News Federal Court Strikes Down Challenge to California’s Assault Weapons Ban Adam Kraut July 29, 2019 Last week, a federal judge issued an opinion striking down a challenge to the constitutionality of California's Assault Weapons Act, also known as the AWCA. Background Originally passed in 1989, the AWCA made it a felony to manufacture “assault weapons” or to possess, sell, transfer, or import firearms covered by the Act into the state without a permit. At the time of its passage, the Act included a list of specific firearms identified by their make and model. Since its initial enactment, the Act has been modified several times. In 1999, the Act was was amended to define a new class of restricted weapons according to their features rather than by model. Under the 1999 amendments, a firearm was considered to be an “assault weapon” if it had “the capacity to accept a detachable magazine,” and any of the following features: 1) a pistol grip that protrudes conspicuously beneath the action of the weapon, 2) a thumbhole stock, 3) a folding or telescoping stock, 4) a grenade launcher or flare launcher, 5) a flash suppressor, or 6) a forward pistol grip. As a result, bullet buttons became a popular method to “circumvent” regulation under the AWCA. In 2016, the Act was again modified to prevent individuals from using bullet buttons to exempt themselves from the Act. The Challenge The lawsuit was brought by several plaintiffs, some who do not currently own rifles within the AWCA’s scope but would immediately acquire one if not for their fear of prosecution under the AWCA, some who have parts and would assemble them into rifles if they did not fear prosecution under the AWCA and some who do own rifles under the Act's scope and wish to be free from its transfer and use penalties. The plaintiffs brought several challenges, including a facial challenge, to the AWCA, arguing that it violates the Second Amendment. The Court dismissed the arguments in relation to takings and due process because the Plaintiffs failed to respond to the argument for dismissal, thus the only discussion will be in relation to the facial challenge. For those that are unfamiliar with the term “facial challenge” it is one that contends the law, as it stands on its own, is unconstitutional. This is different than an “as-applied challenge” where the person suing is contending that the law is unconstitutional, but only in relation to them. Since the challenge took place in California, the Court applied a two-step test spelled out by the 9th Circuit that is to be used when a Second Amendment challenge is brought. Step one requires the court to ask whether the challenged law burdens conduct protected by the Second Amendment. If it does not, the analysis ends and the law is upheld. If it does, the Court then proceeds to step two and selects an appropriate level of scrutiny to apply to the law. The Analysis Step One: Is the Conduct Burdened under the Second Amendment? The Court began its analysis by looking to Heller for the proposition that “the Second Amendment does not ‘protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” In order to determine whether the law falls within the scope of the Second Amendment, the 9th Circuit requires the court to ask whether the law 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.” California's Attorney General argued that “[a]ssault rifles may be banned because they are, like the M-16, ‘weapons that are most useful in military service’” and that “they are also not ‘in common use’ for lawful purposes like self-defense.” The Court concluded that “semiautomatic assault rifles are essentially indistinguishable from M-16s, which Heller noted could be banned pursuant to longstanding prohibitions on dangerous and usual weapons, and therefore need not reach the question of whether semiautomatic rifles are excluded from the Second Amendment because they are not in common use for lawful purposes like self-defense.” The opinion examined the 4th Circuit’s reasoning in Kolbe, where Maryland's Firearm Safety Act of 2013 was challenged, to determine the question which needed to be answered. Unlike the Court in Kolbe, which used the question “are the banned assault weapons and large-capacity magazines ‘like’ ‘M-16 rifles,..‘weapons that are most useful in military service,’ and thus outside the ambit of the Second Amendment?”, this Court determined that the proper question was “are the semiautomatic rifles at issue here ‘like' the military’s M-16, a historically banned dangerous and unusual weapon? If so, the semiautomatic rifles are similarly outside the scope of the Second Amendment.” Put another way, unlike the test in the 4th Circuit which would remove all firearms from Second Amendment protections if they were found to be “most useful in military service,” this Court determined that being “most useful in military service” did not automatically remove Second Amendment protections. The Court also stated that “it is undisputed that the M-16 is outside the scope of the Second Amendment—thus, if a weapon is essentially the same as the M-16, it is not protected by the Second Amendment merely because gun manufacturers have given it a different model number and dubbed it a ‘civilian rifle.’” Further, the Court concluded with Kolbe’s conclusion that “AR-15-type rifles are ‘like’ M16 rifles under any standard definition of that term.” Webster’s New International Dictionary defined the term “like” as “[h]aving the same, or nearly the same, appearance, qualities, or characteristics; similar.” After a quick analysis of the characteristics of AR-15s and M-16’s, including the rate of fire, how soldiers are instructed to use M-16s with semiautomatic fire to be more effective, parts compatibility between the two firearms and shared features which are within the AWCA’s scope, the Court concluded that the plaintiffs presented no evidence to meaningfully distinguish the semiautomatic rifles at issue from the M-16, which allowed the Court to concluded that semiautomatic rifles within the AWCA’s scope are virtually indistinguishable from M-16s and thus are not protected by the Second Amendment. Put another way, the AWCA does not burden conduct protected by the Second Amendment, according to the Court. Step Two: Appropriate Level of Scrutiny Based on the two-step analysis required by the 9th Circuit, the inquiry ends there, however, the Court conducted an analysis under intermediate scrutiny. Intermediate scrutiny has been the level which the various circuit courts have been using when conducting an analysis of a challenge involving the Second Amendment. It falls in between the strict scrutiny and rational basis tests. In order for a law to be upheld, intermediate scrutiny requires that the challenged law must advance an important government interest by means that are substantially related to that interest. In a separate order that was issued earlier in the case, the Court found that “the 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.'” Individuals are left “with [a] myriad options for self-defense–including the handgun, the ‘quintessential’ self-defense weapon per Heller.” Additionally, the Court found the Attorney General’s evidence showed that semiautomatic rifles controlled by the AWCA were a poor choice for self-defense and that the evidence presented by the plaintiffs showed while individuals may sometimes purchase assault rifles for self-defense, it is not the primary purpose for doing so. The analysis under intermediate scrutiny requires the Court to determine whether the government has a substantial interest in promoting public safety and reducing gun violence and does the AWCA fit reasonably in achieving that goal. in this instance, the Court found the answer to be “yes.” In determining the answer, the Court compared the findings that Congress made during the passage of the federal assault weapons ban with that of the findings of the California legislature in enacting the AWCA, along with the legislatures concern for use of these firearms in mass shootings and increased casualty rates. While the Plaintiffs argued that “none of the challenged features that bring a firearm within the AWCA’s scope—pistol grips, non-fixed magazines, thumbhole stocks, folding or telescoping stocks, and flash suppressors—have ‘any effect on the power of the projectile it discharges and thus the trauma that projectile causes on impact,'” the Court found this argument non compelling. The Court retorted finding that “Plaintiffs miss the point—the enumerated features increase the capabilities of semiautomatic rifles and thereby enhance their capacity for mass violence.” As a result, the Court determined that even under intermediate scrutiny, the law still survives. What Does the Future Hold? Plaintiffs are left with several options, but the most likely one is an appeal to the 9th Circuit. For now, the AWCA continues to remain the law in California. About the Author Adam Kraut is a firearms law attorney practicing in southeastern PA and across the country federally. He hosts The Legal Brief, a show dedicated to crushing the various myths and misinformation around various areas of the gun world. He was also the general manager of a gun store in the suburbs of Philadelphia. 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