It's Hard To See How the 9th Circuit Can Manage To Uphold California's 'Assault Weapon' Ban

The appeals court is reviewing an injunction by a judge who concluded that the law is inconsistent with the Supreme Court's Second Amendment precedents.

Over the weekend, the U.S. Court of Appeals for the 9th Circuit stayed a permanent injunction against California's "assault weapon" ban that a federal judge issued on October 19. That means the law, originally enacted in 1989 and subsequently broadened, will remain in effect while the appeals court hears the state's appeal in Miller v. Bonta. But if the 9th Circuit carefully considers U.S. District Judge Roger Benitez's reasoning in issuing the injunction, it is hard to see how the appeals court can conclude that California's ban is consistent with the Supreme Court's Second Amendment precedents.

Benitez had previously ruled that the "assault weapon" ban was unconstitutional. In August 2022, the 9th Circuit vacated that June 2021 decision and instructed Benitez to reconsider the case in light of New York State Rifle & Pistol Association v. Bruen, the June 2022 case in which the Supreme Court concluded that New York had violated the Second Amendment by requiring residents to show "proper cause" before they were allowed to carry handguns in public for self-defense.

Bruen explicitly rejected the "interest-balancing" tests that federal courts had commonly used to uphold gun control laws. It instead prescribed a historical test aimed at determining whether a given regulation is consistent with the right to keep and bear arms as it was traditionally understood. "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," Justice Clarence Thomas wrote for the majority. "The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"

Applying that test to California's "assault weapon" ban, Benitez first considers whether the targeted firearms are "in common use," meaning they are "typically possessed by law-abiding citizens for lawful purposes." Beginning with its landmark 2008 decision in District of Columbia v. Heller, the Supreme Court has said weapons fitting that description are covered by the Second Amendment.

There can be little doubt that the semi-automatic rifles California has banned, based on features such as pistol grips, flash suppressors, and folding or telescoping stocks, are "in common use" for "lawful purposes." A state witness estimated that Americans own 24.4 million AR-15-style and AK-47-style rifles. The state insists that such firearms are suitable only for mass murder. But as Benitez notes, citing federal numbers, rifles of any kind were used in just 447 homicides nationwide in 2021. Even assuming that all of those rifles would have qualified as "assault weapons" under California's definition, he says, "less than .00001832%" of such guns "were used in homicides."

What were the rest used for? "The only logical answer," Benitez says, is that nearly all of those rifles "were used for lawful purposes." A 2021 survey of 16,700 gun owners sheds some light on those purposes. Among the respondents who had owned AR-15s or similar rifles (30 percent of the total), two-thirds said they used them for recreational target shooting, while half mentioned hunting and a third mentioned competitive shooting. Sixty-two percent said they used such rifles for home defense, and 35 percent cited defense outside the home.

Having established that "assault weapons" are "in common use" for "lawful purposes" and therefore that ownership of them is covered by "the Second Amendment's plain text," Benitez next asks whether prohibiting them nevertheless is "consistent with the Nation's historical tradition of firearm regulation." To illuminate that question, he asked the state to supply a list of relevant laws enacted between 1791, when the Second Amendment was ratified, and 1888, two decades after the 14th Amendment, ratified in 1868, required states to respect the right to keep and bear arms. He notes that California was "given generous time and leeway to satisfy its new burden."

California went "far beyond" Benitez's request, citing "316 laws covering 550
years—from 1383 to 1933." Despite the impressive length of that list, Benitez says, "the State has identified no national tradition of firearm regulation so broad in its coverage or so far reaching in its effect as its extreme 'assault weapon' statutes." Most strikingly, California could not cite any "outright prohibitions on keeping or possessing guns" during the time period most relevant in assessing the Second Amendment's scope. "Based on a close review of the State's law list and the Court's own analysis, there are no Founding-era categorical bans on firearms," Benitez writes. "Though it is the State's burden, even after having been offered a clear opportunity to do so, the State has not identified any law, anywhere, at any time, between 1791 and 1868 that prohibited simple possession of a gun."

When Benitez asked the state to identify what it considered the closest historical analog to its "assault weapon" ban, it cited bans on "trap guns." As he notes, those are not a particular kind of firearm but rather "a method by which a gun, any gun, can be set up to fire indiscriminately through the use of springs, strings, or other atypical triggering
mechanisms without an operator." Sometimes trap guns were used to kill game, and sometimes they were used to shoot home or property intruders. Early laws prohibiting such practices, Benitez says, bear little resemblance to a categorical ban on possession of firearms that meet state-specified criteria.

California also argued that laws regulating the storage of gunpowder established a precedent that justifies its "assault weapon" ban. But those laws likewise did not ban possession of particular guns, and they were aimed at fire prevention rather than crime prevention. The state also cited restrictions on bladed weapons, which do not seem relevant in assessing a "tradition of firearm regulation," and prohibitions on carrying concealed pistols, which regulated the manner in which certain guns could be used rather than banning their possession (even in public, since open carrying typically was still allowed). California did note an 1868 Alabama ban on carrying cane guns, but those were not in common use for lawful purposes.

The state cited 19th-century laws that required people to post a "surety" before carrying guns in public when they allegedly posed a threat to particular individuals. But in Heller, the Supreme Court said such laws did not establish a precedent that would justify the District of Columbia's handgun ban. And "under surety laws," it noted in Bruen, "everyone started out with robust carrying rights."

California even relied on statutes that restricted or prohibited gun ownership "based on a person's race, color, or slave status," Benitez notes. "The State agrees that these old reprehensible laws are morally repugnant and would obviously be unconstitutional today." Yet "the State suggests that these despicable legislative efforts might somehow be relevant to determining the traditions that define the scope of the Second Amendment." That "makes little sense," Benitez says, since "these laws treated our citizens as non-citizens [who] were not entitled to fully enjoy constitutional rights." In other words, "the legislators who passed these embarrassments were not concerned with the Second Amendment rights of citizens."

California came closer to identifying laws that resembled its "assault weapon" ban when it pointed to state and local machine gun restrictions enacted in the 1920s and '30s. But "these laws do not evidence a long enough historical tradition of prohibiting particular firearms," Benitez writes. "These few and ephemeral regulations mostly came and went with little fanfare during the twentieth century."

Before the 1990s, Benitez notes, "there was no national history of banning weapons because they were equipped with furniture like pistol grips, collapsible stocks, flash hiders, flare launchers, or threaded barrels. In fact, prior to California's 1989 ban, so-called 'assault weapons' were lawfully manufactured, acquired, and possessed throughout the United States."

One might object that, since the guns prohibited in California did not exist until relatively recently, it is unreasonable to demand closely similar examples from the 18th or 19th century. But Benitez notes that "lever-action repeating Henry and Winchester rifles" were "popular at the time of the Fourteenth Amendment." They "had large tubular magazines and could be fired multiple times in succession very accurately and quickly." Yet "there are no state prohibitions on the possession or manufacture of these lever-action rifles in the State's law list."

Although Benitez emphasizes that the Supreme Court has foreclosed a constitutional analysis that weighs a law's purported benefits against the burdens it imposes, he also questions the logic of California's law. "Modern semiautomatic rifles like the AR-15 platform rifle are widely owned by law-abiding citizens across the nation," he writes. "Other than their looks (the State calls them 'features' or 'accessories') these prohibited rifles are virtually the same as other lawfully possessed rifles. They have the same minimum overall length, they use the same triggers, they have the same barrels, and they can fire the same ammunition, from the same magazines, at the same rate of fire, and at the same velocities, as other rifles."

Benitez offers a couple of examples to illustrate the arbitrariness of California's distinctions. Under the state's law, he notes, "a Springfield 1911 pistol with a threaded barrel is an 'assault weapon,'" while "the same 1911 pistol" without a threaded barrel "is fine." Similarly, "an AR-15 with normal parts is banned, but the same AR-15 with an awkward shark fin grip, an unmovable stock, and a barrel compensator in place of a flash hider, shooting the same ammunition, is fine." Given the details of what the ban does and does not cover, along with data indicating that "assault weapons" are rarely used to commit murder, it is hard to credit California Attorney General Rob Bonta's claim that upholding Benitez's "dangerous and misguided" decision would "put our communities at grave risk."

Why, then, did the state decide to ban guns with the specified features? Because "similar rifles have been used in some mass shootings," Benitez says. Through this law, "the legislature hoped to keep these modern weapons out of the hands of mass shooters."

Under Bruen, Benitez says, that goal cannot trump the right to own guns in common use for lawful purposes. And in any event, he says, that policy choice disregards the value of those lawful uses. He notes estimates that Americans use guns for self-defense hundreds of thousands to nearly 2 million times a year. "That is a lot of situations where Jane Doe needs a firearm to defend herself and her family," he notes, describing several real-life cases where people used "assault weapons" to ward off violent criminals.

"This Court understands the unquestionable tragedy caused by lawless individuals
using modern semi-automatic guns or any gun to injure or kill innocent men, women, or
children," Benitez writes. "Their lives are important. But are their lives any more important than Jane Doe's or the lives of her family? We hear constantly about mass shootings for days and weeks and on anniversaries. But how often do we celebrate the saving of the life of Jane Doe because she was able to use a semi-automatic weapon to defend herself and her family from attackers? Are the lives of Jane, John, and Junior Doe worth any less than others? Are they less important?"

Even without the guns it has decided to ban, California says, people would have other options for self-defense. But would-be mass murderers, who typically use handguns, likewise would have other options, including rifles without the features that California has deemed intolerable. More to the point, Benitez notes, the Supreme Court has explicitly rejected the idea that the government may prohibit a certain kind of firearm (in Heller, handguns) as long as alternatives are available. "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," Benitez writes. "Heller demolished that argument."

You may think Benitez's scenario of "incremental firearm bans" is implausible. But the arbitrary distinctions drawn by "assault weapon" bans invite such escalation. Benitez notes that one of the state's witnesses, addressing the question of why laws like California's allow people to own the Ruger Mini-14 Ranch Rifle even though it is functionally similar to the prohibited guns, opined that "the firearm restrictions are to be increased 'incrementally.'"