2 New Court Decisions Are Quietly Eliminating Californians’ Second Amendment Rights

Reason – by Declan McCullagh

Two new federal court decisions highlight a harsh new reality: California has effectively repealed the Second Amendment inside its borders.

In the first case, decided yesterday, a district judge ruled against the National Rifle Association’s state affiliate in a challenge to onerous new California rules targeting popular semi-automatic rifles. That 2016 law, signed by Gov. Jerry Brown (D), is called the Assault Weapons Control Act.  

“Even an outright ban on certain types of semiautomatic weapons does not substantially burden the Second Amendment right,” wrote Judge Josephine Staton, a Barack Obama appointee in Santa Ana, California. Staton suggested that if semiautomatic rifles like the AR-15 were outlawed, California gun owners “would be left with myriad options for self-defense—including the handgun, the ‘quintessential’ self-defense weapon per Heller.” (Heller, is, of course, a reference to the Supreme Court’s D.C. v. Heller case, which dealt with handguns.)

The second unsuccessful Second Amendment case, also brought by the NRA’s state affiliate, sought to protect Californians’ rights to carry firearms for self-defense. A federal judge in Los Angeles tossed it on Monday, saying the California legislature “reasonably saw a link between restrictions” on carrying firearms and public safety.

In theory, after the Supreme Court’s Heller decision in 2008, the Second Amendment was supposed to mean something—it was supposed to protect a core fundamental right as important as the freedom to speak or to worship. Just as the First Amendment was the uniform law of the land across the nation, the theory went, the Second Amendment would be as well.

But, alas, that was not political reality. California judges, especially in cities like San Francisco and Los Angeles, have creatively interpreted the Heller decision into a constitutional near-nullity. The U.S. Court of Appeals for the Ninth Circuit has upheld those decisions. And the U.S. Supreme Court, has abdicated its responsibility by letting lower courts get away with it.

“If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene,” Justice Clarence Thomas wrote in a dissent from his colleagues’ decision not to hear the Silvester v. Harris case after the 9th Circuit upheld another California anti-gun measure. “But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court… The right to keep and bear arms is apparently this Court’s constitutional orphan.” (Justice Neil Gorsuch joined Thomas in a separate dissent last year that made a similar point.)

In the lawsuit decided yesterday, Rupp v. Becerra, the California Rifle and Pistol Association asked the court to rule that the 2016 Assault Weapons Control Act was unconstitutional under the Second Amendment and the Constitution’s due process and takings clauses. The California law makes it a crime to manufacture, sell, import or transfer hundreds of popular semi-automatic firearms with a pistol grip or adjustable telescoping stock—and the ban on transfers includes gifts between parents, grandparents, and children.

California gun owners who legally owned such a rifle before December 31, 2016 have only a few choices: register it as an “assault rifle” (which imposes strict new requirements), modify it, sell it, or store it out of state. Failing to register by July 2018 is a crime. (Any bets on how many firearms actually will be?)

Judge Staton’s opinion upholding the 2016 law underscores how widespread—and overt—the judicial resistance to Heller has become. Some excerpts from her opinion: “The legislature is permitted to reform its gun control regime incrementally…It is beyond question that promoting public safety and reducing incidents of gun violence are legitimate government interests… restrictions on semi-automatic weapons bear a rational relationship to the objective of public safety…” Does anyone think that a California judge would be so deferential to the legislature when evaluating a law that, say, restricts the availability of abortions?

This judicial rebellion is not limited to California and the 9th Circuit. It’s present in other circuits, including the 2nd Circuit and the 4th Circuit, which has coughed up conclusions like “assault weapons and large-capacity magazines are not protected by the Second Amendment,” despite both being in common use. Then there’s the 7th Circuit, which opined: “If a ban on semiautomatic guns and large-capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.” Note where this logic leads us: If ban on certain books makes the public “feel safer,” that surely counts as a “substantial benefit” allowing the law to be upheld as constitutional.

In the California carry case, decided Monday by Judge John Kronstadt, another Obama appointee, the California Rifle and Pistol Association argued that the state could not completely prohibit residents from carrying a firearm for self-defense. California has banned the open carry of firearms, and many metropolitan areas will not issue concealed carry permits—a combination that means millions of law-abiding residents cannot legally carry a firearm. (The case is called Flanagan vs. Becerra.)

Kronstadt granted requests from the state of California and the Los Angeles County Sheriff to dismiss the lawsuit. “The burden that [the state laws] impose, if any, on a right protected by the Second Amendment, is not severe…California’s open-carry laws do not infringe upon the ‘core’ Second Amendment right of self-defense within the home,” Kronstadt concluded.

The California Rifle and Pistol Association can, of course, appeal both cases. But everyone paying even the slightest bit of attention already knows what the outcome will be before the largely anti-gun 9th Circuit. And the Supreme Court will likely ignore the warnings from Justice Thomas and Justice Gorsuch and refuse to take the cases.

This is how the courts, quietly, one case at a time, without a vote, are making sure the Second Amendment simply will not apply within the state of California.


7 thoughts on “2 New Court Decisions Are Quietly Eliminating Californians’ Second Amendment Rights

  1. I wouldn’t expect anything less from a California court, or any court for that matter. That purge of “activist judges” back in the 90s cleared the courts of any judge who defended the Bill of Rights, and I’m sure they’ve been careful about who’s been appointed since then.

    They’ve been crafting this present tyranny for several decades.

  2. Should read ,
    Two new Court Decisions are blatant infringements on an inalienable right
    And should be ignored by all , so you will be ready and aware of the upcoming war

    All infringements should be met with non compliance
    The only way they can really take away or change our right to own and protect with a firearm, is if we let them

    Even if it’s down to one person who says F NO!

  3. How do Americans deal with hypocrisy today?

    You might live in a warm place and own a new car listening to good music with an excellent stereo after you ate a delicious dinner and feel pretty good about living in a free country, but how does being tracked and wiretapped 24/7 feel?

    Americans may feel like they are good people even when they commit three felonies a day just by existing.

    How do Americans justify paying taxes when their taxes fund rising debt, Obamacare, food stamps, regulations, US wars, illegal immigrants, nanny state laws, security cameras, license plate readers, checkpoints, redlight cameras, speed cameras, FBI facial and voice recognition, curfews, gun bans, NSA wiretapping, the end to the right to silence, free speech bans, searches without warrants, private prisons, mandatory minimums, 3 strikes laws, CISPA, SOPA, IMBRA, private prison quotas, no knock raids, take down notices, no fly lists, terror watch lists, Constitution free zones, stop and frisk, 3 strikes laws, kill switches, National Security Letters, DNA databases, kill lists, FBAR, FATCA, Operation Chokepoint, TSA groping, civil forfeiture, CIA torture, NDAA indefinite detention, secret FISA courts, FEMA camps, laws requiring passports for domestic travel, IRS laws denying passports for tax debts, gun and ammo stockpiles, laws outlawing protesting, police militarization, chain gangs, boot camps, and Jade Helm?

    Americans might feel like they live in a moral country, but how can a nation that tortures and launches endless wars take the moral high ground on anything?

    How could Americans not feel responsible for US wars, debt, and tyranny?

    How would the founding fathers think about the collapse of the USA?

    The American default reaction to hard facts seems to be to not think and to silence those who speak the truth, but facts don’t cease to exist because they are ignored.

    Future generations will ask why Americans didn’t resist when the US became a police state.

    One thing worse than learning that you live in a police state is finding out that no one cares.

    The only realistic option left for a moral American seems to be to renounce your citizenship.

    1. “…One thing worse than learning that you live in a police state is finding out that no one cares…..”

      I think most people do care, but they just don’t think there’s anything they can do about the situation, or they’re hoping someone else will do it for them. In the meantime, many people ARE preparing for war, because it’s the only viable option that’s been left to us.

      They’re not doing anything visible, because they do know we’re living in a police state, but when all the falsehoods are exposed, and the crashing economy leaves them with little to lose, nothing will be hidden behind the necessary appearance of normalcy anymore. We have our false realities, too, because people still need to pay bills and feed their babies in as normal a way as possible.

      Our lives are too comfortable right now, and anyone would rather be sleeping in a soft bed in a warm house than running through the woods and being fired upon. That comfortable life will be sustained for as long as possible.

      “….Future generations will ask why Americans didn’t resist when the US became a police state….”

      “Most men will live contentedly if neither their property nor honor is touched” — Niccolo Machiavelli

      I think police have a policy of avoiding people who are likely to resist their tyranny, and instead they concentrate their efforts on those who can be easily molded to live under tyranny, or those they can easily squeeze a lot of money from. They’re not going to confiscate firearms because they’ll lose too many soldiers. Instead, they’ll keep passing laws for those who’ll obey them, and let war and poverty do the rest.

    2. What citizenship? The “14th amendment” removed any responsibility of me being a “citizen”.
      And, you left out imminent domain….

  4. “California’s open-carry laws do not infringe upon the ‘core’ Second Amendment right of self-defense within the home,” Kronstadt concluded.”

    The Second Amendment is about the people, the citizenry, always, above all else, maintaining the direct right to defend themselves and the nation from a tyrannical government. Everything else is secondary. The Bill of Rights is a reminder to the Gov of their restrictions, not a listing of the few things the gov will graciously afford the citizenry.

Join the Conversation

Your email address will not be published.