What arms are “common”?
The Ninth Circuit case Rupp v. Becerra challenges the California legislature’s ban on a wide of variety of rifles. Last week, I co-authored an amicus brief explaining: 1. Supreme Court precedents state that common arms cannot be banned. 2. Lower courts have used several methodologies to decide whether a type of arm is “common”; under any methodology, the arms targeted by California plainly are common. Therefore, prohibition is unconstitutional.
The challenged ban: Beginning in 1989, the California legislature began outlawing firearms by dubbing them “assault weapons.” In California and elsewhere, the definition of “assault weapon” has never been fixed or coherent, but is instead a shorthand for the largest number of firearms that gun prohibition advocates believe they can target in a given legislative session. Indeed, just about the only firearms that not been labeled “assault weapons” are actual “assault rifles,” as defined by the U.S. Defense Intelligence Agency; these are certain battlefield rifles capable of automatic fire, such as the German Sturmgewehr, the Soviet AK-47, or the U.S. M-16. See Kopel, Defining “Assault Weapons,” The Regulatory Review (Univ. of Pennsylvania) (Nov. 14, 2018).
Under the latest definition from California, all centerfire semiautomatic rifles are prohibited if they:
- Are on a list that bans guns by make and model, OR
- Have a fixed (nondetachable) magazine over 10 rounds, OR
- Use detachable magazines, and have one of the following features: a pistol grip
that protrudes conspicuously beneath the action of the weapon; a forward pistol grip; a thumbhole stock; a folding or telescoping stock; or a “flash suppressor.”
Every one of the forbidden features makes a rifle more accurate, and hence safer for all lawful purposes, including self-defense and hunting. Grips or thumbhole stocks improve the user’s hold on the gun, so that it can be better controlled. Ajustable stocks allow users of different heights and arm lengths to adjust a rifle so that it fits them better, and hence is easier to control. A “flash suppressor” stabilizes the rifle’s barrel, moderating the sine wave of energy that wobbles a barrel when gunpowder explodes. See Kopel, Rational Basis Analysis of ‘Assault Weapon’ Prohibition, 20 Journal of Contemporary Law 381 (1994).
The above is agreed by all sides. “[T]hat the rifles are more accurate and easier to
control is precisely why California has chosen to ban them.” Rupp v. Becerra, 401
F. Supp.3d 978, 993 (C.D. Ca. 2019).
Case background: After the California legislature expanded the rifle ban in 2016, a challenge was brought in Rupp v. Becerra. Attorneys for the plaintiffs are Michel & Associates, the leading California firm on firearms law. The firm’s case page for Rupp contains all the filings. In July 2019, the U.S. District Court for the Central District of California upheld the new ban, on cross motions for summary judgement. The appeal is currently being briefed in the Ninth Circuit.
The amicus brief is on behalf of several civil rights organizations: Firearms Policy Coalition, Firearms Policy Foundation, Second Amendment Foundation, Madison Society Foundation, California Gun Rights Foundation, and Independence Institute (where I work). Joseph Greenlee was the lead author, assisted by me and by Prof. George Mocsary (U. Wyo. law school).
The following summarizes the brief, and also includes some additional commentary.
Core Supreme Court rules: Heller specifically addressed “what types of weapons” the right to keep and bear arms protects. District of Columbia v. Heller, 554 U.S. 570, 624 (2008) (emphasis in original). The Court held that the right protects arms t
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