It’s interesting to see SAF and CalGuns Foundation announcing they are going after the Assault Weapons Ban in California. While I’m wary of AWB suits in general, they have a unique angle. I’ve had this case in my tabs for a few weeks now, meaning to write something on it, but hadn’t taken the time to do the research. The case has an Iraq war veteran at the center of it, an individual who has repeatedly been unjustly arrested several times because California cops don’t know what an assault weapon is (which is understandable, considering no one else really does either). The case is also narrow, rather than being a kitchen sink of issues.
The argument, as best I can tell, is that the California AWB can’t survive constitutional scrutiny due to vagueness, and due to the fact that it’s interfering with the exercise of a fundamental constitutional right. The interesting thing about the vagueness angle, is that it’s already been tried before, and prevailed in a case in Ohio in the Sixth Circuit, and as best as I’ve found, none have outright failed either. These cases were pre-Heller, and I would think Heller should change the dynamic a good deal.
Given the Heller II case has upheld an Assault Weapons Ban as constitutional, at this point a circuit split is likely on the matter, which makes it likely the Supreme Court will take a case to resolve the split. This lawsuit looks interesting enough, and the plaintiffs well selected, that this would be something we’d want before the Court if they choose to resolve the conflict. They might be more open to a constitutional argument that includes a strong element of vagueness.
That said vagueness challenges are tough to win, though this area of gun control seems particularly ripe for it. When you regulate by cosmetics rather than function, it necessarily is going to include a large degree of vagueness. This centers around things like prohibiting barrel shrouds, which even Carolyn McCarthy will tell you is a “shoulder thing that goes up,” or prohibiting flash suppressors, but not muzzle brakes, and how is law enforcement to know the difference? There’s also, in California, the issue of the bullet button, which has effectively neutered their assault weapons ban for all practical purposes. Essentially as long as it takes a tool (and a bullet has been determined to be a tool) to drop the magazine, it’s not considered “detachable,” and therefore none of the assault weapon characteristics apply. The problem is that police in California haven’t been well trained to know the difference.
I would be happier if a larger body of post-Heller cases supporting the 2A was built up before they went for big ticket cases like this.
Me too, but people are already taking AWB cases forward.
Yes, and a good number of them are probably going to crash and burn creating a body case law which will come back to bite all of us.
I believe what/how they expect to succeed is because that specifically the vagueness has been amply document by the CA AG Office and various police agencies itself and parts/rulings that are unlawful have been held in abeyance, so a couple of key determinations have been already made based on such vagueness even being vague, and that they can no longer continue to hide or hide-behind inactivity and vagueness when the light is shone upon it.
I guess the question I would have is could the CA DOJ promulgate clearer regulations that would overcome the vagueness issues? If so, could the result of the case just be clearer regulations, rather than the whole ban getting tossed. Would that constitute at least a partial victory if that were the case?
My reading of the Complaint is that CA DOJ itself has said that the regulations cannot be made any clearer, and the Plaintiffs (in a rather nicely nasty twist) are saying “Okay, we won’t dispute that. The fact that you can’t clarify it supports our claim that the whole thing is unconstitutionally vague.”
I think the fact that all parties agree that the regulations can’t be clarified may mean the Court can’t order them to clarify them (or at least that such an order would be subject to appeal by either side, but IANAL).
They are doing a little bit of shotgunning with this though: they also are claiming that these are “common weapons in common use” and therefore protected by the 2nd Amendment. Hopefully, this is the argument that will win, because it would give a “cleaner” result from the pro-Rights standpoint.
Interestingly enough, they’re also attacking California Penal Code § 12031(e) (permitting police to “examine any firearm carried by anyone on his or her person or in a vehicle” in order to
harass and intimidate law-abiding gun ownersverify that it’s not loaded) which was used to justify a warrantless search of Brendan Richard’s car in both of his arrests. They hit a very good point in this one:Unfortunately, Kalifornia is in the 9th Circuit. The District Court might declare it unconstitutional, but I have little hope that the Circuit Court will agree, so I don’t expect a circuit split out of this case.
There are a couple of issues on timing. First, there are statute of limitations to the 1983 claims that means we have to bring these cases a certain amount of time after unlawful arrests. Second, folks are overlooking the Cook County AW case in the IL Supreme Court that is both likely to be decided first and likely to be decided in our favor – creating a different but equally important circuit split. Second, on timing, we’re going to have some less favorable plaintiff ahead if we don’t move now.
Further note that this is a narrow challenge that leaves plenty of room for more direct challenges (like Heller II.) The nice thing about Haynie is that someone is wrong and if it’s just the police that’s an incremental win. We’ve already forced CA DOJ to proclaim that bullet buttons are legit – which is an achievement in and of itself – in this case.
I think CA DOJ doesn’t have much room to promulgate new regs because they’ve had to say this is all crystal clear to defend it where it stands already. If they go for new regs, isn’t that an admission that it was vague the whole time? Once they head down the new reg direction, what do they do with all the guns they may accidentally outlaw – those that are clearly protected by the 2A and owned widely in California?
There are lots of ways we can lose, but those losses have very, very limited impact to the ability to prove that the AR and AK are in common use and possession of which is protected by the 2A. At worst, we’ll completely end any claim to qualified immunity for someone arrested for having a non AW.
Also, there is no definition of or test for what a flash hider is. That’s going to be very amusing.
-Gene
I’ve said it before and I’ll say it again: It amuses me to no end that people who faint dead away at the thought of judging someone by their outside appearance have no problem judging the function and intent of an inanimate object by its outside appearance.
The beautiful thing is that the state was asking for a dismissal arguing that the initial arrest was a fluke, when the defendant was arrested again for a perfectly CA legal firearm. Whoops.
I know I’m late to the party, but I understnd that the reason that NJ has a “feature” ban is that a judge declared the legislative”substntially similar” meant to cover non-named assault weapons to be vague, and the current evil feature list is a patch-round to “define” substantially similar; which results in a AR-15 clone not being substntially similar to the named AR-15, but a .22lr with a 16-round integral tube is…