DECISION
ROGER T. BENITEZ, United States District Judge.
I. INTRODUCTION
Like the Swiss Army Knife, 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, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) and United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). 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.
Plaintiffs challenge a net of interlocking statutes which impose strict criminal restrictions on firearms that fall under California's complex definition of the ignominious "assault weapon." Hearings on a preliminary injunction were consolidated with a trial on the merits pursuant to F.R.C.P. Rule 65(a)(2). Having considered the evidence, the Court issues these findings of fact and conclusions of law,
The Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Heller, 554 U.S. at 635, 128 S.Ct. 2783. The Supreme Court clearly holds that the Second Amendment protects guns commonly owned by law-abiding citizens for lawful purposes. At the same time, "the Second Amendment confers an individual right to keep and bear arms ... that `have some reasonable relationship to the preservation or efficiency of a well regulated militia.'" Id. at 622, 128 S.Ct. 2783. And although the Supreme Court cautioned that the Second Amendment does not guarantee a right to keep and carry "any weapon whatsoever in any manner whatsoever and for whatever purpose," Heller, 554 U.S. at 626, 128 S.Ct. 2783, 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. Unfortunately, Heller's acknowledgement of exceptions for gun laws at the extreme is in danger of swallowing Heller's rule for the average case.
This case is not about extraordinary weapons lying at the outer limits of Second Amendment protection. The banned "assault weapons" are not bazookas, howitzers, or machineguns. Those arms are dangerous and solely useful for military purposes. Instead, the firearms deemed "assault weapons" are fairly ordinary, popular,
One is to be forgiven if one is persuaded by news media and others that the nation is awash with murderous AR-15 assault rifles. The facts, however, do not support this hyperbole, and facts matter. Federal Bureau of Investigation murder statistics do not track assault rifles, but they do show 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. For example, according to F.B.I. statistics for 2019, California saw 252 people murdered with a knife, while 34 people were killed with some type of rifle — not necessarily an AR-15.
A. Pre-Heller Origin of the Assault Weapons Control Act ("AWCA")
It is clear today, in the year 2021, that individuals have a right to keep and possess dangerous common arms."
AWCA was a policy choice unencumbered by constitutional considerations. The California Legislature weighed only the firearm's value for sports and recreation against the relative dangerousness of the weapon and the danger of it being misused by criminals. It was a different time in legal history.
B. Pre-Heller Second Amendment Jurisprudence
In 1989, most judicial thinking about the Second Amendment was incorrect. Prior to 2008, lower court opinions did not acknowledge that the Second Amendment conferred an individual right to own firearms, or that the right applied against the states. See e.g., United States v. Hancock, 231 F.3d 557, 565-66 (9th Cir. 2000) ("[T]his court has concluded that `the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen.'") (citation omitted).
In the year 1989, the California Legislature was not concerned with maintaining room for a citizen's constitutional right to have a common firearm of one's choosing to defend hearth and home. In making its policy choice, the California Legislature neither mentioned a modern rifle as a means of self-defense, nor did the core Second Amendment right appear to have been any part of its consideration.
C. Amending AWCA Using a Prohibited-Features Approach
On January 1, 2000, Senate Bill 23 went into effect adding to AWCA the features-based definition of "assault weapons" (now codified at California Penal Code § 30515(a)). At this juncture, it is not clear why § 30515(a) was enacted, as there is no legislative history in evidence. The federal assault weapon ban was already in place.
It may have been the fact that manufacturers began producing new firearms with similarities to listed rifles to circumvent the ban.
Concerning AWCA's prohibited-features amendment, the Attorney General has not identified any relevant legislative history or legislative findings about the societal dangers of pistol grips, flash hiders, telescoping stocks, flare launchers or barrel shrouds. The State's legislative information website lists several committee reports leading up to the signing of Senate Bill 23 by California Governor Gray Davis on July 19, 1999. See leginfo.legislature.ca.gov. But there are no studies of criminal gun usage recounted. There are no assault weapon experiences of other states or cities recited. There are no public hearings described. There is one indication, however: Senate Bill 23 was said to be similar to Assembly Bill 2560, which was passed the previous year, but vetoed by California Governor Pete Wilson. Governor Wilson issued a statement with his veto criticizing AWCA's prohibited-features approach and offered this analogy: "If this bill's focus were high speed sports cars, it would first declare them `chariots of death' and then criminalize possession of Ramblers equipped with racing stripes and wire wheels."
After AWCA was amended times changed. The federal ban expired in 2004. Heller was decided in 2008. McDonald was decided in 2010. Nevertheless, California continues to restrict "assault weapons" under § 30515(a). See Cal. Pen. Code §§ 30600(a), 30605(a).
D. Assault Weapons Defined
Under § 30515(a), a rifle is labeled an "assault weapon" if it is one of three principal types. The first type is a semiautomatic centerfire
As an aside, the "assault weapon" epithet is a bit of a misnomer.
The mechanical design features that identify a rifle as a California "assault weapon," it is argued, tend to help a person shoot the rifle more accurately under pressure. The Plaintiffs make the point that this is a better condition for all lawful uses, i.e., a more accurate gun is better for everyone. After all, responsible gun-owners worry about the ending point of every round fired. If shooting in self-defense, a home defender wants every round to hit only attackers.
In contrast, the Attorney General argues that better accuracy makes it a more dangerous weapon. According to the Attorney General, "assault weapons enable a shooter to fire more rounds rapidly in a given period with greater accuracy, increasing the likelihood that more individuals will be shot and suffer more numerous injuries." The implied context is a mass shooting. In the terrible mass shooting context, which fortunately is a rare event, reducing the number of innocent victims is the State's goal, although it is not at all clear that a less accurate rifle would reduce the number of victims. A less accurate rifle in the hands of a mass shooter may very well result in different victims, but not necessarily less victims. On the other hand, in the self-defense context, which seems to be more common, taking accurate shots at attackers is vitally important for the innocent victim. While the state ought to protect its residents against victimization by a mass shooter, it ought also to protect its residents against victimization by home-invading criminals. But little is found in the Attorney General's court filings reflecting a goal of preventing violence perpetrated against law-abiding citizens in their homes. Instead, the State's litigation stance is more like the view recently expressed by a police chief in Oakland,
E. Criminal Penalties
The State prefers a policy of residents not arming themselves with assault weapons, and for those who do, arresting residents. California Penal Code § 30600 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. See California Penal Code § 30600(a). One who merely possesses an "assault weapon" in California is guilty of a misdemeanor under California Penal Code § 30605(a) or a felony pursuant to California Penal Code § 1170(h)(1) ("a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years"). In other words, the criminal sanction for possession of any gun deemed an "assault weapon" is a wobbler and can be sentenced as either a felony or a misdemeanor. If one possesses only one or two properly registered pre-ban assault weapons, the crime is a misdemeanor for the first offense. Cal. Pen. Code § 30605(b). Beginning January 1, 2020, a prosecutor may in lieu of criminal prosecution for mere possession of an assault weapon, institute a civil action for an injunction, fine, and destruction of the firearm as a nuisance. Cal. Pen. Code § 30800.
As one commentator describes it, "[m]ere possession of an object that is commonplace and perfectly legal under federal law and in forty-four states will land you in prison, [will] result in the loss of your rights including likely the right to vote, and probably [will] cause you irreparable monetary and reputational damages, as well as your personal liberty. All of this despite the absence of even a single victim."
F. Modern Rifles
The Second Amendment protects modern weapons. Caetano v. Massachusetts, 577 U.S. 411, 412, 136 S.Ct. 1027, 194 L.Ed.2d 99 (2016). The firearms banned by California Penal Code § 30515 and deemed "assault weapons" are modern weapons. They are principally AR-15 type rifles, pistols, and shotguns. Plaintiffs and others refer to them as "modern sporting rifles" although they are clearly useful for more than just sport. They are modern rifles that do not look like the iconic rifles from years gone by. They are fabricated with synthetic polymers and anodized aluminum in cerakoted colors of black and brown and green. Parts once made of solid wood on guns of the past are gone. These modern
II. ANALYSIS
The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms,
Although the Attorney General sees it differently, the Supreme Court also recognizes that the Second Amendment guarantee includes a right to keep and bear firearms that have "some reasonable relationship to the preservation or efficiency of a well-regulated militia." Miller, 307 U.S. at 178, 59 S.Ct. 816. Miller implies that a weapon that is commonly owned and that is useful for the common defense for a militia member is also protected by the Second Amendment.
Heller and Miller are consistent. Heller took the already expansive zone of protection for weapons that could be used by the militia and focused on the core use of firearms for self-defense. "The [Heller] Court determined that the right to keep and bear arms is an individual right held by the people, and not limited by the prefatory clause — `a well regulated Militia' — only to `the right to possess and carry a firearm in connection with militia service.'" Young v. State, 992 F.3d 765, 782 (9th Cir. 2021) (en banc). As McDonald puts it,
McDonald, 561 U.S. at 787, 130 S.Ct. 3020. In Caetano, the Court underscored these two points. One, the Second Amendment extends at the very least to common modern arms useful for self-defense in the home. Two, Second Amendment protection includes both common arms and weapons that may also be useful in warfare. Caetano, 577 U.S. at 412, 136 S.Ct. 1027 (quoting Heller, 554 U.S. at 582, 624-25, 128 S.Ct. 2783); contra Kolbe v. Hogan, 849 F.3d 114, 131 (4th Cir. 2017) (en banc) (weapons most useful in warfare are not protected by the Second Amendment).
A. The Heller Test
With these principles firmly established, it is time to put the constitutionality of
The Heller test is a test that any citizen can understand. Heller asks whether a law bans a firearm that is commonly owned by law-abiding citizens for lawful purposes. It is a hardware test.
1. Popularity in California
Modern rifles have become immensely popular in the United States. Even in California, despite being banned for 20 to 30 years, according to the State's own evidence, there are 185,569 "assault weapons" currently registered with the California Department of Justice. Defs. Exh. CZ, Glover Decl. at ¶ 7 (DEF3222). Another 52,000 assault weapon registrations were backlogged and left unregistered when the last California registration period closed in 2018. See n.37 infra. There are likely many more in California. According to the State's evidence, a 2018 California Safety and Well-Being Survey reports 4.2 million adult Californians personally own a firearm.
Californians buy a lot of firearms. In the year 2020 alone, residents bought 1,165,309 firearms.
2. Popularity Nationally
Nationally, modern rifles are ubiquitous. In 2018 alone (the most recent year with data), 1,954,000 modern rifles were manufactured or imported into the United States. Over the last three decades, 19,797,000 modern rifles have been manufactured or imported into the United States and the numbers have been steadily increasing. Pls. Exh. 4-8, NSSF Firearm Production in the United States, at 7. Almost one-half of all rifles (48%) produced in 2018 were modern rifles. Id. at 18. That is 664,360 rifles. That same year, 34% of buyers purchased a modern rifle for personal protection, while 36% purchased for target practice or informal shooting, and 29% purchased for hunting. Pls. Exh. 4-5, NSSF Survey, at 9. In contrast, only 5% of traditional rifles were bought for personal protection. For female gun buyers in 2018, after a handgun, a modern rifle was the next most popular choice. Id. at 24. The same was true of all first-time gun buyers in 2018. Id. at 25. During 2018, approximately 18,327,314 people participated nationally in target and sport shooting specifically with modern rifles. Pls. Exh. 4-6, NSSF Report on Sport Shooting Participation in the U.S. in 2018, at ii. Nationally, 3-gun shooting is the activity with the highest mean days of participation (23.8 days), but the next highest activity is target shooting with a modern rifle (15.3 days). Id. at 32. In the West Region, target shooting with a modern rifle is the top activity. Id.
3. More Popular than the Ford F-150 Pickup Truck
Modern rifles are popular. Modern rifles are legal to build, buy, and own under federal law and the laws of 45 states. There are probably more modern rifles in circulation than there are Ford F-150 pickup trucks. In 2018, 909,330 Ford F-150s were sold.
4. More Popular than Stun Guns
The Supreme Court implied that as few as 200,000 stun guns owned nationwide by law abiding citizens is a sufficient number to show common ownership and receive constitutional protection. Caetano, 577 U.S. at 420, 136 S.Ct. 1027 (Alito, J., and Thomas, J., concurring) (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."). Based on the evidence presented, it can be confidently said that between at least 200,000 and perhaps 1,000,000 modern rifles are owned in California alone. Based on the lack of evidence at trial that these 200,000 to 1,000,000 California guns are often used in crime, it is reasonable to infer that most are owned by law-abiding citizens who use them only for lawful purposes.
After handguns, modern rifles are probably the most popular firearms in America. They are quietly owned by millions of law-abiding citizens for lawful purposes ranging from home defense to sporting competitions. Yet, California has banned, and continues to ban, these popular rifles. Perhaps the State has a long-range plan of taking incremental steps toward more and more gun control.
At the core this is a simple case. Like the cases of Heller and McDonald, here the government bans an entire class of very popular hardware — firearms that are lawful under federal law and under the laws of most states and that are commonly held by law-abiding citizens for lawful purposes. Under no level of heightened scrutiny can the law survive.
B. The Ninth Circuit's Two-Step Framework
The Ninth Circuit has yet to adopt the easy to grasp Heller test. Instead, the Ninth Circuit uses what it calls "a two-step framework." Young, 992 F.3d at 783. In practice the two-step framework is not particularly simple.
1. Step One — Presumptively Lawful or Historical Regulation?
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." Jackson v. City & Cnty. of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014) (internal quotes and citations omitted); Young, 992 F.3d at 783. In other words, if the regulation is presumptively lawful or historically approved, the inquiry ends. Young, 992 F.3d at 783.
The California modern rifle ban is not excused from judicial scrutiny on either ground. First, a complete ban on modern rifles is not one of the presumptively lawful measures identified in Heller. Second, a ban on modern rifles has no historical pedigree. Prior to the 1990's, there was no national history of banning weapons because they were equipped with furniture like pistol grips, collapsible stocks, flash hiders, flare launchers, or barrel shrouds. In fact, prior to California's 1989 ban, so-called assault weapons were lawfully manufactured, acquired, and possessed throughout the United States.
The Attorney General disagrees and claims that AWCA is analogous to a handful of state firing-capacity regulations from the 1920's and 1930's and one District of Columbia law from 1932. The state laws were repealed long ago. The only law in the United States that has remained in
However, the 76-year existence of the District of Columbia regulation did not stand in the way of the Supreme Court when it dismantled the District of Columbia's handgun ban in Heller. The District of Columbia regulation (that the California Attorney General relies on today) was not regarded as long-standing and presumptively lawful. It was not even mentioned. In fact, the Heller opinion broadly cautioned courts deciding whether an analogous regulation is long-standing saying that, "we would not stake our interpretation of the Second Amendment upon a single law, in effect in a single city, that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense of the home." Heller, 554 U.S. at 632, 128 S.Ct. 2783. Yet, that is what the Attorney General is proposing. In view of Heller's caution, this Court finds that the District of Columbia regulation is insufficient to demonstrate a longstanding prohibition on semiautomatic modern firearms. AWCA's ban has no historical pedigree. With the pre-check completed, the hard work begins.
2. Step Two — Closeness to the Core and Severity of the Burden
Since AWCA's assault weapon ban is not presumptively lawful or historically permitted, the Second Amendment applies. At step two, a court selects one of the three levels of scrutiny. Young, 992 F.3d at 784. Here, a sort-of bull's eye test is used. A target is set up. At the center of the target is the core of the Second Amendment right. The first step measures how close the statute hits to the bull's eye. The second step measures how severely the statute burdens the core Second Amendment right. "Because Heller did not specify a particular level of scrutiny for all Second Amendment challenges, courts determine the appropriate level by considering `(1) how close the challenged law comes to the core of the Second Amendment right, and (2) the severity of the law's burden on that right.'" Bauer, 858 F.3d at 1221-22 (quoting Silvester, 843 F.3d at 821).
The modern rifle ban strikes at the acknowledged core of the Second Amendment, which is the right of self-defense in the home. Heller held that the "core" Second Amendment right is for law-abiding citizens to defend hearth and home.
Going straight to the core, the California law criminalizes modern rifles kept or possessed everywhere, including in the home for self-defense. There are no current exceptions for ordinary citizens.
The California statutes not only directly burden the core, but impose the severest burden — a complete ban.
3. Two Lower Levels of Scrutiny
Assuming AWCA requires some form of lower scrutiny, which prudence dictates, a lower level must be selected under the Ninth Circuit's two-step framework. "[A] law that implicates the core of the Second Amendment right and severely burdens that right receives strict scrutiny; and in other cases in which Second Amendment rights are affected in some lesser way, we apply intermediate scrutiny." Young, 992 F.3d at 784; Silvester, 843 F.3d at 821.
The Attorney General argues that the lowest form, i.e., intermediate scrutiny should apply. Most courts select intermediate scrutiny. United States v. Torres, 911 F.3d 1253, 1262 (9th Cir. 2019) ("Although not dispositive of the question, we note that there has been `near unanimity in the post-Heller case law that, when considering regulations that fall within the scope of the Second Amendment, intermediate scrutiny is appropriate.'"). AWCA would fail strict scrutiny. But even under intermediate
4. Intermediate Scrutiny
When intermediate scrutiny is selected, another two-part test is required: (1) the government's interest must be important; and (2) the "fit" of the law to the objective must be reasonable. Silvester, 843 F.3d at 821-22. As always, the State's objective with these laws (i.e., to reduce gun crime) passes the first prong of the test. Reducing gun crime is a very important objective. Part one is a given. Part two is where the rubber meets the road.
Part two requires a reasonable fit, but it does not demand the least restrictive means of furthering that objective. Id. at 827 (quoting Jackson, 746 F.3d at 969). Least restrictive means would be a test for strict scrutiny. "Instead," in the Ninth Circuit, "the statute simply needs to promote a substantial government interest that would be achieved less effectively absent the regulation." Mai v. United States, 952 F.3d 1106, 1116 (9th Cir. 2020) (quoting Torres, 911 F.3d at 1263). This watered-down test has been criticized. Silvester v. Becerra, ___ U.S. ___, 138 S.Ct. 945, 950, 200 L.Ed.2d 293 (2018) (Thomas, J., dissenting from denial of certiorari) ("The Ninth Circuit ... dismissed any tailoring concerns by observing that intermediate scrutiny requires `only that the regulation `promote a substantial government interest that would be achieved less effectively absent the regulation.' But that observation was incomplete. Intermediate scrutiny also requires that a law not `burden substantially more protected activity than is necessary to further the government's interest.' The Ninth Circuit did not ask this second question."). Even in its diluted form AWCA fails the intermediate fit test.
Under this relaxed test a state could enter a person's home without a warrant and seize him or his guns in violation of the Fourth Amendment prohibition on searches and seizures without a warrant or the Due Process Clause of the Fourteenth Amendment. What other governmental mischief might be tolerated by courts under such a deferential standard?
As an aside, this Court notes that such a deferential treatment of government restrictions of Second Amendment rights is not to be found anywhere in the Constitution, the Bill of Rights, or in the text of the Second Amendment. And there is hardly any governmental intrusion that cannot be rationalized as important (for example, a California Japanese internment camp). See Korematsu v. United States, 323 U.S. 214, 218-19, 65 S.Ct. 193, 89 L.Ed. 194 (1944), abrogated by, Trump v. Hawaii, ___ U.S. ___, 138 S.Ct. 2392, 201 L.Ed.2d 775 (2018) ("Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group.").
While the Second Amendment intermediate scrutiny fit test is an overly relaxed standard, it is not a free pass, as other courts have pointed out. When subjected to intermediate scrutiny, "the [State] is not thereby `insulated from meaningful judicial review.'" Heller II, 670 F.3d at 1259 (quoting Turner Broad. Sys., Inc. v. F.C.C. (Turner I), 512 U.S. 622, 666, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)). Even under intermediate scrutiny, a court must determine whether the legislature has based its conclusions upon substantial
5. Checkpoints
a. Checkpoint No. 1: burden of proof
Plaintiffs do not have to shoulder the burden of proving that they are entitled to enjoy Second Amendment rights. The command of the Amendment is that the right to keep and bear arms "shall not be infringed." It follows that when a citizen complains in a facial challenge that the government is infringing, then it is the government that must carry the burden of justifying its restriction of Second Amendment rights. The government must carry the burden of establishing that its regulations are reasonably tailored. "[S]ince the State bears the burden of justifying its restrictions, it must affirmatively establish the reasonable fit we require." (Bd. of Trs. of State Univ. of N.Y., 492 U.S. at 480, 109 S.Ct. 3028 (citation omitted)); Ezell v. City of Chicago, 651 F.3d 684, 706 (7th Cir. 2011) (government bears the burden of justifying its action under heightened standard of judicial review). If the burden of proof is shouldered, the government regulation survives scrutiny. If the government does not bear its burden of persuasion or its burden of proof, or does not support its case at all, the citizen prevails.
The Attorney General takes a different view. He says that Plaintiffs bear the burden at step one, citing Binderup v. Att'y Gen. U.S., 836 F.3d 336, 347 (3d. Cir. 2016) (en banc). Defs. Memo of Contention of Facts and Law, Dkt #65, at 8 ("It is Plaintiffs' burden to show that assault weapons are in `common use' by law-abiding citizens for lawful purposes."). But Binderup placed the first step burden on a plaintiff for an as-applied challenge, which makes sense because in such cases the plaintiff claims to be the exception to the rule.
The Attorney General also objects that the state should not have the
The presumption in favor of rightfully possessing a citizen's arm was made during the adoption of the Second Amendment. The government may carry its burden in a myriad of yet undefined ways, but it is the government's burden to bear. In this case, there is sufficient evidence to prove that AR-15 type rifles are commonly owned by law-abiding citizens for lawful purposes like self-defense and hunting. At the same time, there is very little evidence regarding the commonality of AK-47 type rifles, or semiautomatic shotguns, or "assault pistols" whatever they are.
b. Checkpoint No. 2: the alternative guns argument
Re-phrasing the Attorney General's argument, California's modern rifle ban does not destroy the fundamental right of self-defense of the home because some guns remain lawful to keep in the home. Running through his arguments is the rationale that no harm is done because a citizen may still buy and keep traditional rifles and "featureless" rifles, traditional shotguns, and handguns from the state-approved handgun roster. (What is not mentioned is that the handgun roster is a shrinking roster.) See Unsafe Handgun Act, Cal. Pen. Code § 31910(b)(7); see also Renna v. Becerra, Case No. 20cv2190-DMS, Dkt. # 17, Order (filed 4/23/21) (describing California's shrinking handgun roster). Therefore, according to the Attorney General, the constitutional right is
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. 554 U.S. at 629, 128 S.Ct. 2783 (It is "no answer to say ... that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed."); see also III(B)(5) infra. (discussing N.Y. State Rifle & Pistol Association v. Cuomo, 804 F.3d 242 (2d Cir. 2015)).
c. Checkpoint No. 3: legislative history
As part of intermediate scrutiny review, a court may consider "the legislative history of the enactment as well as studies in the record or cited in pertinent case law." Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir. 2015). While there are legislative findings for the enactment of AWCA, there are none for the prohibited-features amendments of § 30515. AWCA's enacted findings indicate that no consideration by the California Legislature was given to the ban's burden on home defense or militia use. This makes it challenging to precisely discern the State's rationale for later amending AWCA. "[T]he municipality's evidence must fairly support the municipality's rationale for its ordinance." Jackson, 746 F.3d at 969 (quoting City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002)). And while courts "should not conflate legislative findings
i. a faulty prediction
In 1989, California's Legislature predicted an assault weapons ban would eliminate or reduce mass shootings. It has not turned out that way. As discussed later, even the State's evidence demonstrates that mass shootings with assault weapons continue to occur at the same average rate as before the ban. If Congress is correct, the national assault weapon ban also did not work. Congress passed the 1994 assault weapon ban with a ten-year sunset provision and allowed the ban to lapse on its own in 2004. Congress has not re-enacted a ban since that time. There is disagreement by academicians over the effect of the federal ban on reducing mass shootings and even those who saw a good effect see the effect as slight and diluted by other aspects like the associated ban on larger capacity magazines.
State level assault weapon bans that remain in effect have little to show. Defs. Exh. BL, Christopher S. Koper, Assessing the potential to reduce deaths and injuries from mass shootings through restrictions on assault weapons and other high-capacity semiautomatic firearms, Criminology and Public Policy (2020) at 148 (DEF 2015) (the effects of state-level restrictions are not yet clear), and 158 (DEF2025) ("evidence has been mixed"). Studies suggest that large capacity magazine ("LCM") bans may have a greater effect. Id. at 159 (DEF2026) ("Most notably, Webster et al. (2020), in their state-level panel analysis... suggested that state LCM bans reduce mass murder incidents ... and fatalities whereas AW-specific restrictions do not."). Nevertheless, California continues its experiment. No case has held that intermediate scrutiny permits a state to impinge on the Second Amendment right by continuing to employ a known failed experiment.
ii. the federal ban's history
In addition to AWCA's legislative history, the Attorney General cites the legislative history of the 1994 federal ban to justify AWCA. Specifically, he cites House Report No. 103-489 (Defs. Exh. J). Defs. Memo of Contentions of Fact and Law at 17-18. The Attorney General says that Congress found assault weapons to be the weapons of choice among drug dealers, criminal gangs, hate groups, and mentally deranged persons bent on mass murder. Id. (citing H.R. No. 103-489, at 13). Actually, this part of the House Report simply lays out some of the evidence received during five years of hearings. It does not contain findings approved by the full Congress.
d. Checkpoint No. 4: news reports and police reports
News reports are normally considered inadmissible hearsay, but both sides offered into evidence news articles and magazine pieces and expert testimony relying on newspaper articles about gun-related events. News reports to which the parties made no objection are admitted into evidence. But it begs the question, "Where are the actual police reports or criminal court records?" Why are the only collections of offensive or defensive gun use maintained by biased organizations? How reliably can a news reporter after the fact, identify a firearm as an "assault weapon," or determine the size of an ammunition magazine, or count the number of rounds fired? One would expect a police report to accurately record these kinds of raw facts.
While the Plaintiffs may have difficulty obtaining copies of actual police reports, surely the Attorney General has easy access. But the Attorney General has not
The defense of home and family by using a gun is not a hypothetical event. While there are not hard numbers, it surely happens a lot. Approximately 1,000,000 burglaries of a home while occupied take place each year, according to Department of Justice statistics. See n.100 infra.
The Attorney General does not take offense at the fragility of his evidence. Instead, the Attorney General argues that the law excuses it. He reminds us that under intermediate scrutiny, the government may "rely on any evidence `reasonably believed to be relevant' to substantiate its interests." Defs. Memo of Contentions of Fact and Law, at 17 (citing Fyock, 779 F.3d at 1000). He says that his evidence need not be particularly robust or persuasive. On the contrary, he says the "evidence need only `fairly support' the government's conclusions." Id. For Second Amendment scrutiny, many courts have applied a lowered standard, but even the lowest form of scrutiny does not require obeisance from the fact-finder.
The Attorney General's lack of direct evidence is noted. There is no direct testimony from criminal shooters. The sociologists' studies disagree and speak of further study and hopes for better data. As for the legislative history of § 30515, it tells only of prosaic interest balancing undertaken without regard for the constitutional rights of individuals.
III. THE EVIDENCE
Approximately 14,000 pages of evidence and testimony have been submitted and reviewed by this Court. Only the most salient evidence is addressed in this opinion. Different types of trial evidence were presented and are evaluated in the manner required. Fact witnesses were judged on accuracy and credibility. Expert witnesses were judged, and their opinions given the weight deserved.
A. AR-15's in Home Defense
Because firearm possession for the defense of home, self, and family is at the core of the Second Amendment right, it is important to know if there is evidence of modern rifles used for self-defense or defense of the home and family. Recall that AWCA's § 30515 has no present exception allowing a typical Californian to lawfully acquire a modern rifle for home defense. There are no exceptions for urban dwellers and there are no exceptions for rural farmers. There are no exceptions for wealthy targets of armed home invaders. There are no exceptions for the impoverished who can afford only one self-defense firearm for all situations.
Without question, there is clear evidence that AR-15 rifles are and have been used for self-defense. For example, in one case an AR-15 was used in Florida by a pregnant wife and mother to defend her family from two armed, hooded, and masked home intruders. Pls. Exh. 1-1. As soon as the armed intruders entered the back door of her home, they pistol-whipped her husband — fracturing his eye socket and sinus cavity. Then they grabbed the 11-year-old daughter. Before they could do any more harm, the pregnant wife retrieved the family AR-15 from a bedroom and fired, killing
In another case, an AR-15 was used by a young man in Oklahoma to defend himself from three masked and armed home invaders wearing all black. Pls. Exh. 1-7. The intruders had selected the home because the family had money and expensive belongings and the criminals had previously burglarized an apartment on the property. The three intruders broke through a rear glass door before, to their surprise, they were shot by the home defender using an AR-15.
When seven armed and masked intruders went to a home in Florida at 4:00 a.m., burst through the front door and fired a gun, the occupants of the home, one armed with an AR-15, fired over 30 rounds and stopped the attackers. Pls. Exh. 1-2.
An AR-15 was used to stop a knife attack at an apartment building in Illinois. Pls. Exh. 1-3. Dave Thomas grabbed his AR-15 explaining, "It's just a bigger gun. I think a little bit more than an intimidation factor definitely played a part in him actually stopping." No shots were fired. Thomas also said, "[t]he AR-15 is my weapon of choice for home protection ... It's light, it's maneuverable."
An AR-style rifle was used by a homeowner across the street from the mass shooter in Sutherland Springs, Texas. The defender shot and injured the mass shooter, who then dropped his assault rifle and fled. Pls. Exh. 1-4.
An AR-15 was used to stop an intruder in Pennsylvania. Pls. Exh. 1-6. A criminal already awaiting trial for aggravated assault in another incident, forced his way into the couple's apartment late at night. One of the apartment-dwellers was able to retrieve an AR-15 and defend against the attacker who disregarded warnings to stop.
1. Prohibited Features Are Good for Home Defense
The evidence shows that one reason for the popularity of the modern rifle is that it makes a good weapon for self-defense at home. The AR-15, in particular, is an easy firearm to shoot accurately and is generally easier to fire accurately than a handgun. The AR-15 rifle is light in weight, and has good ergonomics, and is suitable for people of all statures and varying levels of strength.
When burglars break and enter, a homeowner with a modern rifle has thirty rounds at the ready, assuming a standard magazine is used.
On an AR-15 rifle, a telescoping stock is typically capable of adjusting to between three and six different lengths.
A folding stock, though it makes the firearm more portable, does not turn a semiautomatic rifle into a common instrument of crime, since it does not make a rifle easily concealable for most criminal activities.
A drawback to the featureless AR-15 rifle is that the lack of a pistol grip makes it less safe when it comes to clearing malfunctions.
2. California's Reasons for Banning
What is the reason for continuing to ban these modern firearms? "So, the State here is concerned about the configuration of particular arms that have been proven to be the most lethal in mass shooting situations."
The Attorney General views rapid-fire accuracy as a danger to be outlawed.
a. The accuracy conundrum
Accuracy is very important for self-defense because a civilian is accountable for every round he fires. If he misses the attacker, he will hit something he did not intend to hit, which may be an innocent bystander.
Does the state want rifles that are less accurate? No and yes. The State wants rifles that are less accurate during rapid firing because rapid firing, it is claimed, correlates with criminal use. And there is no need for rapid firing for self-defense, according to the Attorney General. The Attorney General argues that the features prohibited by § 30515 are characteristic of military weapons and military weapons are designed to be accurate with rapid firing. Perhaps. But that a civilian rifle has design features similar to a military rifle does not detract from its constitutional protection for self-defense. At the same time, it actually enhances a firearm's constitutional protection for militia readiness. The exception to this rule for civilian self-defense is a weapon's ability to fire in full-automatic mode. The ability to fire fully automatic is, above everything else, what distinguishes an M-16 from an AR-15-type semi-automatic civilian rifle. See Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). But the M-16 was modified to allow for burst and single
The home defending victims described earlier needed to rapidly fire their modern rifles and needed to fire them accurately at their attackers. Pls. Exhs. 1-1 through 1-7. For home defense, accuracy is always important, not only for hitting an attacker, but also for hitting only an attacker. Emanuel Kapelsohn testified,
The AR-15 type rifle is an accurate gun. And it can be fired repeatedly, if need be, more rapidly than a bolt action or lever action rifle.
b. The featured vs. featureless AR-15 video
One video in evidence is particularly interesting. In this short video, two AR-15 type rifles were fired repeatedly and reloaded with a detachable magazine at a target in daylight. One rifle had all of the prohibited features prohibited by AWCA in § 30515(a). The other rifle was a "featureless" California-legal variety of AR-15 rifle.
The video demonstration raises questions. The State says that a modern rifle without the prohibited features works just fine. Since the features are just cosmetic, then there is no burden on Second Amendment rights. The Plaintiffs say that if a modern rifle without the prohibited features is just as lethal, the State's ban of rifles with the features is pointless. The Plaintiffs say that if what the state labels "combat-oriented features" have no effect, then they are not really combat-oriented features. The ban fails to achieve its purpose of prohibiting a "more lethal" firearm. The State says the features are not
In the end, the Court finds that the prohibited features do not change an AR-15 rifle from a benign weapon into an "incredibly effective killing machine." Another commonly espoused myth is that the caliber of these centerfire semiautomatic weapons are more lethal. In fact, the evidence proves otherwise. The usual ammunition for an AR-15, the .223/5.56 round, is designed to cause wounding, much more than death. Dr. Margulies, M.D., testified that the 5.56 round was a NATO choice to inflict non-lethal wounds. He explained that using the 5.56 round designed for wounding rather than killing furthered a military goal of reducing the enemy fighting force by diverting healthy enemy soldiers to caring for its wounded soldiers.
c. The disproportionality bromide
The Attorney General stresses the notion that modern rifles are disproportionally used in crime. Defs. Memo at 18. It seems like it could be true, but it is not supported by the evidence. More important is understanding that disproportionality is not a constitutional test. Heller and McDonald demonstrate the opposite is true. The Court struck down bans on handguns in the District of Columbia and Chicago at a time when handguns were disproportionately used in crime. Heller, 554 U.S. at 697-98, 128 S.Ct. 2783 (Breyer, J., dissenting) ("From 1993 to 1997, 81% of firearm-homicide victims were killed by handgun.... Handguns also appear to be a very popular weapon among criminals. In a 1997 survey of inmates... 83.2% of state inmates and 86.7% of federal inmates said that they were armed with a handgun."). By comparison, modern rifles are not used in crime nearly as often as handguns.
If use by criminals could justify a weapon's ban, it would amount to something like a disfavored "heckler's veto." We might call it the "criminal's veto." See e.g., Santa Monica Nativity Scenes Comm. v. City of Santa Monica, 784 F.3d 1286, 1292-93 (9th Cir. 2015) (explaining "heckler's veto" doctrine) ("If speech provokes wrongful acts on the part of hecklers, the government must deal with those wrongful acts directly; it may not avoid doing so by suppressing the speech."). Just as a heckler's veto wrongly punishes persons who speak their ideas, California's ban punishes persons who choose modern rifles for home defense. In other words, if modern rifles are misused in crime (even disproportionately), government must deal with those wrongful acts directly; it may not deal with the problem by suppressing the rights of law-abiding citizens to have modern
Moreover, there is little evidence that modern rifles are used disproportionately in crime. The Attorney General cites the 1994 Congressional House Report as evidence. Defs. Mem., at 18. The House Report actually said that assault weapons were "a growing menace to our society of proportion to their numbers," rather than out of proportion to their numbers. Defs. Exh. J, at 13 (emphasis added).
To sell the disproportionality bromide, the Attorney General also cites its expert, Professor Louis Klarevas.
The Attorney General takes one more shot at it by citing another expert, Professor John Donohue.
In fact, Koper finds quite the opposite to be true. In his landmark 2004 report, Koper surveyed national data and found, "the estimates consistently show that AWs [assault weapons] are used in a small fraction of gun crimes," and "most survey evidence on the actual use of AWs suggests that offenders rarely use AWs in crime."
As to their presence in mass shootings, even Koper has explained that the highest correlation is with the presence of large capacity magazines, as opposed to the presence of assault weapons. According to his 2020 study, Koper says, "[i]n summary, growing evidence suggests LCM restrictions reduce mass shootings and are more potent than AW-only restrictions. Nonetheless, the evidence is not yet sufficient to draw definitive conclusions."
Recall that to pass intermediate scrutiny, AWCA must have at least been designed to address a real harm and alleviate the harm in a material way. Turner II, 520 U.S. at 195, 117 S.Ct. 1174. The evidence described so far proves that the "harm" of an assault rifle being used in a mass shooting is an infinitesimally rare event. More people have died from the Covid-19 vaccine than mass shootings in California. Even if a mass shooting by assault rifle is a real harm, the evidence also shows that AWCA's prohibited features ban has not alleviated the harm in any material way. Perhaps recognizing AWCA's constitutional infirmity, the Attorney General attempts to draw attention away from the statute's small aim and maintains that citizens do not "need" more than 2.2 shots for self-defense, so AWCA's constitutional burden is mostly hypothetical.
d. The myth of 2.2 shots
The Attorney General offers the old saw that large capacity magazines and accurate
Where does this 2.2 shots myth originate? According to a 2018 study by Professor Koper (evidence introduced by the Attorney General), "there is no national or state data source that captures information on shots fired in gun attacks."
The 2.2 shots notion comes from the State's expert, Lucy Allen. Allen is an expert in economics and statistics.
Here are the details. Allen claims she has determined the average number of rounds fired by an individual in a defensive gun use.
Her methodology with the Factiva database is incomprehensible. For the Factiva database of 70 million news stories, her word search returned 35,000 stories.
It is a mystery how 4,800 stories were determined to be the universe of reports on self-defense with a firearm in the home. In her deposition, she was not asked about the 4,800 stories. Also, Allen s no
Allen's calculations also include other curiosities. To arrive at her average of 2.2 shots, she includes in the averages those events where no shots were fired,
Allen also used something called the Armed Citizen Database. That database is problematic because it is not really a database but a list of published magazine stories. First, the database compilers make no attempt to record all events or statistically representative events. Second, Allen has no direct knowledge of how editorial decisions are made for including or excluding a particular story.
Allen's 2.2/2.1 shot averages are suspect for larger reasons. The whole statistical exercise is based on news reporting rather than police reports. A database of news articles lacks the usual indicia of accuracy and reliability of admissible evidence. Professor Koper observed that there exists no national or state database of defensive gun uses or database of the number of shots fired during self-defense events. But there are surely large numbers of such events each year. According to fifteen national polls conducted by non-law enforcement agencies, there may be from 760,000 defensive handgun uses to 3.6 million defensive uses each year.
On the other side, a fully loaded modern rifle is surely a powerful psychological criminal deterrent. Simply brandishing such a weapon may cause an intruder to flee precisely because it appears to be dangerous and fully loaded. It is difficult to imagine the same psychological effect on a home invader (or two invaders) from brandishing a 2-shot derringer. It is a reasonable inference that the visual threat presented by a homeowner holding a modern rifle with a large magazine makes it an effective deterrent without firing a shot.
All considered, Allen's opinion about the number of shots fired in self-defense is entitled to little weight and fails the scientific method.
e. You don't need more than 2.2 shots and you don't need seat belts or smoke detectors
The Attorney General remonstrates that whatever the precise average number is, "it is extraordinarily relevant because it shows that the burden on the core right is minimal."
According to the United States Department of Justice, it is estimated that 3,700,000 burglaries occur each year in the United States.
For some citizens, a modern rifle is their first choice to prepare for home defense when this year's 3,700,000 burglaries take place.
f. Modern rifles and mass shootings
"So, the State here is concerned about the configuration of particular arms that have been proven to be the most lethal in mass shooting situations, and that's what the evidence shows." Deputy Attorney General Echeverria, preliminary injunction hearing (10/19/20), at 188. Allen also opines about a correlation between modern rifles and mass shootings. The specter of a mass shooting with a modern rifle is really the driving force behind the state's prohibition on AR-15s and the like.
On cue, Allen uses her private database of news articles to identify a correlation between mass shootings and modern rifles. As of December 2019, Allen identifies 161 mass shootings.
More recent events can account for 13 of the additional cases in the current tally of 161, but there is something else odd going on with the counting. By comparing her 2019 declaration in this case to her 2018 declaration in Rupp v. Becerra, many unexplained changes are evident. Sixteen events have been removed.
No one can blame Allen too much for her changing tallies of "mass shootings." The problem is a disagreement over the definition of a "mass shooting" combined with the lack of a reliable database maintained by a disinterested organization or governmental entity.
Professor Louis Klarevas counts 103 gun incidents since 1980.
i. The national experience
Analyzing the list of 161 national events, Allen finds that 78% of mass shooting events did not involve an assault weapon. Put differently, across the U.S. only 22% did involve an assault weapon.
ii. The California experience
From Allen's list of mass shooting events, it is reported that in California there have been 25 mass shooting events over approximately 40 years.
To summarize, the average rate of mass shootings with assault weapons in California has not changed in the thirty years since the assault weapon ban was enacted. Moreover, for all mass shooting events, assault weapons are used only either 8.25% (Gius), 10.3% (Koper), or 22% (Allen), of the time.
Furthermore, perspective is important. Contrary to public misinformation, mass shooting events are rare events. In contrast, as stated previously, there were 3.7 million burglaries per year in the years 2003 to 2007, 266,560 people suffered a violent victimization, 23,310 persons, or 9% of those victims, suffered serious injury, and approximately 7,700, or 3% of those victims, were raped. During the same years, there was less than one mass shooting with an assault weapon per year. According to Allen's list, the total number of persons, killed or injured, during all mass shooting events with an assault weapon during the years of 2003 to 2007 was 38.
Had laws been in place that prevented acquisition of assault weapons during the years 2003 to 2007, 38 people may have been spared being shot with an assault weapon (although they may or may not have been shot with a non-assault weapon). In contrast, during the same five years, 7,700 women may not have been raped and 266,560 homeowners may not have suffered a violent victimization during the burglary of their homes had they been armed with an assault weapon. Imagine calculating these figures over thirty years. Of course, many victims do not choose to own a modern rifle. And though victimized once, some may still choose not to arm themselves against future home invaders. The Constitution does not force citizens to arm themselves for their own protection. But it does protect the liberty and freedom of those who choose to do so.
Today, an assault weapon ban that trenches on the rights of 266,560 citizens to protect themselves from violent assault in their homes by criminalizing acquisition and possession of a common firearm that they might deem best for their defense, balanced against possibly reducing the shooting risk to 38 people, is lopsided.
g. Assault weapon wounds — are they worse?
The Attorney General argues that victims of assault weapons generally suffer
First, as Kraut's video demonstrates, the injuries from firearms like the AR-15 which are banned as "assault weapons" are no different from other firearms that are common and lawful to own. Second, there is no difference in the lethality or accuracy or firing capacity between a "featureless" AR-15 and a banned AR-15. Dr. Robert A. Margulies, M.D., has unusually impressive credentials. He has practiced emergency medicine for more than 50 years. For 24 years he served in active duty in the U.S. Navy including combat experience or the front lines of conflict. Dr. Margulies also currently serves as a sworn reserve police officer and a certified police firearms instructor.
Without first knowing what ammunition was used, one can only generally categorize a bullet wound. According to Dr. Margulies, "looking at a gunshot wound, one is able to determine during the treatment of that wound that it was either, relatively speaking, a low-velocity or a high-velocity injury. You couldn't tell the difference between a nine-millimeter and a .45 ACP injury just from looking at the injury; you couldn't tell the difference between a 5.56 × 45 or a 7.62 × 39 [by] simply looking at the injury. You could determine that one came from a higher velocity cartridge than from a lower velocity cartridge."
As an emergency room physician, Dr. Margulies says, "[f]or me to talk about a wound, I have to know the cartridge, the bullet, the barrel, the distance and the point of impact. It's going to make a lot of difference if it strikes somebody in the shoulder or strikes them in the middle of the forehead. So I have to know all those things. It's not going to make any difference to me treating the patient if it came from a bolt-action .223 or it came from a semiautomatic AR-15."
To summarize the medical evidence, the severity of a gunshot injury depends on many things, perhaps the most important of which is the cartridge used and the velocity of the bullet. Bullets achieve much higher velocities from long rifle barrels than short handgun barrels. A modern rifle like the AR-15 platform rifle typically uses lower power cartridges than either military rifles or hunting rifles. While there are exceptions, for purposes of the state regulation it does not matter. This is confirmed by the Attorney General's own evidence. As set forth by Vincent J.M. DiMaio, M.D., in the authoritative work Gunshot Wounds, Practical Aspects of Firearms, Ballistics, and Forensic Techniques, 3d, CRC Press (2016), the wounds from assault rifles are less severe than hunting rifles. Dr. DiMaio explains,
Section 30515(a) does not ban rifles based on whether a firearm is chambered for high-velocity or low-velocity rounds. It
h. Stray bullets piercing walls and striking bystanders?
Some say that a bullet fired from an AR-15 in self-defense could penetrate a wall and strike a bystander.
For example, Plaintiffs' expert Emanuel Kapelsohn testified in a deposition on January 8, 2021 that he had done demonstrations with various rounds fired at walls of drywall and lumber. He testified that the wall penetrating capability of a .223 or 5.56 round depends more on the construction of the projectile than the particular firearm firing the round.
i. Blake Graham, Assistant Director, Cal. D.O.J. Bureau of Firearms
The Attorney General introduced testimony from another witness worth noting. Mr. Blake Graham is the Assistant Director of the California Department of Justice Bureau of Firearms.
Graham's opinions on ammunition are less convincing. For example, he says that centerfire rifles generally use rounds that are associated with increased lethality.
Graham also opines on magazines. However, his opinions there lack precision. For example, he opines that a detachable magazine "allows the shooter to rapidly exchange a depleted magazine with a fully loaded one, enabling a shooter to fire a large number of rounds near-continuously." It is an overgeneralization. A trained and composed shooter with a gun and two 75-round magazines may well be able to fire many rounds near-continuously. An untrained homeowner awoken in the night, having a pistol, two 10-round magazines, and surging adrenaline, may not be able to
Graham says he researched several mass shootings. But two shootings took place before he worked for the State. Thirteen shootings occurred beyond the boundaries of California. Two shootings took place beyond the Northern Hemisphere.
Put simply, the evidence indicates gun bans are ineffective at reducing gun crimes. Plaintiffs' expert, economist John R. Lott, Jr., opines that "all credible evidence shows that assault weapon bans have little to no effect in reducing mass shootings, homicides, or violent crime in general."
B. Decisions of Other Courts
The Attorney General's position is that AWCA does not severely burden Second Amendment rights. After all, assault weapons are supposedly uncommon and unusually dangerous, there are other guns available, and only 2.2 shots are needed for self-defense so any gun will do. Better to have a state citizenry armed with microstamping Saturday Night Specials than accurate AR-15s. Since the constitutional burden is mild, intermediate scrutiny will be satisfied. How can one argue with every other federal circuit court to have considered assault weapon restrictions?
In the past, Second Amendment cases were wrongly decided by following a majority of circuit courts down the wrong path. That is what happened in 1996 when the Ninth Circuit erroneously decided that
1. Wilson v. Cook County
The Attorney General first cites Wilson v. Cook Cnty., 937 F.3d 1028, 1036 (7th Cir. 2019). Wilson was not decided on facts or evidence. Wilson was dismissed at the outset because an earlier Seventh Circuit decision was controlling, i.e., Friedman v. City of Highland Park, Ill., 784 F.3d 406, 412 (7th Cir. 2015).
2. Friedman v. City of Highland Park, Illinois
Friedman looked at facts, however, it did not apply intermediate scrutiny, as the Attorney General's citation suggests. Friedman asked a question: "instead of trying to decide what `level' of scrutiny applies, and how it works, we think it better to ask whether a regulation bans weapons that were common at the time of ratification or that have `some reasonable relationship to the preservation or efficiency of a well regulated militia,' and whether law-abiding citizens retain adequate means of self-defense." 784 F.3d at 410.
That is a reasonable question. But Friedman did not rely on the answer. Friedman ultimately upheld municipal assault weapon bans because it was a permissible experiment and good for the community psyche. Id. at 412 ("If a ban on semiautomatic guns and large-capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that's a substantial benefit.").
It is worth pointing out, however, that along the way, Friedman made some observations that this Court makes today: that "perhaps 9% of the nation's firearms owners have assault weapons," and that assault weapons "generally are chambered for small rounds ... suggest[ing] that they are less dangerous per bullet." 784 F.3d at 409. Friedman also observed, as does this Court, that assault weapons can work well for self-defense. "True enough, assault weapons can be beneficial for self-defense because they are lighter than many rifles and less dangerous per shot than large caliber pistols or revolvers. Householders too frightened or infirm to aim carefully
3. Worman v. Healey
The Attorney General next cites Worman v. Healey, 922 F.3d 26, 35 (1st Cir. 2019). In Worman, the district court and the First Circuit side-stepped answering the question of commonality while noting that (as of 2013) nearly 5,000,000 people owned at least one assault weapon. 922 F.3d at 36 ("[W]e are reluctant to plunge into this factbound morass."). The case was decided on summary judgment rather than by trial. In some respects, the record evidence in Worman was different. Worman said assault weapons can fire through walls and risk the lives of those in nearby apartments of streets. 922 F.3d at 37. By contrast, according to the evidence in this case, handgun rounds are more likely to fire through walls than typical.223/5.56 AR-15 rounds, and AWCA's ban is not based on particular calibers. More importantly, Worman noted that there was no evidence in its case about "even a single example of use of an assault weapon for home defense." The missing evidence in Worman is present in this case. As mentioned earlier, an AR-15 was used by a pregnant wife and mother to defend her family from two armed, hooded, and masked home invaders. Pls. Exh. 1-1; see also Pls. Exhs. 1-2, 1-3, 1-4, 1-6, 1-7. Finally, the Worman court unpersuasively rejected the main argument that the forbidden assault weapons were ideal for domestic self-defense by pronouncing the assertion "too facile by half" without explaining what it meant.
4. Kolbe v. Hogan
The Attorney General next cites Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc). Kolbe went its own direction and concluded that assault weapons are so much like M-16 machineguns that they lay outside the ambit of the Second Amendment. In Kolbe, the court wrote, "[w]e conclude ... the banned assault weapons ... are not protected by the Second Amendment." 849 F.3d at 121. As the dissent put it, "our court today has adopted an ad hoc analysis that excludes a weapon from Second Amendment protection if it appears to be `like' an M-16 or `most useful in military service.' Under this approach, it is irrelevant that a firearm may have been commonly possessed and widely accepted as a legitimate firearm for law-abiding citizens for hundreds of years." 849 F.3d at 156 (Traxler, J., joined by Niemeyer, J., Shedd, J., and Agee, J., dissenting).
Kolbe's conclusion is unpersuasive. An AR-15 rifle may be like an M-16 machinegun in many ways, but the single major difference is also legally determinative. Staples, 511 U.S. at 611, 114 S.Ct. 1793 (observing that AR-15s traditionally have been widely accepted as lawful possessions and distinguishing between the semiautomatic AR-15 and a fully automatic machinegun);
In the alternative, Kolbe found that the state regulation did not impose a severe burden and applied intermediate scrutiny. 849 F.3d at 138. The burden was not severe, according to Kolbe, because citizens were free to protect themselves with a plethora of other firearms. 849 F.3d at 138. Once again, the jurisprudence of firearm alternatives is at odds with Heller.
Kolbe also deemed the burden not severe because, like the summary judgment record in Worman, there was "scant evidence in the record" that the banned assault rifles were possessed "or even suitable" for self-protection. 849 F.3d at 138. Once again, unlike both Kolbe and Worman, the trial record before this Court has opinion testimony and a number of examples in evidence of AR-15 type rifles being useful and used in self-defense. Whatever was missing from the summary judgment record in Kolbe, it is not the case today in this California trial.
5. N.Y. State Rifle & Pistol Association v. Cuomo
The Attorney General next cites N.Y. State Rifle & Pistol Association v. Cuomo, 804 F.3d 242 (2d Cir. 2015). That decision applied intermediate scrutiny after deciding that New York and Connecticut laws imposed a burden that was not severe. 804 F.3d at 260. The Second Circuit also relied heavily on the jurisprudence of firearm alternatives. In fact, the single reason given for finding the burden not severe was because of the notion that "numerous `alternatives remain for law-abiding citizens to acquire a firearm for self-defense.'" 804 F.3d at 260 (quoting U.S. v. Decastro, 682 F.3d 160, 168 (2d Cir. 2012). Curiously, although the decision relied on it, the Second Circuit's Decastro decision was not about a ban on assault weapons or any particular firearm. Decastro highlighted the opposite situation. The court said that 18 U.S.C. § 922(a)(3) does not substantially burden the right to keep and bear arms because "it does nothing to keep someone from purchasing a firearm in her home state, which is presumptively the most convenient place to buy anything." 682 F.3d at 168. Decastro, in turn, relied on Nordyke v. King, 644 F.3d 776 (9th Cir. 2011), on reh'g en banc, 681 F.3d 1041 (9th Cir. 2012).
Nordyke, unsurprisingly, decided merely that a ban on gun shows at county-owned fairgrounds did not substantially burden the right to keep and bear arms. Nordyke found the fairgrounds-gun-show-ban left open regular avenues for buying a firearm. 644 F.3d at 787 (citing United States v. Marzzarella, 595 F.Supp.2d 596, 606 (W.D. Pa. 2009), aff'd, 614 F.3d 85, 95 (3d Cir. 2010)). Nordyke, at bottom, relied on Marzzarella. Marzzarella unsurprisingly held that 18 U.S.C. § 922(k) is constitutional because it bans only firearms with obliterated serial numbers and "leaves open ample opportunity for law-abiding citizens to own and possess guns." 595 F. Supp. 2d at 606.
The jurisprudence of firearm alternatives has surely drifted far away from Heller. Heller said, in 2008, that it is "no answer to say ... that it is permissible to
Today, the Attorney General goes beyond N.Y. State Rifle & Pistol and suggests that intermediate scrutiny should permit a class-wide ban on extremely popular assault rifles, assault shotguns, and assault handguns, in addition to an existing ban on buying any handgun not found on a shrinking list under California's "handgun roster" of "safe" handguns, because some alternatives remain. This is too far.
6. Heller v. District of Columbia (Heller II)
The last circuit decision cited by the Attorney General is Heller II, 670 F.3d 1244. Decided on summary judgment, Heller II upheld prohibitions on assault rifles finding the burden to be insubstantial. Heller II accepted as fact that assault rifles are in common use. 670 F.3d at 1261. But on the summary judgment record before it, the court could not be certain "whether these weapons are commonly used or are useful specifically for self-defense or hunting." 670 F.3d at 1261. The Heller II court explained, "[a]lthough we cannot be confident the prohibitions impinge at all upon the core right protected by the Second Amendment, we are reasonably certain the prohibitions do not impose a substantial burden upon that right ... [because] the plaintiffs present hardly any evidence that semi-automatic rifles ... are well-suited to or preferred for the purpose of self-defense or sport." 670 F.3d at 1262. Since District of Columbia residents were still permitted to possess a handgun or a "non-automatic long gun," Heller II agreed with Marzzarella (the obliterated serial number case) that the burden on Second Amendment rights was insubstantial and thus deserving of no more than the lower intermediate scrutiny. 670 F.3d at 1262.
One problem with relying on Heller II is that the California statutes go much further in the kinds of firearms banned. Section 30515(a) also criminalizes possession of certain semi-automatic pistols. Even Heller II conceded that a ban like that may be unconstitutional. "A narrower prohibition, such as a ban on certain semi-automatic pistols, may also `fail constitutional muster,' but that question has not yet been decided by the Supreme Court." 670 F.3d at 1267 (appendix) (quoting Heller, 544 U.S. at 628, 128 S.Ct. 2783). As noted in the dissent, Heller II drifted far away from Heller. "The majority opinion here is in uncharted territory in suggesting that intermediate scrutiny can apply to an outright ban on possession of a class of weapons that have not traditionally been banned." 670 F.3d at 1285 (Kavanaugh, J., dissenting).
To sum up, in the Seventh Circuit, Wilson was simply bound by Friedman, and Friedman did not apply intermediate scrutiny. In the First Circuit, Worman lacked record evidence of use or usefulness of assault rifles for self-defense. In the Fourth Circuit, Kolbe decided a rifle like the AR-15 was like the M-16 machinegun and therefore outside the ambit of the
None of the out-of-circuit decisions comfortably fit this case. None of the cases went to trial. None of the cases had substantial evidence that AR-15 type rifles are useful and used by law-abiding citizens for lawful purposes like home-defense and sporting competition. None of the cases considered an AR-15's militia use. None of the cases scrutinized a statute like California's § 30515 that bans assault rifles, assault shotguns, and assault pistols, while at the same time prohibiting the sale of all potentially alternative handguns not included on the State's shrinking handgun roster. See Calif. Pen. Code § 31910(b)(7); §§ 32000 et seq.; see also Renna, Case No. 20cv2190-DMS, Dkt. # 17 Order (filed 4/23/21) (describing California's shrinking handgun roster where three guns are dropped for every gun added). Perhaps intermediate scrutiny is still required under our Ninth Circuit precedents, but not because the out-of-circuit decisions are similar to this case.
7. Rupp v. Becerra
The Central District of California rejected a similar challenge to AWCA's ban on assault weapons because, like Kolbe, it decided on summary judgment that AR-15s are "virtually indistinguishable from M-16s." Rupp v. Becerra, 401 F.Supp.3d 978, 988 (C.D. Cal. 2019), appeal pending, Appeal No. 19-56004. That conclusion would be unsupported by the trial record here, unless one accepts the overgeneralization that all semiautomatics are "virtually indistinguishable" from all automatic machineguns. Rupp decided alternatively that intermediate scrutiny should be applied because of the alternative-guns-remain canard. Id. at 989 ("AWCA does not severely burden the core of the Second Amendment right because individuals `remain free to choose any weapon that is not restricted by the AWCA or another state law.'"). Rupp also unfairly discounts the evidence that 30% of modern rifle purchases are made for self-defense by placing too much emphasis on purchases for recreational target shooting. Id. ("[W]hile individuals may sometimes purchase assault rifles for self-defense, it is not the primary purpose for doing so."). Both purposes are lawful and the ban burdens both. It is not convincing to say that stifling one's need to have a tool chosen 30% of the time for self-defense is not a severe burden on the core constitutional right of self-defense.
In any event, the AR-15 is not like the M-16 because one is a fully automatic machinegun and one is not. There is testimony in this case that an AR-15 may fire rounds at speeds up to five to seven rounds per second. Each round requires a finger trigger pull for each round. The AR-15 has no minimum rate of fire. Consequently, the AR-15 type rifle may be fired slowly or up to a hypothetical maximum rate of 300 to 420 rounds per minute, assuming no pause for reloading (which by itself is a purely unrealistic hypothetical assumption). Compare this to "[a] modern machine gun [that] can fire more than 1,000 rounds per minute, allowing a shooter to kill dozens of people within a matter
In fact, almost all of the negative aspects of the prohibited modern rifles, like faster firing, are shared with Second Amendment-protected semiautomatic rifles like the Sturm Ruger Mini 14 and pistols like the Springfield Armory 1911. For example, the Attorney General asserts that "detachable magazines enhance the ability of a semiautomatic firearm to fire a large number of rounds quickly, by eliminating the need to reload each round."
The point is that most of what the Attorney General says are dangerous features on a prohibited modern rifle are also features on a Second Amendment-protected semiautomatic pistol. The Ruger Mini 14 is not banned by AWCA but it is capable of shooting the same ammunition, at the
C. Militia Use
1. Banning the Ideal Arm for Militia Use Fails Intermediate Scrutiny
The Attorney General does not address or acknowledge whether the ban also imposes a burden on the Second Amendment right to own a firearm that is the ideal weapon for use in the militia. If the modern rifle is the ideal weapon, which it is according to the testimony of General Youngman, then the ban forces a choice of a less-than-ideal weapon for militia use. That may not be a severe burden today when the need for the militia is improbable. One could say the same thing about the improbable need for insurance policies. The point is, neither the Attorney General nor current court decisions address the level of scrutiny to employ where a regulation burdens the Second Amendment right to keep and bear arms for militia service. This Court assumes that for intermediate scrutiny, the "fit" of a total ban is judged on its application to all aspects of exercising the Second Amendment right: home defense, militia use, sporting competitions, hunting, target practice, and other lawful uses.
The concept of the citizens' militia, as protected by the Second Amendment, is an informal assembly of able-bodied, ordinary citizens acting in concert for the security of our nation. Heller, 554 U.S., at 600, 128 S.Ct. 2783 ("citizens' militia" is a safeguard against tyranny). "[T]he Militia comprised all males physically capable of acting in concert for the common defense." Heller, 554 U.S., at 595, 128 S.Ct. 2783. There are at least two reasons why the militia is thought to be necessary to the security of a free country. First, it is useful in repelling invasions. Second, "when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny." Heller, 554 U.S., at 597-98, 128 S.Ct. 2783. For service in the citizens' militia, one is expected to bring for action a commonly used firearm such as a gun used for self-defense at home or for hunting game. "Ordinarily when called for militia service able-bodied men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Miller, 307 U.S., at 179, 59 S.Ct. 816. "[W]eapons used by militiamen and weapons used in defense of person and home were one and the same." Heller, 554
In this case, the evidence overwhelmingly shows that AR-15 platform rifles are ideal for use in both the citizens' militia and a state-organized militia. Quite apart from its practicality as a peacekeeping arm for home-defense, a modern rifle can also be useful for war. In fact, it is an ideal firearm for militia service. Major General D. Allen Youngman, U.S. Army (retired)
He describes three tiers of militia service. General Youngman testified that a state may or may not have a statute authorizing a state defense force. California does have a state defense force of approximately 1,000 members. During World War II, California used a state defense force much larger than 1,000 to secure critical infrastructure. For this type of militia use, the AR-15 "would be absolutely the perfect weapon for the individual member of that force to be equipped for — for a variety of missions to include infrastructure protection and ones like that."
2. Why the AR-15 Type Rifle is Ideal for Militia Readiness
The "AR-15 pattern of rifle, with its highly standardized and interchangeable component parts, is a firearm not just well-suited, but ideal for militia service."
"For example," says General Youngman, "AR-15 rifles can interchange trigger mechanisms, bolt and locking components, barrels, magazines, buttstocks, optical sights, bayonets, and other assorted furniture, with few specialized tools. Further, even if two AR-15s might be set up for vastly different uses (for example, long-range versus short-range engagement), the majority of wearable components remain interchangeable."
Moreover, for militia use the low cost is an ideal factor "because we would be asking individuals to acquire and maintain their own in the absence of being issued a weapon. The AR-15 is a very affordable system for the average citizen who might be a member of the militia."
A detachable magazine is "absolutely essential" for militia use. Youngman explains, "[b]ecause in a militia setting ... you need the ability to change magazines expeditiously rather than having to manually reload rounds into the — into the firearm." A firearm that has an overall length of 30 inches would be useful in militia service because of its increased maneuverability particularly for urban operations. The overall military is going in the direction of a 16-inch barrel rather than the older longer models.
Youngman's testimony is uncontroverted. Youngman is very well qualified to opine on the usefulness of an AR-15 for militia use. He has served in the regular army and the army reserves. He served as Kentucky's Adjutant General commanding the state's national guard. He is a firearms trainer and armorer. He was a member of the bar and worked as a prosecutor. His opinion that an AR-15 is an ideal firearm for use in a militia is unequivocal and uncontested. Of the prohibited features in § 30515(a), most are important for militia use.
"Heller recognized that militia members traditionally reported for duty carrying `the sorts of lawful weapons that they possessed at home,' and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon's suitability for military use." Caetano, 136 S. Ct. at 1032 (Alito, J., concurring) (citing Heller, 554 U.S., at 627, 128 S.Ct. 2783). Owing much to the commonality of its ownership, as well as its features and characteristics, the AR-15 is a modern rifle that is suited for use in the militia. Because it is a weapon of light warfare that is commonly owned, commonly trained, with common characteristics, and
Some courts have coined the AR-15 a "weapon of war." E.g., Kolbe, 849 F.3d at 124. Some courts have concluded that because the AR-15 is most useful in military service, it is not protected by the Second Amendment. See, e.g., Worman v. Healey, 293 F.Supp.3d 251, 266 (D. Mass. 2018) (AR-15s are most useful in military service, therefore they are beyond the scope of the Second Amendment). Some courts have reasoned that an M-16 is most useful in military service and thus can be banned and that the AR-15 is "like" the M-16 so it also can be banned. See, e.g., Rupp, 401 F. Supp. 3d at 987 ("the Court agrees with Kolbe's conclusion that `AR-15-type rifles are "like" M16 rifles under any standard definition of that term.'").
But Miller held that it is precisely this type of firearm — a firearm that has a reasonable relationship to militia service — that is protected by the Second Amendment. It is a principle that Heller grasped. "This holding [of Miller] is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that `have some reasonable relationship to the preservation or efficiency of a well regulated militia'"). Heller, 554 U.S. at 622, 128 S.Ct. 2783; see also Lewis v. United States, 445 U.S. 55, n.8, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) ("the Second Amendment guarantees no right to keep and bear a firearm that does not have `some reasonable relationship to the preservation or efficiency of a well regulated militia.'") (quoting Miller, 307 U.S., at 178, 59 S.Ct. 816); Wilson v. Cook County, 937 F.3d 1028 (7th Cir. 2019) ("We, however, attempted to evaluate the Highland Park Ordinance in more `concrete' terms by asking: `whether a regulation bans weapons... that have "some reasonable relationship to the preservation or efficiency of a well regulated militia," and whether law-abiding citizens retain adequate means of self-defense.'"); Miller v. Sessions, 356 F.Supp.3d 472, 478 (E.D. Pa. 2019) ("In 2008, sixty-nine years after it last revisited the Second Amendment, the Supreme Court ultimately held that in addition to `preserving the militia,' the Second Amendment guarantees an individual right to keep and bear arms."); but see Hatfield v. Sessions, 322 F.Supp.3d 885, 889 (S.D. Ill. 2018), rev'd on other grounds sub nom., Hatfield v. Barr, 925 F.3d 950 (7th Cir. 2019) ("Another case jumps the ship and asks if the challenged regulation has `some reasonable relationship to the preservation or efficiency of a well regulated militia,' a test which contradicts Heller itself.").
The Attorney General does not agree that the militia clause can put the brakes on the state's power to ban arms that are ideal for militia use. But the militia clause informs the full understanding of the right. "The militia clause helps us understand the contours of the Second Amendment. After Heller, the prefatory clause may not dictate the content of Second Amendment rights, but neither is it irrelevant to it." Young v. State of Hawaii, 992 F.3d 765, 825 (9th Cir. 2021) (en banc). Forty-four of the fifty states have a Second Amendment analogue and most have a clause referring to the militia and the right to defend self and state. Id. at 816 (collecting provisions).
445 F.Supp.3d 902, 929 (S.D. Cal. 2020), appeal stayed, Appeal No. 20-55437. Major General Youngman did not address the utility of other modern rifles, such as the semiautomatic AK-47, for militia use. The evidence is clear, however, that the AR-15 type of modern rifle bears a reasonable relationship to the preservation and efficiency, as well as the effectiveness, of a modern well-regulated militia. It is therefore categorically protected by the Second Amendment.
3. Citizen Militias are not Irrelevant
Before the Court there is convincing and unrebutted testimony that the versatile AR-15 type of modern rifle is the perfect firearm for a citizen to bring for militia service. A law that bans the AR-15 type rifle from militia readiness is not a reasonable fit for protecting the Second Amendment right to keep and bear arms for the militia. It has been argued that citizens with nothing more than modern rifles will have no chance against an army with tanks and missiles. But someone forgot to tell Fidel Castro who with an initial force of 20 to 80 men armed with M-1 carbines, walked into power in Havana in spite of Cuba's militarized forces armed with tanks, planes and a navy. Someone forgot to tell Ho Chi Minh who said, "Those who have rifles will use their rifles. Those who have swords will use their swords. Those
For this reason, state statutes ought to specifically preserve the right and ability of its law-abiding responsible citizens to acquire and possess such arms. But to purposefully criminalize acquisition and possession of an AR-15 type modern rifle, as California does, particularly because it would be useful in militia warfare, is contrary to one of the purposes of the Second Amendment and therefore displays no degree of fit.
D. Experiments
The Attorney General objects saying the government "must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems." Id. at 969-70 (quoting City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 52, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)). How long does the experiment go on and what are its limits? California has had more than a reasonable opportunity to experiment. In the face of the failed federal experiment California persists with its experiment. The facts found in this trial are that the California statute has not solved the problem of mass shootings or the shooting of police officers despite 40 years of testing.
E. Deference
The Attorney General maintains that under intermediate scrutiny, courts "afford substantial deference to the predictive judgments of the legislature." Pena v. Lindley, 898 F.3d 969, 979 (9th Cir. 2018) (quotation omitted). Deference makes sense when new problems arise and new solutions are needed. At some point it becomes clear whether a legislature's predicted solution is incorrect. At this point, in this case, is it clear that the California Legislature's predictions were incorrect when it passed AWCA in 1989 and amended AWCA in 1999. The demonstrably incorrect predictions are no longer entitled to judicial deference.
F. Selecting among alternatives
The Attorney General retreats to the principle that even when the record contains "conflicting legislative evidence," intermediate scrutiny "allow[s] the government to select among reasonable alternatives in its policy decisions." Id. (quotation omitted). The legislative record of AWCA makes clear that that respecting a citizen's constitutional right of armed self-defense was not among the considered alternatives — it was not a consideration at all. Likewise, a citizen's constitutional right to be prepared for armed militia service was not a considered alternative. The California Legislature did not choose among reasonable alternatives as none of the alternatives included protecting space for a citizen's Second Amendment rights.
The Attorney General argues that deferential review is particularly appropriate here because "the legislature is `far better equipped than the judiciary' to make sensitive public policy judgments (within constitutional limits) concerning the dangers in carrying firearms and the manner to combat those risks," quoting Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 97 (2d Cir. 2012). A legislature may be better equipped, but in the end, a legislature must also actually make those sensitive judgments and must make them within constitutional boundaries. However, the California Legislature made its AWCA policy judgment without protecting or considering a citizen's individual Second Amendment rights. Therefore, its judgment
G. No reasonable fit
The end of the road is here. AWCA fails intermediate scrutiny because it lacks a reasonable fit. It is a continuing failed experiment which does not achieve its objectives of preventing mass shootings or attacks on law enforcement officers. The evidence suggests it has made no difference at all. Where it has made a large difference is on the lives of numerous law-abiding citizens who would make, buy, and use these prohibited weapons for home defense and militia readiness, but for the threat of severe criminal punishments. A reasonable fit would, at the very least, include a broad exception for home defense. A reasonable fit would, at the very least, also recognize an exception for maintaining an AR-15 type rifle for militia readiness. But today there are no such exceptions. Thus, it burdens substantially more protected activity than is necessary to further the state's goals.
AWCA certainly falls under the more demanding standard of strict scrutiny. Narrow tailoring using the least restrictive means under strict scrutiny would go much farther and include specific exceptions for a person to acquire and possess an assault weapon for self-defense in other habitations such as a motorhome, houseboat, camping tent, and hotel room, and an exception for those unable to comfortably afford more than one firearm for self-defense to bear an assault weapon everywhere firearms are not prohibited. Narrow tailoring would include a safe-harbor provision for all home defense use, self-defense use in any non-sensitive place, hunting, sports, and all other lawful activities and militia readiness uses.
Perhaps there are better experiments that can be tried by the State to reduce mass shootings.
In the end, the Bill of Rights is not a list of suggestions or guidelines for social balancing. The Bill of Rights prevents the tyranny of the majority from taking away the rights of a minority. When a state nibbles on Constitutional rights, who protects the minorities? The federal courts. The Second Amendment protects any law-abiding citizen's right to choose to be armed to defend himself, his family, and his home. At the same time, the Second Amendment protects a citizen's right to keep and bear arms to use should the militia be needed to fight against invaders, terrorists, and tyrants. The Second Amendment is about America's freedom: the freedom to protect oneself, family, home, and homeland. California's assault weapon ban disrespects that freedom.
IV. CONCLUSION
Plaintiffs challenge California Penal Code §§ 30515(a)(1) through (8) (defining an "assault weapon" by prohibited features), 30800 (deeming certain "assault weapons" a public nuisance), 30915 (regulating "assault weapons" obtained by bequest or inheritance), 30925 (restricting importation of "assault weapons" by new residents), 30945 (restricting use of registered "assault weapons"), and 30950 (prohibiting possession of "assault weapons" by minors). It is declared that these statutes unconstitutionally infringe the Second Amendment rights of California citizens. These statutes and the penalty provisions §§ 30600, 30605 and 30800
You might not know it, but this case is about what should be a muscular constitutional right and whether a state can force a gun policy choice that impinges on that right with a 30-year-old failed experiment. It should be an easy question and answer. Government is not free to impose its own new policy choices on American citizens where Constitutional rights are concerned. As Heller explains, the Second Amendment takes certain policy choices and removes them beyond the realm of permissible state action. California may certainly conceive of a policy that a modern rifle is dangerous in the hands of a criminal, and that therefore it is good public policy to keep modern rifles out of the hands of every citizen. The Second Amendment stands as a shield from government imposition of that policy.
There is only one policy enshrined in the Bill of Rights. Guns and ammunition in the hands of criminals, tyrants and terrorists are dangerous; guns in the hands of law-abiding responsible citizens are better. To give full life to the core right of self-defense, every law-abiding responsible individual citizen has a constitutionally protected right to keep and bear firearms commonly owned and kept for lawful purposes. In early America and today, the Second Amendment right of self-preservation permits a citizen to "`repel force by force' when `the intervention of society in his behalf, may be too late to prevent that injury.'" Heller, 554 U.S. at 594, 128 S.Ct. 2783. Then, as now, the Second Amendment "may be considered as the true palladium of liberty." Id. at 606, 128 S.Ct. 2783 (citation omitted). Unfortunately, governments tend to restrict the right of self-defense. "[I]n most governments it has been the study of rulers to confine the right within the narrowest limits possible." Id. (citation omitted). Fortunately, no legislature has the constitutional authority to dictate to a good citizen that he or she may not acquire a modern and popular gun for self-defense.
V. TEMPORARY STAY
The Attorney General asked for a stay of any injunction pending appeal. A party seeking a stay must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of relief, that the balance of equities tip in his favor, and that a stay is in the public interest. Humane Soc'y of the United States v. Gutierrez, 558 F.3d 896, 896 (9th Cir. 2009), citing Winter v. NRDC, Inc., 555 U.S. 7, 19, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The Ninth Circuit has held that a likelihood of success per se is not an absolute requirement and that serious questions going to the merits can support issuance of an injunction. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1085 (9th Cir. 2014) (discussing the parallel preliminary injunction standard). Serious questions are "substantial, difficult and doubtful ... [and] need not promise a certainty of success, nor even present a probability of success, but must involve a fair chance of success on the merits." Republic of Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988).
Because this case involves serious questions going to the merits, a temporary stay is in the public interest. This declaration and permanent injunction are stayed for 30 days during which time the Attorney General may appeal and seek a stay from the Court of Appeals. After 30 days, the following Order will take full force and effect:
1. Defendant Attorney General Rob Bonta, and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order or know of the existence of this injunction order, are enjoined from implementing or enforcing the California Penal Code §§ 30515(a)(1) through (8) (defining an "assault weapon" by prohibited features), 30800 (deeming those "assault weapons" a public nuisance), 30915 (regulating those "assault weapons" obtained by bequest or inheritance), 30925 (restricting importation of those "assault weapons" by new residents), 30945 (restricting use of those registered "assault weapons"), and 30950 (prohibiting possession of those "assault weapons" by minors) and the penalty provisions §§ 30600, 30605 and 30800 as applied to "assault weapons" defined in Code §§ 30515(a)(1) through (8).
2. Defendant Attorney General Rob Bonta shall provide forthwith, by personal service or otherwise, actual notice of this order to all law enforcement personnel who are responsible for implementing or enforcing the enjoined statute. Within 10 days, the government shall file a declaration establishing proof of such notice. Alternatively, the parties may file a stipulation.
FootNotes
Likewise, California Penal Code § 30605(a) states, "Any person who, within this state, possesses any assault weapon ... shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170." The statutes do not specifically criminalize the buying or borrowing of an assault weapon, but the criminalization of selling, lending, and manufacturing impinges on a citizen's constitutional right to acquire these firearms for self-defense. "This acquisition right is protected as an `ancillary right' necessary to the realization of the core right to possess a firearm for self-defense." Renna v. Becerra, No. 20cv2190-DMS (DEB), 2021 WL 1597933, at *6 (S.D. Cal. Apr. 23, 2021) (quoting Teixeira v. County of Alameda, 873 F.3d 670, 677 (9th Cir. 2017)) (en banc) (core Second Amendment right "wouldn't mean much" without ability to acquire arms).
Although neither side addresses it, at some point the registration period will be re-opened for 90 days due to recent settlement agreement in Sharp v. Becerra, Case No. 2:18cv2317-MCE-AC, U.S. District Court for the Eastern District of California. See Order of Injunction and Consent Decree, filed 3/29/21. The Sharp case was brought after a flawed California registration system prevented many residents from registering their assault weapons. Allegedly, the online registration system was riddled with problems. Frequent glitches and computer crashes made weapons registration difficult. Memorandum and Order (filed 6/26/19), at 4. On the last day of the July 1, 2018 registration period the unregistered backlog had grown to 52,443 applications. Id.
Consider the case of Alan Bruce MacFarlane, a Vietnam veteran with limited mobility in one arm, who purchased a rifle at a California gun shop legally and then modified it with a prohibited adjustable stock and forward pistol grip to accommodate his disability. "Unbeknownst to him, he asserted, his modifications rendered the firearm an illegal assault weapon under California law." People v. Macfarlane, No. A141326, 2016 WL 3634286, at *1 (Cal. Ct. App. June 29, 2016).
A detachable magazine of any size along with a prohibited feature qualifies as an "assault weapon." Cal. Penal Code § 30515(a)(1), (4), (a)(7). Yet, detachable magazines are useful for self-defense and provide a person with the ability to re-load a semiautomatic firearm. If a person has a second magazine at hand that is already filled with loaded cartridges, he may remove the depleted magazine and re-insert another magazine fairly quickly. However, the idea that the ability to accept detachable magazines "provides the soldier with a fairly large ammunition supply and the ability to rapidly reload," as suggested by the Attorney General, is not relevant in the context of citizen self-defense. It is relevant, however, for considering AWCA's impingement on the right to keep a firearm for militia use.
The Court rejects the notion that magazines capable of holding more than 10 rounds feature prominently in gun violence against law enforcement personnel as there is little evidence. For example, among all of the incidents of gun violence toward law enforcement officers that occurred nationally from 1984 to 2019, California Assistant Director Department of Justice, Bureau of Firearms, Blake Graham lists only nine occasions involving larger capacity magazines. See Defs. Exh. D, Graham Decl. at ¶ 68 (DEF0215-18).
Pistol grips are important to good ergonomics, particularly on a straight-line design rifle such as the AR-15. Kapelsohn Decl., Pls. Exh. 001, at ¶ 28; Kapelsohn testimony, Tx of 10/19/20 hearing at 32:23-33:2. This enhances the firearm's accuracy. Id.; Defs. Exh. D, Graham Decl. at ¶ 28 ("A shooter using an assault rifle without a pistol grip may shoot less accurately with repeated — and especially rapid — shots if the shooter's trigger hand is in an awkward position for a significant amount of time"); Defs. Exh. BA, p. 9 (pistol grips afford greater control of the rifle during firing).
Like pistol grips, thumbhole stocks allow the shooter to gain a comfortable grip on the firearm and can facilitate accurate shooting. Kapelsohn Decl., Pls. Exh. 001, ¶ 29. By prohibiting both pistol grip stocks and thumbhole stocks, § 30515(a)(1)(B) relegates such firearms to be equipped in a manner that is less comfortable, less accurate, and less safe. Kapelsohn Decl., Pls. Exh. 001, ¶ 29.
A forward pistol grip is designed to enhance control of the firearm. Forward pistol grips on rifles, also called vertical forends, are popular among some shooters in allowing them to control the rifle better for more accurate shooting. Kapelsohn Decl., Pls. Exh. 001, ¶ 34. Forward pistol grips may also serve as a "monopod" to assist in stabilizing the rifle for more precision shooting in the prone position. Id.
For 2019, ATF's firearm tracing report shows 41,883 crime firearms traced and recovered in California. (
This ATF report was not presented as evidence in the case and the Court does not rely on it as such. However, it does suggest the reason why California does not offer current evidence of disproportional assault rifle use in crime. There is none to be found.
"THE COURT: Let me ask you a question. Did you ever ask, for example, [Deputy Attorney General] Mr. Echeverria if he would get you the law enforcement reports of home defense shootings that may have occurred where the homeowner or the person at home fired shots at someone that was intruding?
THE WITNESS: Yes. So I did ask both from the State of California as well as from a number of other states that I have worked for, I have asked for data on incidents of exactly that, or whether there was a broader set of data that they had that I could then review.
THE COURT: And did you get that from the State of California?
THE WITNESS: I did not. It was my understanding that the State of California did not have that data or did not have that in a way that it could be reviewed. That that is not — that is not a type of data that is collected."
Other events that have been removed without explanation are: Rite Aid Warehouse 9/20/18; Fifth Third Center 9/6/18; Suburban Denver Walmart 11/1/17; Edgewood Business Park 10/18/17; Pennsylvania Supermarket 6/7/17; Ohio Nursing Home 5/12/17; Planned Parenthood Clinic 11/27/15; Colorado Springs 10/31/15; Trestle Trail Bridge 6/11/15; Fort Hood 4/3/14; Fort Lauderdale 2/9/96 with six fatalities and no assault weapon).
If this approach is implemented nationwide, it could result in deterring a substantial proportion of fame and attention-seekers from committing public mass shootings, while removing the incentive for them to kill large numbers of victims to forge a legacy. The strategy of refusing to publish their names and photos would also be consistent with the core tenets of deterrence theory: It would be swift, certain, and severe."
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