The Second Amendment prohibits the government from banning bearable arms that are typically possessed by law-abiding, responsible citizens for lawful purposes. California bans a class of firearms that are typically possessed by millions of Americans for lawful purposes, including self-defense, hunting, and target shooting. Is California’s ban unconstitutional under the Second Amendment?
— Appellants’ Opening Brief
The goal of the appellee(bad guys) is to get the Ninth Circuit Court to decide that case at hand is not a violation of a “fundamental” right but instead something less. Any violation of a fundamental right triggers strict scrutiny. Because of this the state, the appellee, tries very hard to hand wave away anything that could be a violation of a fundamental right.
California regulates the possession and transfer of assault rifles—a category of military-style weapons marketed to civilians that are unusually dangerous and not well suited for civilian self-defense. Assault rifles are “virtually indistinguishable in practical effect from machine guns.” ER 14. They “fire almost as rapidly”; inflict “greater and more complex damage”; and have enhanced “capability for lethality—more wounds, more serious, in more victims.” They are, like the M-16 machinegun, “dangerous and unusual” weapons of modern warfare. Assault rifles are also not a type of weapon traditionally used for lawful, self-defense purposes. California’s restrictions therefore do not burden conduct protected by the Second Amendment. In any event, the State’s restrictions pass the appropriate level of scrutiny—intermediate scrutiny—because they reasonably fit the State’s important public-safety interest in reducing the number of gun deaths and injuries.
— Answering Brief of Appellee-Defendant Xavier Becerra, California Attorney General
The state is playing an interesting game here. The text uses the term “assault rifle”, which is well defined and does not encompass rifles like the AR-15. They go on to say that they are “virtually indistinguishable” from machine guns. They rely on expert testimony to reach “virtually indistinguishable”, but the kicker here is that they are letting the reader insert “AR-15” in to the paragraph by using “assault rifle” and “like the M-16 machinegun[sic]”. Many of the rifles banned have very little, if anything, in common with the M-16/AR-15.
In Heller, Justice Scalia describes the carve out for the states to continue to infringe:
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 2816 – 2817.
— District of Columbia v. Heller
Double emphasis added.
This language of “dangerous and unusual weapons” is what the state is using to justify its ban on scary semi-automatic rifles. By ignoring the “and” and turning it into an “or” they are now in a position of arguing that something is unusually dangerous. Being unusually dangerous the ban should fall within the carve out given in Heller.
The issue is that the Supreme Court has already defined, in 2016, what the lower limit on “common weapons”.
The more relevant statistic is that “[h]undreds of thousands of Tasers and stun guns have been sold to private citizens,” who it appears may lawfully possess them in 45 States. People v. Yanna, 297 Mich.App. 137, 144, 824 N.W.2d 241, 245 (2012) (holding Michigan stun gun ban unconstitutional); see Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights To Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199, 244 (2009) (citing stun gun bans in seven States); Wis. Stat. § 941.295 (Supp. 2015) (amended Wisconsin law permitting stun gun possession); see also Brief in Opposition 11 (acknowledging that “approximately 200,000 civilians owned stun guns” as of 2009). While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts’ categorical ban of such weapons therefore violates the Second Amendment
— Caetano v. Massachusetts, 136 S. Ct. 1027 – Supreme Court 2016
“hundreds of thousands” has at its lower limit 200,000. This means that we know, from Caetano that if there are more than 200,000 arms of that class in common use for lawful purposes it is not an “unusual weapon”. If it is not “unusual” then no matter how dangerous the state claims it is, it is still covered within the scope of the Second Amendment.
One of the things that the Supreme Court has said is that the state cannot claim that something is unusual if they have banned that item. If the state bans “blue marbles” and somebody goes to court to claim that “blue marbles are common” the state is not allowed to argue that they are not because the state has created that shortage.
In Rupp v. Bonta the state argues that all of the Circuit Courts that have heard AWB cases have agreed that AWB are constitutional. What they leave out is that only those states that are infringing passed AWBs and all of those are in circuits that are pro infringements.
“Four out of five dentists [surveyed] agree that…” Ummm, how many were surveyed? 5? 10? How were they selected. Consensus does not make it right.
Here is the question presented to the court as the state wants it to be:
Whether assault rifles fall outside the protection of the Second Amendment because they are virtually identical to the M-16 rifle, where the Supreme Court has confirmed that “M-16 rifles and the like” may be banned.
Assuming assault rifles come under the scope of the Second Amendment, whether challenged law withstands intermediate scrutiny by restricting a particularly dangerous subset of semiautomatic rifles with militaristic features that are used disproportionately in mass shootings and murders of police officers, thereby furthering California’s interest in public safety.
— Bonta, “Answering Brief”
There is a nasty type of question where the question has an assumption of fact within. The classic version of this is “When did you stop beating your wife?” The correct answer is “I never beat my wife.” To many people fall for the linguistic trap and answer with a time. “Over 10 years ago!” “So you admit that you beat your wife!?!” “huh?”
In the case of the state’s restatement of The Question, they put this little assumption of fact: The appropriate level of scrutiny is intermediate scrutiny.
They state has deftly sidestepped the important question of “Is this a violation of a fundamental right triggering strict scrutiny?” and if it is not a violation of a fundamental right “What is the correct level of scrutiny to apply?”
The state has, of course, iterated their claim/opinion that AR-15s are virtually identical to M-16s as reason to exclude them from the scope of the Second Amendment.
We have been arguing for years that trying to define “assault rifle” and “assault weapon” based on cosmetic differences is moronic. The gun infringers have ignored that argument.
After the AWCA was enacted, some gun manufacturers began to produce weapons that were “substantially similar to weapons on the prohibited list but differed in some insignificant way, perhaps only the name of the weapon, thereby defeating the intent of the ban.” ER 4198 (S.B. 880 Rpt.); Silveira, 312 F.3d at 1058 n.5. To address the proliferation of these “copycat” weapons, the Legislature enacted Senate Bill 23 (S.B. 23), 1999 Cal. Stat. ch. 129, to amend the AWCA’s definition of assault weapons to include weapons with certain militaristic features similar to those listed as prohibited Category 1 and 2 weapons. ER 4415-50. In amending the AWCA, the Legislature sought “to broaden its coverage and to render it more flexible in response to technological developments in the manufacture of semi-automatic weapons.” Silveira, 312 F.3d at 1058; see ER 4415
— Id.
Here the state is arguing that because gun manufacturers made “insignificant” changes to the cosmetic differences to the weapon they needed to “improve” the AWCA. They are admitting here that the militaristic features of a rifle are insignificant.
The district court assessed the constitutionality of the AWCA under this Court’s “two-step inquiry to Second Amendment challenges”: (1) does the challenged regulation burden conduct protected by the Second Amendment; and (2) if so, does it satisfy the applicable level of scrutiny. ER 7. At the first step, the district court determined that assault rifles are not protected by the Second Amendment because they are “virtually indistinguishable from M-16s,” and can be banned as “dangerous and unusual weapons.” ER 13, 16. The district court reasoned, “[i]t is undisputed that the M-16 is outside the scope of the Second Amendment—thus, if a weapon is essentially the same as the M-16, it is not protected by the Second Amendment merely because gun manufacturers have given it a different model number and dubbed it a ‘civilian rifle.’” ER 13-14. The district court concluded that the sole difference between the M-16 and assault rifles—that the M-16 allows the shooter to fire in either semiautomatic or automatic mode, while assault rifles fire only in semiautomatic mode—“is a distinction without a difference.” Id. at 16. The district court noted that other circuit courts have likewise determined that a semiautomatic rifle’s rate of fire is almost the same as that of the M-16. Id. (citing Kolbe, 849 F.3d at 136 (finding that the rates of fire of automatic and semiautomatic rifles “are nearly identical”) and Heller II, 670 F.3d at 1263 (“[S]emi-automatics still fire almost as rapidly as automatics.”)). Indeed, in many situations, “the semi-automatic fire of an AR-15 is more accurate and lethal than the automatic fire of an M16.” Id. at 15 (citing Kolbe, 849 F.3d at 136).
— Id.
The state argues that banning an “assault rifle” is allowed because M-16s can be banned. Of interest is the fact that M-16s are not banned in most states. Some states have a ban on all NFA weapons, but most states do not.
The district court then determined the Act withstands intermediate scrutiny because the State provided “ample evidence to establish a reasonable fit between the AWCA and California’s public safety interest.” ER 20. Specifically, the court cited evidence that “in the public mass shootings where an assault rifle was utilized, there were twice as many fatalities (12 with assault rifles, 6 without any assault weapons), and six times as many injuries (30 with and 5 without).” Id. at 20-21. The increased casualty rate is likely due, at least in part, to the fact that “[g]unshot wounds from assault rifles, such as AR-15s and AK-47s, tend to be higher in complexity with higher complication rates than such injuries from non-assault weapons, including the likelihood of morbidity in patients that present injuries from assault rifles.” Id. at 21 (quoting ER 3188 (Expert Rpt.of Dr. Christopher B. Colwell)). …
— Id.
Notice how easy it is for the courts to find a “reasonable fit” and “public safety interest.” This is how come “scrutiny” tests are so bad in a second amendment context.
The Supreme Court tells us that where there is a ban, as opposed to a mere regulation, on arms “ ‘in common use at the time’ for lawful purposes like self-defense,” there is no need to apply any scrutiny—the restriction fails per se. District of Columbia v. Heller, 554 U.S. 570, 627; see also id. at 624-25; Caetano v. Massachusetts, 136 S. Ct. 1027, 1027-28 (2016). This Court also asks whether an arm has historically been restricted; if it has, it may fall outside the Second Amendment’s scope. Fyock v. City of Sunnyvale, 779 F.3d 991, 996-97 (9th Cir. 2015). The Banned Rifles are in exceptionally common use for lawful purposes, including self-defense. And the State puts forth no argument that the Banned Rifles have historically been restricted. The AWCA’s ban on them is thus necessarily unconstitutional.
— Appellants’ Reply Brief
Here is where the court gets to decide. If they decided that the proper methodology is means-end this case will be found for the state. If they decided that the proper path is “in common use” then the ban will fail and result in a win for us.
This is how all of the infringing courts managed to upload infringements. They just claimed that it wasn’t too much of an infringement so all the state had to do was show a reasonable fit to public safety to prevail.
While this case was going on, the case of Duncan v. Bonta was also happening. Judge Benitez heard that case and ruled in favor of the Constitution. This resulted in “freedom week” out in California when thousands (millions?) of magazines were ordered and delivered while the magazine ban was enjoined. The state appealed Duncan to the Ninth Circuit Court, where in a rare case of fidelity to the second amendment the 3 judge panel found for the plaintiffs (good guys).
One of the judges on that panel wrote a concurring(?) opinion which said that as soon as the Ninth Circuit Court heard the case en banc they would rule against the plaintiffs and gave the reasons. He was poking fun at how anti-gun the Ninth Circuit Court is.
On 2020-09-10 the plaintiffs filed a notice with the court pointing out that the three judge panel had just made a huge decision that was favorable to the plaintiffs. The biggest point in favor of the plaintiffs was that the panel choose to use strict scrutiny instead of intermediate. Under strict scrutiny the plaintiffs prevailed.
This lead to the following:
In response to the Court’s order, dated December 6, 2021, defendant-appellee Rob Bonta, in his official capacity as the Attorney General of the Sate of California, and plaintiffs-appellants Steven Rupp, et al. write to inform the Court that the parties, having met and conferred, agree that this appeal should be held in further abeyance pending issuance of the U.S. Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen (NYSRPA), No. 20-843. While NYSRPA concerns the constitutionality under the Second Amendment of a different type of law than that challenged in this case, it is possible that the Supreme Court’s decision in NYSRPA could impact resolution of this appeal.
For this reason, the parties agree with the panel’s unanimous view that a continued abeyance pending a decision in NYSRPA would be in the interests of judicial economy. If the Court continues the abeyance, the parties respectfully request an opportunity to provide additional briefing after the Supreme Court’s disposition in NYSRPA.
— Joint Letter regarding Abeyance Pending Resolution of New York State Rifle & Pistol Association v. Bruen
The court granted the abeyance which put this case on hold until after Bruen was decided.
On 2022-06-28 the Ninth Circuit Court sent the case back down to the District Court. This is another example of the Ninth Circuit court attempting to draw out this and other second amendment cases post Bruen.
Bumatay, J., dissenting:
For over a decade, our court has improperly interest-balanced our way around the Second Amendment. The Supreme Court has had enough of it. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, No. 20-843, — S. Ct. —-, 2022 WL 2251305 (U.S. June 23, 2022). With a clear legal standard now in hand, we should have ordered supplemental briefing to further this case along. Instead, we instinctively kick the can back to the district court. And we do so without the benefit of the parties’ position on whether our three-judge panel could have directly resolved this case based on Bruen. A remand here may just prolong the inevitable as we will eventually have to decide this case—adding unnecessary delays and expenses for the parties. At the very least, we should have given the parties a chance to let us know where they stand on the question of remand. I thus respectfully dissent from vacating and remanding this matter.
…and looking forward to Part 3!
An excellent read, thank you for the work that went into it