CA says AR’s NOT covered by the 2A! – The Legal Brief


Welcome back to The Legal Brief, the show
where we CRUSH the various legal myths and misinformation surrounding various areas of
the gun world. I’m your host Adam Kraut and today we’re taking
a look at a recent California Federal Court decision which found that AR15s and “similar”
rifles are not protected by the Second Amendment. Recently, a California Federal Court issued an opinion
in which it found that California’s Assault Weapons Act, also known as the AWCA, does
not violate the Second Amendment. The AWCA, originally passed in 1989, made
it a felony to manufacture “assault weapons” within the State of California, or to possess,
sell, transfer, or import such weapons 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, it was amended to define a new class
of restricted weapons according to their features rather than by model. For example having a detachable magazine and
either a pistol grip that protrudes conspicuously beneath the action of the weapon; a thumbhole
stock; a folding or telescoping stock; a grenade launcher or flare launcher; a flash suppressor;
or a forward pistol grip. In 2016, the legislation was again modified
to prevent individuals from using bullet buttons. The underlying lawsuit brought several challenges,
including a facial challenge to the AWCA. 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 is taking 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. Intermediate scrutiny has been the level which
courts have been using. Remember, intermediate scrutiny is in between
the strict scrutiny and rational basis tests. In order to be upheld, it requires that the
challenged law must advance an important government interest by means that are substantially related
to that interest. 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 regulation 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.'” I know this is a bit dense, but stick with
me here. In this case, the Attorney General argued
that “Assault 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 unusual 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. It went on to discuss the 4th Circuit’s reasoning
in Kolbe, where Maryland’s Assault Weapons Ban was challenged. The Court 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.'” As to whether the semiautomatic rifles at
issue are “like” the M-16, this Court agreed with Kolbe’s conclusion that “AR-15-type rifles
are ‘like’ M16 rifles under any standard definition of that term.” The term “like” was defined as “Having the
same, or nearly the same, appearance, qualities, or characteristics.” So according to them, if it looks the same,
it is the same. 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 conclude 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. Based on the two step analysis we discussed
earlier, the inquiry ends there, however, the Court conducted an analysis under intermediate
scrutiny, anyway. 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,” and that the AWCA leaves individuals “with myriad options
for self-defense–including the handgun, the ‘quintessential’ self-defense weapon per
Heller.” The Court also found that the AG’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. Thus the analysis under intermediate scrutiny
becomes 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. According to the Court, the answer to that
question is 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. 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 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 survives. Put simply, according to a California Federal
District Court, the Assault Weapons Ban in California stands and AR15s and “similar”
rifles are NOT covered by the second amendment. Now you’re probably asking, what happens next. Plaintiffs are left with several options,
although the most likely one is an appeal to the 9th Circuit to review the lower court’s
finding. And as is well known, the 9th Circuit isn’t
exactly what one would call gun friendly. That’s it for this episode, if you have learned
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