2nd Amendment

California's 'Assault Weapon' Ban Unconstitutional, Says Federal Judge

Victory for the Second Amendment in Miller v. Bonta. Will the Biden administration pay attention?


California's 32-year-old ban on a certain class of semi-automatic rifles colloquially known as "assault weapons" was declared unconstitutional yesterday in the case of Miller v. Bonta. At the same time, the Biden administration wants to impose similar restrictions federally.

The decision does not instantly nullify the enforcement of the law. "Because this case involves serious questions going to the merits, a temporary stay is in the public interest," concludes the decision, which was penned by U.S. District Judge Roger T. Benitez for the Southern District of California. The injunction that would force California to stop enforcing its ban is therefore "stayed for 30 days during which time the Attorney General may appeal and seek a stay from the Court of Appeals."

The state's attorney general, Rob Bonta, has already announced his intention to appeal—and the 9th Circuit, which will consider that appeal, is not reliably supportive of the Second Amendment. But Benitez's reasoning remains for other jurists to draw on in other cases, especially if Biden continues his interest in banning certain kinds of rifles.

In the first paragraph of his 94-page opinion, Judge Benitez lays out the heart of his reasoning colloquially: "the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller…and United States v Miller….Yet, the State of California makes it a crime to have an AR-15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional."

The judge knows that Heller "does not guarantee a right to keep and carry 'any weapon whatsoever in any manner whatsoever and for whatever purpose.'" But he also knows that "lower courts have often cited this proviso about extreme cases to justify gun laws in average contexts. There is no evidence that the Supreme Court intended that language to be a license to avoid its common sense holding in average contexts." With its combination of personal defense and civic militia uses, Judge Benitez argues, the AR-15 is the quintessential weapon whose ownership the Second Amendment is meant to protect.

"The overwhelming majority of citizens who own and keep the popular AR-15 rifle and its many variants do so for lawful purposes, including self-defense at home," Judge Benitez writes. "Under Heller, that is all that is needed. Using the easy to understand Heller test, it is obvious that the California assault weapon ban is unconstitutional."

The judge acknowledges that the 9th Circuit that covers his court has not been prone to apply Heller's ruling in this common-sense way. Instead it has adopted a "two-step" process to think about the Second Amendment, not nearly as simple and obvious. "The first step asks, 'whether the regulation is one of the presumptively lawful regulatory measures identified in Heller, or whether the record includes persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical scope of the Second Amendment.'"

Benitez thinks that the law in question, the Assault Weapon Control Act (AWCA) of 1989, cannot pass that first step. "A ban on modern rifles [his preferred term for what the state calls 'assault weapons'] has no historical pedigree….In fact, prior to California's 1989 ban, so-called assault weapons were lawfully manufactured, acquired, and possessed throughout the United States."

Once it is established a law does impact a Second Amendment right, as Judge Benitez insists the AWCA does, then the 9th Circuit's complicated second step comes into play: deciding what level of "scrutiny" to apply to the law. Benitez insists the law hits the very core of the right—commonly owned weapons for self-defense in the home—in the most severe way: a total ban on a type of weapon. Thus, he thinks it should fail under any level of scrutiny, no matter how tough or lenient.

Still, he considers the state's assertion that "intermediate scrutiny" should apply in this case. This, he notes, requires a reasonable "fit" between the law and the state's public safety objective in passing the law. And to Judge Benitez, it is "clear that AWCA's assault weapons ban-by-prohibited-features was not designed to address a real harm, and even if it did, does not alleviate the harm in a material way."

The state argued that since not all guns or rifles are banned under AWCA, the law isn't a real burden on Second Amendment rights. Judge Benitez disagrees. "The problem is that the alternatives-remain argument has no limiting principle and would justify incremental firearm bans until there is only a single-shot derringer remaining for lawful self-defense. The same argument—that a handgun ban might be justified because government-approved alternatives are available—was rejected in Heller and it is rejected here."

Judge Benitez also explains that the historical record does not provide any strong proof that any substantial public benefit has accrued from AWCA. "In 1989, California's Legislature predicted an assault weapons ban would eliminate or reduce mass shootings. It has not turned out that way." Indeed, "even the State's evidence demonstrates that mass shootings with assault weapons continue to occur at the same average rate as before the ban." He adds that a now-defunct national assault weapon ban did not appear to work either.

The decision provides many anecdotes to support the idea that the rifles California bans are often used in legitimate self-defense, and that some of the particular aspects of rifles that get them banned are especially useful for home self-defense.

The AWCA's prohibition is not limited to AR-15s. The law bans a rifle "if it is one of three principal types. The first type is a semiautomatic centerfire rifle that does not have a fixed magazine but has one of the following prohibiting features: a pistol grip that protrudes conspicuously beneath the action of the rifle, a thumbhole stock, a folding or telescoping stock, a grenade or flare launcher, a flash suppressor, or a forward pistol grip. The second type is a semiautomatic centerfire rifle that has a fixed magazine able to hold more than 10 rounds. The third type is a semiautomatic centerfire rifle that has an overall length of less than 30 inches." The AWCA "imposes a felony criminal penalty for anyone who manufactures, distributes, imports, keeps for sale, offers for sale, or lends an 'assault weapon.' The prescribed prison sentences for violations of these malum prohibitum crimes are four, six, or eight years." Just possessing such weapons could be, depending on circumstances, either a misdemeanor or a felony.

These weapons "are not bazookas, howitzers, or machineguns," Judge Benitez writes. "Those arms are dangerous and solely useful for military purposes. Instead, the firearms deemed 'assault weapons' are fairly ordinary, popular, modern rifles. This is an average case about average guns used in average ways for average purposes." And as such, California's laws should not withstand this constitutional challenge from James Miller, other private citizens, and a squad of gun rights groups, including the Second Amendment Foundation and the Firearms Policy Coalition.

AWCA came from an essentially prehistoric time in Second Amendment jurisprudence, before Heller established that the Constitution protected the right to own commonly used weapons of self-defense, at least in the home. It can no longer stand in this new era, even if various pre-Heller challenges to AWCA failed for reasons no longer applicable after Heller. The decision provides a useful summation of some previous court decisions that run counter to Benitez's reasoning here, with quick explanations about why he thinks they were wrongly decided, or why the facts at issue differ enough from the specifics of the AWCA that their reasoning isn't operative in this case.

Judge Benitez also shows at length that the state's attempts to prove either that the banned weapons are a disproportionate crime threat or are not necessary for home self-defense fall apart under any sort of scrutiny, including a very poorly argued claim that the average defensive use of guns only requires 2.2 shots, an argument whose poor research methods the judge dismantles handily.

The judge also notes that "killing by knife attack is far more common than murder by any kind of rifle. In California, murder by knife occurs seven times more often than murder by rifle….A Californian is three times more likely to be murdered by an attacker's bare hands, fists, or feet, than by his rifle."

That's any kind of rifle, not just the banned subcategory. These patterns of minimal murder danger from rifles are also seen nationally; they are not a result of the state's ban on some rifles, a ban that will now need a reprieve from the 9th Circuit Court of Appeals to survive.