California Assault Weapons Ban Will Be Tested at Ninth Circuit

California will argue Wednesday the state can be a national blueprint for reducing firearms violence in its fight to protect its ban on assault weapons, while gun rights advocates contend the state disregards the fundamental right of gun ownership.

A three-judge panel of the US Court of Appeals for the Ninth Circuit will consider whether a trial judge got it wrong in striking down the law as having “no historical pedigree.” The appeals court stayed that decision until the panel decides the appeal or issues an order lifting the stay.

California’s Assault Weapons Control Act was first passed in 1989 and “has saved lives. It has banned weapons of war from our streets,” state Attorney General Rob Bonta (D) told reporters Tuesday. “And tomorrow we will have a chance in court to argue why this law is constitutional and must remain in place.”

Supreme Court Tests

The gun owners and advocates who brought the case argue the US District Court for the Southern District of California correctly held that the arms banned under the challenged provisions are “in common use” today for lawful purposes. That’s the test set in 2008 by the US Supreme Court in District of Columbia v. Heller, which held that arms in common use for lawful purposes are protected and their possession and use can’t be banned.

The Supreme Court in 2022 in New York State Rifle & Pistol Association v. Bruen held the Second Amendment establishes the right to carry a handgun outside the home, and gave courts a new test to use in adjudicating gun cases. Judges must determine whether firearm regulations are consistent with the “historical tradition” of those laws, from the 18th and 19th centuries.

The historical record “demonstrates that California’s ban on common rifles, handguns, and shotguns is an extreme historical outlier compared to any historical law restricting, in some way, the possession or carriage of weapons,” the gun advocates said.

It is “utterly unlike any historical law in the way it establishes a blanket ban on a category of firearms (of the State’s creation) despite the fact that those firearms are among the most popular in the country,” the gun advocates said. There is “no similar law from the Founding, the most important time period for assessing the scope of the Second Amendment’s protections,” and no similar law from any time before the 20th century, they said.

Bonta, at a press conference on the one-year anniversary of a mass shooting that killed seven farmworkers in Half Moon Bay, Calif., said the state will be “arguing this law is constitutional and must remain in place.”

“The Supreme Court was clear in the Bruen decision that the Second Amendment doesn’t impose a regulatory straitjacket, that not every American is entitled to any weapon whatsoever, anytime they wanted, with absolute ability to have those weapons,” the AG said.

The district court decision that invalidated the law was “dangerous, it was misguided, it was wrong. And we’re working vigorously to reverse it, and my team is going into court to make the case tomorrow,” Bonta said.

30 AGs Back Injunction

Attorneys general of 30 states joined the San Diego County Gun Owners Political Action Committee, Gunfighter Tactical LLC, Firearms Policy Coalition Inc., Second Amendment Foundation, California Gun Rights Foundation, and others in arguing the law should be blocked.

California “disregards a fundamental liberty that belongs to all law-abiding Americans,” the AGs said. The California law encourages other governments to experiment with the people’s rights, but when it comes to the Bill of Rights, states can’t experiment, the AGs said. The states must respect and defend all Americans’ rights and unless enjoined, the assault weapons ban’s eroding impact won’t be confined to California, they said.

The states are “also home to lawful firearm businesses that can no longer sell any of the hundreds of firearms banned by the AWCA in California,” the brief said.

The Giffords Law Center to Prevent Gun Violence, Brady Center to Prevent Gun Violence, and March for Our Lives in a brief supporting California argue that the firearms governed by the challenges are “uniquely dangerous and are not quintessential self-defense weapons, and, therefore, are not covered by the plain text of the Second Amendment” and are “significantly more lethal than any firearms in the 1700s or 1800s.”

“We have the blueprint for success in this country,” Bonta said. “If every state and the federal government did what we did here, thousands of lives, hundreds of thousands lives” would be saved from gun violence.

Everytown for Gun Safety, which advocates gun-safety measures, is backed by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

Dillon Law Group APC, Cooper & Kirk PLLC, and Seiler Epstein LLP represent the gun owners. The California Attorney General’s office and the state Department of Justice represent the state.

The case is Miller v. Bonta, 9th Cir., No. 23-2979, oral arguments 1/24/24.