Pro-gun judge targeted by Newsom might have the Supreme Court on his side

Gun Rights

It’s not generally prudent to criticize the umpire before the start of a ballgame, or the judge who’s expected to consider the constitutionality of the new law you’re proposing. But Gov. Gavin Newsom didn’t mince words Wednesday in referring to U.S. District Judge Roger Benitez of San Diego, who is likely to have the first look at gun groups’ challenge to a bill that would restrict the carrying of concealed firearms in public.

“Look forward toward Judge Benitez’s decision — it’s already been written,” Newsom said at a news conference announcing the legislation, SB2 — portraying the judge as not only pro-gun but as so one-sided that he’s made up his mind and crafted his ruling long before the issue reaches his court.

He also said Benitez was “likely to overturn our assault weapons ban,” a law already in Benitez’s court that prohibits sale of guns with magazines that can hold more than 10 cartridges. And the governor referred to Benitez and Judge Ryan Nelson, author of a federal appeals court ruling last year that briefly overturned California’s ban on selling semiautomatic rifles to anyone under 21, as “ideologues.”

It’s not the first time Newsom has attacked Benitez, a veteran jurist to whom the National Rifle Association and like-minded organizations try to steer their suits against the state’s gun laws. After Benitez first struck down the assault-weapons law in June 2021, the governor described him as “a stone-cold ideologue… a wholly owned subsidiary of the gun lobby.”

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But that was when Newsom and other gun-control advocates could be at least somewhat confident that a higher court would reinstate the California laws, as the Ninth Circuit Court of Appeals did to the assault-weapons ban while the case remains on appeal. The appeals court has overruled some of Benitez’sother decisions, including one that banned possession of guns with large-capacity magazines — part of a voter-approved 2016 ballot measure that Newsom sponsored when he was lieutenant governor.

The outlook changed last June when the Supreme Court overturned a New York law requiring individuals to show a special need for self-defense in order to carry concealed firearms outside the home. The 6-3 ruling also applied to similar laws in California and other states — and in the majority opinion, Justice Clarence Thomas said any restrictions on gun possession would be found unconstitutional unless the government could show that they were “consistent with this nation’s historical tradition of firearms regulation,” dating back to the nation’s founding. Even if California’s restrictions survived in the lower courts, the high court could then consider them under its new standard.

Guns with large-capacity magazines and semiautomatic weapons, which can be fired repeatedly without reloading, did not exist in the 1790s. It’s less clear whether the government allowed private citizens, apart from the “well-regulated militia” mentioned in the Constitution’s Second Amendment, to carry firearms in public.

Attorney General Rob Bonta insisted that SB2 — which would limit the public places where concealed weapons could be carried, prohibit anyone under 21 from carrying them and set new licensing and training standards — had been “designed to comply with that the Supreme Court’s dictates and direction.”

But Stanford law professor John Donohue, who has studied firearms issues and is generally supportive of gun regulation, said the prospects were, at best, uncertain.

“It is certainly a perilous moment for those who favor wise regulation designed to address the growing problem of mass shootings,” Donohue told The Chronicle. “Right now, the gun lobby is challenging every state and municipality that restricts assault weapons and magazine size, so these demonstrably valuable tools that further public safety are very much under attack, with the gun lobby hoping the Supreme Court will eliminate these laws.

“On the other hand, the conservative majority on the Supreme Court may appreciate the reality of the modern — and sadly more common — problem of mass shootings and not try to thwart the democratic will of the people in the states that have tried to address this threat.”

The next word will probably come from Benitez, who is already reconsidering California’s bans on assault weapons and its voter-approved requirement for background checks on purchasers of ammunition. The Ninth Circuit Court had allowed the state to enforce those laws, but returned them to Benitez for reconsideration under the Supreme Court’s new standards.

Benitez, 72, was born in Cuba and came to the United States as a child. He attended college and law school in San Diego and practiced law for nine years before Gov. George Deukmejian appointed him to the Imperial County Superior Court in 1997. Four years later, he was chosen by federal judges in San Diego to be a magistrate in their courts, hearing mostly pretrial proceedings, then was named to a new federal judgeship by President George W. Bush in 2004 at the recommendation of a committee led by California’s two Democratic senators, Dianne Feinstein and Barbara Boxer.

The American Bar Association rated Benitez as unqualified, largely because of what foes described as his unfavorable temperament. But Feinstein — who 10 years earlier had sponsored a nationwide federal ban on large-capacity, semiautomatic weapons, which Congress allowed to expire in 2004 — praised Benitez’s “superb demeanor, intelligence, pragmatism and fairness,” and helped him win Senate confirmation on a 98-1 vote.

Benitez’s first significant gun ruling was in 2017, when he blocked enforcement of the ban on possessing guns with high-capacity magazines. Since then, the NRA and its allies have filed their challenges to state laws in the San Diego federal court, and Benitez has agreed to hear them as cases “related” to his 2017 decision.

His rulings have been noteworthy for their language as well as their outcome.

“Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle,” Benitez wrote in the opening lines of his 2021 ruling overturning the state’s ban on large-capacity semiautomatic rifles. Later, he compared the rifles — used in half of the nation’s 10 deadliest mass shootings — to seat belts and smoke detectors, saying both were essential in emergencies.

In his April 2020 decision overturning voter-approved background checks for buyers of ammunition, Benitez observed, “Criminals, terrorists and tyrants don’t do background checks.”

“I don’t believe this judge would uphold a single gun law anywhere,” Robyn Thomas, then-executive director of the San Francisco-based Gifford Law Center to Prevent Gun Violence, said after Benitez’s 2021 ruling.

Gun advocates said the criticisms were unfounded.

“The judge is a fair, thorough and thoughtful jurist who holds the state to its burden of proof,” C.D. Michel, attorney for the California Rifle and Pistol Association, the NRA’s state affiliate, said Wednesday. “As a refugee from the Cuban revolution, he has seen tyranny up close and personal.”

Michel said the Supreme Court’s new standard “requires the state to present evidence, not platitudes or press conferences, to justify the infringement of the Second Amendment’s fundamental protections. That’s what the governor resents.”

Another advocacy group, the Firearms Policy Coalition, called Newsom “just another opportunistic authoritarian politician with a hair stylist.” In the upcoming cases, the group said, “he will lose and he knows it.”

Bob Egelko is a San Francisco Chronicle staff writer. Email: Twitter: @BobEgelko

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