What arms are "common"?

Amicus brief challenging California rifle ban

|The Volokh Conspiracy |


The Ninth Circuit case Rupp v. Becerra challenges the California legislature's ban on a wide of variety of rifles. Last week, I co-authored an amicus brief explaining: 1. Supreme Court precedents state that common arms cannot be banned. 2. Lower courts have used several methodologies to decide whether a type of arm is "common"; under any methodology, the arms targeted by California plainly are common. Therefore, prohibition is unconstitutional.

The challenged ban: Beginning in 1989, the California legislature began outlawing firearms by dubbing them "assault weapons." In California and elsewhere, the definition of "assault weapon" has never been fixed or coherent, but is instead a shorthand for the largest number of firearms that gun prohibition advocates believe they can target in a given legislative session. Indeed, just about the only firearms that not been labeled "assault weapons" are actual "assault rifles," as defined by the U.S. Defense Intelligence Agency; these are certain battlefield rifles capable of automatic fire, such as the German Sturmgewehr, the Soviet AK-47, or the U.S. M-16. See Kopel, Defining "Assault Weapons," The Regulatory Review (Univ. of Pennsylvania) (Nov. 14, 2018).

Under the latest definition from California, all centerfire semiautomatic rifles are prohibited if they:

  •  Are on a list that bans guns by make and model, OR
  •  Have a fixed (nondetachable) magazine over 10 rounds, OR
  •  Use detachable magazines, and have one of the following features: a pistol grip
    that protrudes conspicuously beneath the action of the weapon; a forward pistol grip; a thumbhole stock; a folding or telescoping stock; or a "flash suppressor."

Every one of the forbidden features makes a rifle more accurate, and hence safer for all lawful purposes, including self-defense and hunting. Grips or thumbhole stocks improve the user's hold on the gun, so that it can be better controlled. Ajustable stocks allow users of different heights and arm lengths to adjust a rifle so that it fits them better, and hence is easier to control. A "flash suppressor" stabilizes the rifle's barrel, moderating the sine wave of energy that wobbles a barrel when gunpowder explodes. See Kopel, Rational Basis Analysis of 'Assault Weapon' Prohibition, 20 Journal of Contemporary Law 381 (1994).

The above is agreed by all sides. "[T]hat the rifles are more accurate and easier to
control is precisely why California has chosen to ban them." Rupp v. Becerra, 401
F. Supp.3d 978, 993 (C.D. Ca. 2019).

Case background: After the California legislature expanded the rifle ban in 2016, a challenge was brought in Rupp v. Becerra. Attorneys for the plaintiffs are Michel & Associates, the leading California firm on firearms law. The firm's case page for Rupp contains all the filings. In July 2019, the U.S. District Court for the Central District of California upheld the new ban, on cross motions for summary judgement. The appeal is currently being briefed in the Ninth Circuit.

The amicus brief is on behalf of several civil rights organizations: Firearms Policy Coalition, Firearms Policy Foundation, Second Amendment Foundation, Madison Society Foundation, California Gun Rights Foundation, and Independence Institute (where I work). Joseph Greenlee was the lead author, assisted by me and by Prof. George Mocsary (U. Wyo. law school).

The following summarizes the brief, and also includes some additional commentary.

Core Supreme Court rules: Heller specifically addressed "what types of weapons" the right to keep and bear arms protects. District of Columbia v. Heller, 554 U.S. 570, 624 (2008) (emphasis in original). The Court held that the right protects arms that are "typically possessed by law-abiding citizens for lawful purposes." Id. at 625. In other words, "the sorts of weapons protected were those 'in common use at the time.'" Id. at 627 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)).

Thus, "the pertinent Second Amendment inquiry is whether [the arms] are commonly possessed by law-abiding citizens for lawful purposes today." Caetano v. Massachusetts, 136 S. Ct. 1027, 1032 (2016) (Alito, J., concurring) (emphasis in original).

Unlike "common" arms, "dangerous and unusual weapons" may be prohibited, according to Heller. Any arm that is "common" cannot be "unusual." Therefore, such an arm cannot be "dangerous and unusual."

Metrics for "common use." Under Heller, all bearable arms are presumptively protected by the Second Amendment, and the state bears the burden of proving otherwise–such as by proving the arms to be "dangerous and unusual." In Heller, the Court did not need to elaborate on "common use," since handguns are obviously very common. For other arms, lower courts have used a variety of quantitative measures for "common use." Under any standard, the rifles banned in California are common.

Total number.  Some courts have looked at the total number of a particular of arms, and found the relevant number of such arms to be over a million, or several million, thus constituting (or, sometimes, constituting arguendo), common use.

Jurisdictions. In evaluating bans on stun guns, and other arms, courts have looked the number of jurisdictions where the arms type is lawful.

Percentage of total. Some courts have considered what percentage of the total U.S. firearms stock, or of recent firearms sales, is comprised of a particular arm. Constituting two or three percent of total stock has been held to be "in common use."

The California arms are in common use. Based on the district court record, Americans own between 9 and 15 million of the types of rifles banned in California. They are commonly owned by hunters, constitute a large percentage of total gun sales, and an even larger percentage of rifle sales. The guns are legal under federal law and in 44 states. (And since California's ban is so broad, some of the guns outlawed in California are legal in the few states that do prohibit some rifles.)

California's counter-arguments against common use.

Only California counts. Attorney General Becerra argues that the banned rifles are not common in California. But Heller did not make the common use test jurisdiction-specific. When Heller was decided in 2008, handguns might not have been common in the District of Columbia, because the District had banned handguns since 1976. Prohibition cannot be its own justification, and prohibition does not exempt the prohibiting jurisdiction from the common use test.

Suitability for self-defense. The district court agreed with General Becerra's argument that the banned rifles are not well-suited for self-defense. This is empirically false, as detailed in the testimony of Amy Swearer before the U.S. House Judiciary Committee last year. It is also irrelevant. As Justice Stevens explained, "[t]he Court struck down the District of Columbia's handgun ban not because of the utility of handguns for lawful self-defense, but rather because of their popularity for that purpose." McDonald v. City of Chicago, 561 U.S. at 890 n.33 (Stevens J., dissenting) (emphasis in original).

Indeed, the Heller briefing was laden with pro/con arguments about whether handguns were effective for self-defense, and whether long guns were adequate (or superior) substitutes. The Heller Court  did not attempt to adjudicate the controversy; instead, the Court simply pointed to the choices made by the American people. As McDonald summarized Heller, "we found that this right applies to handguns because they are the most preferred firearm in the nation to 'keep' and use for protection of one's home and family." McDonald, 561 U.S. at 767–68 (quotations, citations, and brackets omitted).

It is for the people, not the state, to decide which arms are preferred for self-defense. The individual is in an advantaged position to determine which arm best suits his or her self-defense needs.

In the First Amendment context, "the general rule" is "that the speaker and the audience, not the government, assess the value of the information presented." Edenfield v. Fane, 507 U.S. 761, 767 (1993). Just as the People have the right to determine the value of the information they exchange, they have the right to determine the defensive value of the arms they keep and bear.

The limitation on the choice is that the arm cannot be "dangerous and unusual," which the California rifles are not.

Frequency of defensive use. Accordingly to General Becerra, the banned rifles are not frequently used for self-defense by being fired. Unfired firearms are, however, protected by the Second Amendment just as unread books are protected by the First Amendment. If Second Amendment protection depended on the number of actual defensive uses, low-crime communities would have fewer rights because their arms
would be needed for self-defense less often. 

The Heller briefing had lots pro/con empirical evidence about how often handguns are used for self-defense–sometimes by shooting a violent attacker, and much more often by simply being displayed and deterring the incipient attack. None of data were relevant to the Heller Court. The Court simply deferred to Americans' widespread choice to keep handguns for defense.

The district court brushed off the evidence that the banned rifles are commonly used for recreational and competitive target shooting. To the district court, only defensive use was constitutionally important. Yet Heller and McDonald stated that the Second Amendment right is for "lawful purposes," not just for self-defense. Heller approvingly quoted the Supreme Court of Tennessee stating that "the right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes." Id. at 614 (quoting Andrews v. State, 50 Tenn. 165, 178 (1871)). Every federal circuit court of appeals to address the issue has found that the right protects other lawful purposes, not just self-defense. David B. Kopel & Joseph G.S. Greenlee, The Federal Circuits' Second Amendment Doctrines, 61 St. Louis U. L.J. 193, 204–07 (2017).

Dangerous and unusual. Nothing that is "in common use" can be "dangerous and unusual." According to the Heller Court, machine guns, such as the M-16 automatic rifle, can be prohibited, because they are dangerous and unusual. According to the district court in Rupp all the rifles banned in California are "essentially indistinguishable from M-16s." 

If you can't distinguish an M-16 from an old Winchester rifle with an aftermarket adjustable stock, you're not trying very hard.

Moreover, the U.S. Supreme has directly addressed guns that do look like the M-16 and which have some interchangeable parts. The automatic M-16 rifle (used by the US Army in Vietnam and thereafter) looks like the semiautomatic AR-15 rifle (introduced on the market in 1965). The Supreme Court found it easy to distinguish the two, based on their actual function. Specifically discussing the AR-15, the Court explained that such semiautomatic firearms, which fire "only one shot with each pull of the trigger," "traditionally have been widely accepted as lawful possessions." By contrast, fully automatic firearms—M-16s and the like—have the "quasi-suspect character we attributed to owning hand grenades." Staples v. United States, 511 U.S. 600, 603 n.1, 611–12 (1994).

Applying Heller to the California ban. Because handguns are common and thus constitutionally protected arms, "a complete prohibition of their use is invalid." Heller, 554 U.S. at 629. The Court applied no tiered scrutiny analysis, considered no social science evidence, analyzed no data or studies about the costs or benefits of the ban, and expressly rejected the intermediate scrutiny–like balancing test proposed by Justice Breyer's dissent. After all, the Supreme Court explained, "[w]e know of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach." Id. at 634.

Tiers of scrutiny (strict scrutiny, intermediate scrutiny, and the variants thereof) might sometimes be appropriate for judicial review of non-prohibitory gun regulations. Under Heller, bans on common arms are categorically unconstitutional, without need for use of the means-ends balancing tests of strict or intermediate scrutiny.

The Supreme Court has addressed restrictions on specific types of arms four times, in Heller (handguns), McDonald (handguns), Caetano (electric stun guns), and Miller (short-barreled shotguns). The Court has never once indicated that interest-balancing—such as a heightened scrutiny analysis—is appropriate. For arms prohibitions, the Court has twice expressly rejected such an approach. Heller, 554 U.S. at 628–35; McDonald, 561 U.S. at 785. Under direct and recent Supreme Court precedent, the California rifle ban is unconstitutional.