2nd Amendment Cases, From Coast To Coast by Tom Reynolds
Several 2nd Amendment cases are in the news lately and, strangely, some are positive and come from two of the most anti-gun states, California and New York
U.S. District Court Judge Roger Benitez struck down California’s 30-year-old ban on Modern Sporting Rifles (MSRs) in his ruling on Miller v. Becerra (also known as Miller v. Bonta). Judge Benitez compared California’s litigation stance to similar views professed by Oakland’s police chief - that crime victims shouldn’t arm themselves, but be willing victims who can later testify against their attackers. Benitez replied, “Of course, a dead victim is a lousy witness.”
Benitez cited the Supreme Court’s unanimous Caetano v. Massachusetts ruling which overturned a ban on stun guns. In it, SCOTUS basically said: if 200,000 stun guns are enough to meet the standard of being in “common use”, then the millions of modern multi-purpose semiautomatic rifles are clearly worthy of “common use” protection; Caetano had also ruled that advancing technology does not negate 2nd Amendment protection; it rejected as “bordering on the frivolous” the argument that only those arms in existence in the 18th century are protected by the Second Amendment.
Judge Benitez scrutinized the evidence the state offered in support of California’s “assault weapon” ban, found it inadequate, and declared California’s laws banning common “assault weapons” (like the AR-15) unconstitutional. Benitez wrote that California’s ban on such firearms “has had no effect” on shootings in the state” and that “California’s experiment is a failure.”
Judge Benitez’s ruling was made in this June and includes an automatic 30-day stay of his order. This gives the state time to appeal to the Ninth Circuit Court of Appeals, which the California Attorney General (Bonta) has already promised to do.
In another case, Duncan v Becerra, a three-judge panel of the Ninth Circuit struck down three California state laws on Large Capacity Magazines (LCM’s):
1. a bill passed by the Legislature making it illegal to own magazines that hold 10 or more bullets;
2. a voter-passed ballot measure that requires people to get rid of such LCM’s that they already own or face being charged with a misdemeanor or infraction;
3. a 2000 law which made it illegal to sell or buy LCM’s.
The court held that: firearm magazines are protected arms under the Second Amendment; that LCMs are commonly owned and typically used for lawful purposes and are not “unusual arms” that would fall outside the scope of the Second Amendment; that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness; that there was no persuasive historical evidence in the record showing that LCM possession fell outside the realm of Second Amendment protection.
The panel further held that “Strict Scrutiny” was the appropriate standard to apply and, under it: the law struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home; and that the near-categorical ban of LCMs substantially burdened core Second Amendment rights.
The laws were originally struck down by U.S. District Judge Roger Benitez (yep, him again) who said that the law “turns millions of responsible, law-abiding people trying to protect themselves into criminals.” His decision was appealed to the three-judge panel which upheld his decision. California is now appealing the three-judge decision to the entire Ninth Circuit (en banc).
In Rupp v. Becerra, US District Court Judge Josephine Stanton upheld the California Assault Weapons Control Act that makes it a crime to manufacture, sell, import or transfer hundreds of popular semi-automatic firearms with a pistol grip or adjustable telescoping stock. The law also includes a ban on transfers or gifts between parents, grandparents, and children.
California gun owners who legally owned such a rifle before December 31, 2016 had to register by July 2018; failure to register is a crime. Rupp said that the registration process violated the plaintiffs’ Second Amendment rights, as well as their due process rights, specifically, as it related to the act of registering an “assault weapon.” One of the requirements before registering is that applicants must state (under penalty of perjury) the date of acquisition of their firearm in their application for registration of their rifle. Many individuals legally own their weapons, but failed to retain their original paperwork, and thus, could not complete the form without guessing as to the date or location of purchase.
In her decision, Judge Stanton went into great detail to explain that the plaintiffs (Rupp) were not in a position to sue for relief since, essentially, none of them had actually committed perjury yet by attempted to register. The judge also wrote, “Even an outright ban on certain types of semiautomatic weapons does not substantially burden the Second Amendment right." She also suggested that if semiautomatic rifles like the AR-15 were outlawed, California gun owners "would be left with myriad options for self-defense”.
The case is appealed to a three-judge panel of the Ninth Circuit Court and has been fully briefed
Here in New York the Supreme Court of the United States has agreed to hear the case of NYS Rifle and Pistol Association v Corlett. The case will be heard this Fall. The key question is, “Can the government prohibit law abiding, ordinary citizens from carrying handguns outside of their home”. Anti-2A lawyers have been trying to argue that the Heller and McDonald decisions only covered guns in the home and not outside the home.
The Second Circuit ruled that the New York law is constitutional. The current composition of the Supreme Court makes a pro-Second Amendment decision look very possible.
Miller v Becerra / Bonta, Duncan v Becerra and Rupp v Becerra) are all likely to be delayed by the Ninth Circuit pending the Supreme Court’s decision on NYSRPA v Corlett. So, the Corlett decision could topple a number of dominos.
The Becerra cited in these cases is former California Attorney General Xavier Becerra who is currently serving as Secretary of Health and Human Services in the Biden administration and whose nomination was criticized for his lack of health care experience. Judge Roger Benitez, who issued pro 2A rulings, was appointed by President George W. Bush. Judge Josephine Stanton, who issued the anti-2A ruling was appointed by President Barack Obama. Just sayin’.