California won’t dodge gun-ownership historical analysis

On Oct. 19, Southern District of California Federal District Judge Roger T. Benitez struck down, as unconstitutional restraints of the Second Amendment rights of law-abiding gun owners, numerous California statutes relating to what the state terms as “assault weapons.” In a 79-page written ruling, Judge Benitez granted the plaintiffs’ motion for an injunction prohibiting enforcement of the California statutes regulating assault weapons. The California Attorney General immediately applied to the Ninth Circuit Court of Appeals for a stay of the injunction pending appeal, which was granted on Oct. 28. The Ninth Circuit panel expedited the appeal, with the Attorney General’s brief due in early November, the reply due shortly thereafter, and argument expected by the end of the year.

This is the second time that Judge Benitez has struck down the California assault weapons regulations in question. The first injunction was ultimately reversed by the Ninth Circuit. However, an intervening change in Supreme Court precedent makes the challengers’ second case much more likely to succeed. In 2022, the Supreme Court handed down New York Rifle & Pistol Association v. Bruen, which struck down a New York firearm permitting regime. While the statutes at issue are different, Bruen critically announced a new test for scrutinizing state firearm restrictions: history and tradition. Unless a state can establish that a similar type of restriction was permissible at the time of the founding, or at the time of reconstruction when the 14th amendment was adopted, its modern-day restriction will likely be found an unconstitutional restraint on the exercise of the Second Amendment’s personal guarantee of the right to keep and bear arms. The historical analogy, as Judge Benitez details, does not need to be perfect, but it must be close.

California’s assault weapons regulations impose felony criminal punishment for the mere possession, much less sale or transfer, of many types of commonly-owned firearms. As particularly relevant in this challenge, a semi-automatic centerfire rifle with certain “features” or “accessories,” such as pistol grips, certain types of stocks or barrels, etc. is unlawful to possess in California. The challengers presented unrebutted evidence that these weapons, such as the AR-15, are among the most widely owned and used weapons in the country for lawful purposes ranging from self-defense to hunting to sport shooting. It was not difficult for the court, therefore, to find that these types of rifles are “typically possessed by law-abiding citizens for lawful purposes,” unlike sawed-off shotguns, machine guns, or bazookas.

To nevertheless defend a wholesale ban on such rifles, the state was required to identify a historical analogue to such a restriction. After first rejecting as largely irrelevant under Supreme Court caselaw the state’s other, essentially public policy-based, justifications for the ban – that mass shooters have used similar weapons, that citizens can choose to own other weapons instead, that semi-automatic rifles are most useful in military service rather than for self-defense, among others – Judge Benitez evaluated the proffered historical analogues.

The state offered a list of 316 laws spanning from 1383 to 1933 which it argued were relevant historical analogues to its assault weapon ban. Many of these the court rejected because they came from irrelevant time periods – either much earlier or much later than the enactment of the relevant constitutional provisions. Fully two-thirds of the list consisted of bans of the use or manner of carrying weapons, not their mere possession. An additional 22 of the laws related to the authority to tax firearm sales. Thirty-eight of the state’s identified laws applied only to disfavored social groups such as slaves and Black Americans. As the court stated, those laws are not relevant to a general assault weapons ban and, even if they were, would be given little weight given their dubious pedigree.

Ultimately, the state argued that its best historical analogue was a 1771 New Jersey statute banning the setting of trap guns. A trap gun is a firearm rigged to a trip wire or other mechanism that was intended to fire without the input of an operator; essentially a boobytrap. The court rejected this analogy, and others the state admitted were even less convincing, because a ban on trap guns is a ban on using firearms in a certain manner, not on their possession.

Though California’s assault weapons regime has stood for about 30 years, it was enacted at a time before federal courts took the Second Amendment seriously as a personal right protected by the constitution. California may have good public policy arguments for banning the most commonly-owned types of rifles in the country, or all guns for that matter. But those interest-balancing arguments are simply not relevant in light of the Supreme Court’s decisions in Heller, and more recently in Bruen. As the Supreme Court has already held, the interest balancing was done by the framers and it was resolved conclusively in favor of law-abiding citizens’ right to possess all but the small category of rare, atypical, and unusually dangerous weapons. California’s challenge on appeal is how to fit the most commonly-owned rifles in the country into that category.