As the legal fight over California’s ban on so-called assault weapons moves from a U.S. District Court to the Ninth Circuit Court of Appeals, a coalition of nearly two dozen Attorneys General are speaking out against the ban and in support of Judge Roger Benitez’s decision declaring the ban unconstitutional.
In a new amicus brief filed with the Ninth Circuit, Arizona Attorney General Mark Brnovich and 21 other Republican AGs urge the appellate court to reject the state of California’s request to stay Benitez’s decision while the case is appealed. The Attorneys General argue that California doesn’t have much likelihood of ultimately winning the case, and allowing the ban to remain in effect during litigation will harm the constitutional rights of California residents.
Appellants tellingly characterize the state laws at issue as “barring” modern rifles. This outright ban strikes at the core of the Second Amendment. The District Court correctly held, and it is self-evident, that modern rifles are “Arms” under the Second Amendment. Modern rifles are also commonly used by law-abiding citizens for lawful purposes, including in defense of the home.
As the District Court explained, “between at least 200,000 and perhaps 1,000,000 modern rifles are owned in California alone.” Nationwide in 2018, over 664,000 modern rifles were produced, comprising about 50% of all rifles produced that year. Modern rifles are legal in 45 states and under federal law. California does not dispute any of these facts. Thus, when California enacted a statewide ban on the mere possession of modern rifles, it destroyed the core of the Second Amendment right. And when such destruction occurs, interests should not be balanced.
The brief by Brnovich and 21 other Republican AGs also takes issue with California’s claim that the ban is needed to protect against mass shootings.
While mass shootings are tragic, and government can take constitutional steps to attempt to prevent them, the District Court made a factual conclusion that mass shootings are rare—a finding Appellants do not dispute. Appellants also have not established that, when such shootings have occurred, more lives have been lost or injuries sustained because of the features that under California law make an otherwise ordinary rifle a modern rifle, which is the minimum necessary to show sufficient tailoring under the Second Amendment.
In fact, Appellants admit that “79 percent of the firearms used in mass shootings were obtained legally” and that, at most, a decade-long federal ban on assault weapons resulted in 66 less deaths nationwide (from 155 to 89).
Again, the Amici States acknowledge the heartache that results from mass shootings, but the Second Amendment, even if the Court erroneously uses intermediate scrutiny, requires significantly more tailoring than California has engaged in here.
It’s great to see these Attorneys General weigh in on the California gun ban, especially so early in the appeals process. The arguments they make are solid, but I have a sneaking suspicion that they’re going to fall on deaf ears at the Ninth Circuit Court of Appeals. While Donald Trump was able to tilt the appellate court towards a more balanced makeup thanks to his judicial appointments, the Ninth is still fairly hostile to the right to keep and bear arms, and it won’t surprise me if the appellate court ultimately decides that the ban can remain in effect while the litigation works its way through the federal court system, as it’s done with challenges to California’s bans on “large capacity” magazines and online and out-of-state ammunition purchases,
A decision on whether or not Judge Benitez’s decision should be stayed pending appeal could come as early as Friday. The state of California is urging the court to grant an emergency stay, while attorneys for the plaintiffs have a two-pronged argument in response; first, that no “emergency” exists so the appeals process should move forward on a regular schedule, and secondly, that the state of California hasn’t met its burden to prove that a stay is necessary at all.
I think that the plaintiffs have the better argument here, but if I lived in California I wouldn’t be making any plans to purchase an AR-15 this weekend. The odds are that the state’s ban on the most commonly-sold rifle in the United States will continue, and it will ultimately be the Supreme Court that restores the right to keep a modern sporting rifle to the residents of California.