a slungshot, billy, sandclub, dirk, dagger, sword cane…” –Miller v. Bonta, 36 (S.D. Cal. 2023).
  2. Montana Territory’s 1885 amendment to § 62: No one shall brandish a deadly weapon at another in a threatening manner.
  3. Trap guns (Once again, as this was also cited for restricting standard capacity magazines)
  4. Gun powder storage (Which has previously been rejected as a viable argument during Keller)
  5. “Among the State’s list of firearm laws are a number of statutes based on a person’s race, color, or slave status. The State agrees that these old reprehensible laws are morally repugnant and would obviously be unconstitutional today.” –Miller v. Bonta, 55 (S.D. Cal. 2023).

Hon. Judge Benitez stated these were irrelevant, misleading, and spoke to the larger issue of the State not meeting its burden of proof. Further, “Remember that Bruen discounted territorial laws.” –Miller v. Bonta, 37 (S.D. Cal. 2023).


Hon. Judge Benitez wraps this decision up in an intricately supported web that speaks to the point that there is little to no viable text, history, or tradition that supports California’s law against a rifle having specific features. He also states that many of the supporting laws California put forward were either irrelevant, misleading, poorly applied, or invalid upon investigation. Further, he cited the reason the stay is only for 10 days is because California has previously had two years to find text history, and tradition for this ban, and cited 316 laws, which the Judge ripped apart.

I don’t believe the state was simply lazy in their efforts to provide examples, it is more likely examples of similar bans do not exist prior to the NFA. It appears the state threw in anything that could remotely resemble similarities in the hopes of extending the legal process. My reasons for saying this are citing the 1784 N.Y. law regarding gun powder storage, which the Supreme Court has previously deemed inapplicable for firearms cases, as well as citing “statutes based on a person’s race, color, or slave status.”-Miller v. Bonta, 55 (S.D. Cal. 2023).

It speaks to the desperate attempts on someone hellbent to defend a losing argument.

While this case will most likely be appealed its ramifications go significantly farther than California or the 9th Circuit. At the Federal level, law makers and executives have promised an ‘Assault weapons ban” for some time. This decision has the potential to render any such laws unconstitutional upon arrival.

“The Supreme Court carefully uses the phrase “dangerous and unusual arms,” while the State, throughout its briefing, refers to [AR15s as] “dangerous [or] unusual arms.” That the State would advocate such a position is disheartening.” –Miller v. Bonta, 9 (S.D. Cal. 2023).

2 thoughts on “California Assault Weapons Ban Struck down, but Stayed

  1. Dr. B says:

    The cases in which the Hon. Benitez presented wherein the AR15 was used for self-defense and in the protection of life, limb, and property were all outstanding examples of why the citizenry must have access to these tools. The inherent media bias to the reporting of these firearms solely for crime and violence distracts the general public from the thousands if not millions of life-preserving uses of such weapons.

  2. Timothy Nye says:

    Two points about the timing of this this decision are especially relevant and place tremendous pressure on the Democrat justices on the en banc panel who stayed Duncan last month from doing the same with Miller:
    1. The timing of the Miller decisions release following the Hamas attack and slaughter of unarmed Israeli civilians; and,
    2. The ability of Bermudez to draw from the Duncan en banc stay to emphasize the unconstitutionality of the balancing test utilized by the Court of Appeal in that case.
    If Duncan was a big middle finger to the Supreme Court; it just got very difficult to do it a second time. The Hamas attack may have led Bermudez to release the Miller decision when he did.

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