The Volokh Conspiracy

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[UPDATED] Ninth Circuit Panel Sends California "Assault Weapons" Ban Challenge Back to District Court,

so the District Court can reconsider it in light of the Supreme Court's new Bruen precedent.


[UPDATE: When I first posted this, I completely neglected Judge Bumatay's dissent; my apology for this—I've added it as an UPDATE below.]

That's today's order from Judges Andrew Hurwitz, Daniel Bress, and Patrick Bumatay:

The district court's judgment is vacated, and this case is remanded to the district court for further proceedings consistent with the United States Supreme Court's decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. ____ (2022).

The parties shall bear their own attorney's fees, costs, and expenses. This order constitutes the mandate of this court.


Pretty standard procedure, when a new court decision clearly changes the legal landscape—and the landscape has sharply changed, given that the lower court decision upheld the ban under so-called "intermediate scrutiny," and the Court in Bruen rejected that sort of approach (for all gun regulations, not just gun carry regulations). The Ninth Circuit panel could have just applied Bruen instead, but it didn't have to, and often panels do leave the matter for the court to reconsider in the first instance.

One question for the district judge on remand, of course, would be whether so-called "assault weapons" are indeed "dangerous and unusual," or whether they are instead in sufficiently "common use" that they aren't unusual (though, like all guns, they are dangerous). Another question might be—the matter is unclear—whether such bans might be upheld on the theory that they don't impose a material "burden on the right of armed self-defense" or "prevent 'law-abiding, responsible citizens' from exercising their Second Amendment right to public carry [and to private gun possession]." Hard to tell for certain what the result will be, and of course once the district court reconsiders the case, it will likely go back up to the Ninth Circuit.

UPDATE: Judge Bumatay, however, dissented, writing:

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 (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.