What is Judge Roger Benitez Waiting For?

BY Herschel Smith
1 year, 2 months ago

If he does what Washington Gun Law suspects he’s going to do, i.e., drop his decision the day of the signing of the AWB in Washington, then the good folks in the state of Washington, if there are any left, will immediately take the ban to federal court.  With the Heller “in common use” test, they will surely win – or otherwise, have an unconstitutional decision to appeal to the Ninth circuit.

As it is, if Judge Benetiz made his ruling before the Washington bill becomes law, the ninth circuit could just leave this along, let it apply to California, and then the folks in Washington are on their on.  Or, they could take the Benitez ruling up, make an unconstitutional decision, and then get slapped down by the supreme court.

If Benitez waits until the bill gets signed into law, he is sending a message to the folks in Washington.  Take it to court.  That way, when some progressive judge turns it away, the ninth circuit has split district court rulings to contend with and must take the cases to reconcile them.  They have to find that the AWB is unconstitutional under Heller, or else they get slapped down by the supreme court.

There is also the optics to consider – a Benitez ruling on the very day the controllers announce a new AWB in one of the most progressive states in the nation, all in the ninth cicruit.

There is no leaving this in the states – this will get dealt with one way or the other.  And remember boys and girls, if the AR-15 is such bad jiu jiu to the controllers, make sure you keep yours.  The best way to do that is to have one (or more) to begin with.

Judge Benitez is a master-level, or even galaxy-level, troller.  And quite a good judge too. And notice the drama with which this is all playing out. I find it both amusing and interesting. Then again, I don’t live in the People’s Republic of California where this all must be taken more seriously.


  1. On April 16, 2023 at 11:20 pm, Dan said:

    There’s always the outside chance that the Benitez suffers a “tragic accident” before any of this can happen. Stranger things have happened lately.

  2. On April 17, 2023 at 12:24 am, Steve Ramsey said:

    There are plenty of us left in Washington. We will fight not run.

    For decades now, abandoned by the NRA, and fighting millionaires and billionaires with out hard earn money, $20 at a time, the odds were always against us.

    Now, help is on the way. NSSF and GOA with a few buck and some winning lawyers in tow. We are stacking on our local efforts. Expect five suits to be filed day of signing.

    New York didn’t give up. Nor California or Illinois. Nor Dick Heller. We won’t either. Be thankful, the torrent of pro gun decisions including Bruen are largely due to the efforts of the long suffering and left for dead rear guard.

  3. On April 17, 2023 at 10:09 pm, X said:

    Let’s talk about this “common use” nonsense for a moment. The “common use” standard doesn’t come from Heller, it comes from U.S. v. Miller upholding the NFA. Scalia cited it because he didn’t want to strike down the NFA.

    Well, that was a mistake. The Second Amendment says nothing about “common use.” Worse, the “common use” standard plays into the hands of the gun-banners who claim that the 2A only protects muskets from the 1790s.

    “Common use” is a bogus standard. If a gun is banned, it cannot be in common use; since it is not in common use, therefore it may be banned. Completely circular reasoning.

    “Common use” is also subjective. In a District Court decision upholding the Satanic NY SAFE Act almost ten years ago, Judge Skretny ruled that since there were 300 million guns in the U.S. and only 30 million of them were “assault weapons,” “assault weapons” could be banned because being only 10% of firearms made them uncommon.

    The 7mm Shooting Times Westerner is uncommon compared to the .308; can it therefore be banned?

    There is no need to depart from the plain language of the 2A and play along with the sophisms of the gun banners. “The right of the people to Keep and bear Arms, shall not be infringed.”

  4. On April 17, 2023 at 10:24 pm, Herschel Smith said:

    You didn’t see this (linked below), where Mark addresses that very issue. Like you, I want it all, right now. That’s not the world we live in. What I’m doing here is trying to keep you abreast of what to expect, how, when and why. I’m not trying to preach a sermon here, esp., not to the choir. We don’t believe dissimilar things. Why would we keep saying the same things over and over to each other? This is current events in the current world. Do try to understand what’s happening.


  5. On April 18, 2023 at 7:54 am, PGF said:

    Yeah, “common use” is terrible. Allowing it to become ensconced in case law will turn out to be a huge mistake. Bruen is the standard that must be fought for.

    Common use sure will keep the lawyers and courts in business, though.

  6. On April 18, 2023 at 8:31 am, Herschel Smith said:

    Let’s do this again.

    Heller dealt with the “keep” part of RKBA. Bruen dealt with the “bear” part of RKBA. The two cases dealt with two completely different things for different reasons. They are narrowly tailored to address the question(s) before the court at the time. Heller dealt with gun ban cases. Bruen dealt with gun carry cases.

  7. On April 18, 2023 at 12:46 pm, Longbow said:

    Re: Common Use,

    In Miller, The Court said, ” In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

    Allow me to paraphrase… “No one has presented us with any argument that a short barreled shotgun is a weapon of military usefulness, therefor we cannot say the 2A protects the right to own such a weapon.”

    Do you get it? They were saying the 2A protects the right to own certain weapons! Military grade weapons ARE the weapons SPECIFICALLY protected by the 2A! A sawed off shotgun may not be a militia grade weapon but your M16 most certainly is! Your M240B most certainly is! Your BAR that Great Grand Pappy brought back from the war, certainly is!

    The Court’s dicta say that in the founding era, men were expected to show up when summoned, bearing arms provided by themselves, and of they type in common use at the time.

    What weapons would a militia unit have been required to employ in the founding era? A muzzle loading musket, probably of .75 caliber, and sixty rounds power and ball, bayonet, etc… maybe? Would that have been the common use militia kit at that time? Would that have been exactly the type of kit, equipment, and weaponry the founders intended to protect, or the right to possess which they intended to protect, at the time the 2A was adopted?

    Would the founders have envisioned the Militia to keep and employ weapons of the type in common use in any era in the future, to include advancements in military technology and equipment? Ya think they were too stupid for that?

    Jeepers, what type of military grade weaponry would the same militiaman be required to bring to duty with him when summoned today?

    A sawed off shotgun? Probably.

    An M16? Most certainly.

    An M240B? One would hope so!

    Suppressors? Are they of military usefulness? You betcha.

    The Supreme Court made itself clear in Miller The Second Amendment protects the right to own certain weapons, military grade weapons, of the type in common (read ‘typical’) use.

    Humor me with one last analogy. Lets say your local Sheriff needed to raise a force to defend YOUR County from roving bandits, invading drug cartel gangsters, the Third Mongolian Horde (pick your scenario). Do you think he would prefer you to show up bearing a standard kit you used in the infantry in Iraq and Afghanistan? Or your $3000 Dollar Weatherby hunting rifle chambered in .375 Wby Mag (and twenty rounds of ammo, which is all you could afford)?

    Common use? How about common sense?

  8. On April 18, 2023 at 1:05 pm, Herschel Smith said:


    On which we all agree. Again … and again … and again … that’s not currently the protocol we live under. Try arguing that to a court if you’re found with an unregistered machine gun and see what happens.

    Mark Smith’s point in his videos is that we must craft arguments that will fly in court in order to preserve where we are. Only after that will it be possible to roll the rest of it back.

    Incrementalism. Our side absolutely MUST learn this.

    It does NO GOOD to argue this point among people who agree with you. I’m explaining why the legal briefs read the way they do.

    I can certainly stop and never again post anything about what’s going on and why it’s going on the way it is in the courts we follow — if no one thinks that any of this is newsworthy or worthy of commentary and explanation.

    Sometimes I wonder if any of this is worth anything anyway given the time it takes to do it.

  9. On April 18, 2023 at 1:41 pm, Longbow said:


    “Incrementalism. Our side absolutely MUST learn this.”

    Agreed. Point made and taken.

    I have been saying for decades that the entire NFA is a house of cards based on a false (unlawful) premise. Pull one card, such as the SBR/pistol brace thing, and the whole thing begins to crumble.

    Principles must guide our actions, even the incremental approach.

    Be well and God bless,

    also, keep up the good work!

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This article is filed under the category(s) AR-15s and was published April 16th, 2023 by Herschel Smith.

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