FPC Moves for Injunction Against California’s ‘Assault Weapons’ Ban

common sense gun control is intellectually lazy

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Back in March, Judge Roger T. Benitez ruled in Duncan v. Becerra that California’s ban on “large capacity” magazines was a violation of the Second Amendment. That resulted in a one-week window of opportunity during which about 1 million standard capacity magazines were sold in the state before the ban was reinstated pending an appeal of the decision.

Brownells california magazine ban ad

Courtesy Brownells

Now, the Firearms Policy Coalition is before Judge Benitez arguing that, under the same reasoning he used in Duncan v. Becerra, California’s “assault weapons” ban is no less an abrogation of the right to keep and bear arms.

Here’s the FPC’s press release . . .

Today, Firearms Policy Coalition (FPC) announced the filing of a motion for a preliminary injunction in the case of Miller, et al. v. Attorney General Xavier Becerra, et al., a federal Second Amendment challenge to California’s Assault Weapons Control Act (AWCA) ban on common semiautomatic arms with common characteristics, including those with ammunition magazines that can hold more than 10 rounds. The court filings are available online at www.assaultweaponlawsuit.com.

The motion, before Federal District Court Judge Roger T. Benitez, argues that “[i]n Duncan v. Becerra” – a lawsuit challenging California’s ban on so-called “large-capacity” magazines – “this Court recognized that the Second Amendment protects the right to keep and bear common arms and firearm magazines that are useful for self-defense or use in a militia. . . This case is a logical result of Duncan’s analysis and seeks nothing more or less for the common arms that can use those magazines.” Further, the motion requests  “that the Court . . . preliminarily enjoin the [Assault Weapons Control Act] and Defendants’ policies, practices, customs, and regulations that enforce it.”

“The State of California may not ban common semiautomatic firearms with common characteristics, full stop,” said FPC President Brandon Combs. “The United States Constitution and Supreme Court precedent make clear that the State’s ‘assault weapon’ ban scheme is categorically unconstitutional. Second Amendment rights ‘shall not be infringed,’ period.”

“In this case, we seek to restore the Supreme Court’s plain command in Heller, that governments may not ban categories of arms that are overwhelmingly in common use and chosen by the American people for lawful purposes including self-defense and sport,” said George M. Lee, an attorney for the plaintiffs. “These types of categorical bans cannot be justified under any level of scrutiny. As our motion and our experts resoundingly show, California’s ban on common firearms with common characteristics is irrational and has no basis in our Nation’s history or tradition.”

“California’s ‘assault weapon’ laws ban common firearms with common characteristics,” noted John Dillon, an attorney for the plaintiffs. “The State’s categorical ban, if upheld, would nullify the Second Amendment. Thankfully, the California is flat wrong on every count and we are cautiously optimistic that the ban will ultimately be struck down, as it should be.”

“California’s ban on so called ‘assault weapons’ finds no quarter under any proper reading of the Constitution,” said FPC’s Director of Legal Strategy, Adam Kraut. “Currently, Californians are constrained from exercising their right to keep and bear arms in a manner that would allow them access to firearms that are in common use, for lawful purposes. This lawsuit seeks to vindicate their rights.”

The motion’s testimony and exhibits include the scholarship and research of law professor and Second Amendment expert, George Mocsary; arms, tactics, militia, and history expert Major General D. Allen Youngman (ret.); historian and firearm technology expert Ashley Hlebinsky; firearms, tactics, use of force, ballistics, and training expert Emanuel Kapelsohn; James Curcuruto, National Shooting Sports Foundation’s Director of Research and Market Development; and economist and crime researcher Dr. John Lott, president of the Crime Prevention Research Center; and attorney, modern firearms expert, and FPC Director of Legal Strategy, Adam Kraut.

In a brief to the United States Supreme Court filed earlier this year, at the merits phase of the now-argued New York State Rifle & Pistol v. New York City litigation, Firearms Policy Foundation, along with plaintiffs Firearms Policy Coalition and California Gun Rights Foundation argued that “[r]ights covered by the text of the Second Amendment – as interpreted and understood according to history, practice, and public meaning when it and the Fourteenth Amendment were adopted – are not divided into lesser and greater categories. The Constitution itself has done the categorizing and those rights covered ‘shall not be infringed.’ Period. There is no further clause beginning with ‘except * * *.’ No qualification of the prohibition saying some of those rights can be infringed a little, or if the government really feels strongly about it, or has reconsidered the costs and benefits of protecting such rights.”

 Background

  • The plaintiffs in the case are James Miller; Wendy Hauffen; Neil Rutherford; Adrian Sevilla; Ryan Peterson; Gunfighter Tactical, a firearms dealer; John Phillips; Poway Weapons and Gear, a training facility, firearms dealer, and NSSF 5-Star shooting range; and advocacy organizations San Diego County Gun Owners (SDCGO) PAC; California Gun Rights Foundation (CGF); Second Amendment Foundation (SAF); and Firearms Policy Coalition (FPC).

  • The Defendants in the case are California Attorney General Xavier Becerra, who heads the California Department of Justice (DOJ), and DOJ Bureau of Firearms Director Brent Orick.

  • California law generally prohibits law-abiding people from, among other things, acquiring, possessing, using, transporting, transferring, or bequeathing common semiautomatic firearms with common characteristics the State calls “assault weapons”.

  • The plaintiffs brought this action challenging the State’s “Assault Weapon Control Act” and the Defendants policies, practices, customs, and regulations that enforce it, as unconstitutional under the Second Amendment to the United States Constitution.

  • The plaintiffs in Miller v. Becerra seek a temporary and permanent injunction to enjoin the Defendants from enforcing the Assault Weapons Control Act ban so individuals can acquire, possess, and lawfully use constitutionally protected semiautomatic firearms and exercise their Second Amendment rights.

  • The case is backed by Firearms Policy Coalition, Firearms Policy Foundation, California Gun Rights Foundation, and Second Amendment Foundation.

Firearms Policy Coalition (www.firearmspolicy.org) is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to protect and defend the Constitution of the United States, especially the fundamental, individual Second Amendment right to keep and bear arms, advance individual liberty, and restore freedom.

Firearms Policy Foundation (www.firearmsfoundation.org) is a 501(c)3 grassroots nonprofit organization. FPF’s mission is to defend the Constitution of the United States and the People’s rights, privileges and immunities deeply rooted in this Nation’s history and tradition, especially the inalienable, fundamental, and individual right to keep and bear arms.

California Gun Rights Foundation (www.cagunrights.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to advance Second Amendment and related civil rights.

Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing, and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

San Diego County Gun Owners (sandiegocountygunowners.com) is a non-profit membership organization whose purpose is to protect and advance the Second Amendment rights of residents of San Diego County, California. SDCGO’s membership consists of Second Amendment supporters, people who own guns for self-defense or sport, firearms dealers, shooting ranges, and elected officials who want to restore and protect the right to keep and bear arms in California.

comments

  1. avatar WI Patriot says:

    And this is exactly what the left wants/wanted, to tie this shit up in the courts for yrs…

    1. avatar MICHAEL A CROGNALE says:

      What would you have us do differently? We tout the fact that we are “law-abiding” citizens. Therefor we must obey and comply with the laws until such time as we either, get them ruled as invalid, or leave the state in which these laws are in effect.

      1. avatar The Crimson Pirate says:

        Or until we decide that being law abiding is no longer the best option.

        Especially with the example of municipalities and even states flaunting federal immigration and dug laws, and municipalities flaunting state laws.

      2. avatar Shire-man says:

        At this rate gun owners will be the only suckers left abiding the law.
        Everyone else gets a free pass to ignore the law. Often they are praised for their “bravery” and “power.”
        Here we are sheepishly asking permission and making sure every t is crossed and i is dotted never leaving home without our permission slips and writing our politicians asking them to please respect us for we have harmed no one.

        Soon enough we’ll be apologizing for wanting our rights respected.

        I don’t know what else can be done but having all our eggs in the judicial basket isn’t confidence inspiring.

        1. avatar California Richard says:

          Gun owner should absolutely obey the law always without exception until the laws are legally overturned. Think of the pro marijuana and sanctuary city people. They monastically obeyed the law for decades until marijuana became legal in California and the entire state became a sanctuary state.

        2. avatar kyle says:

          I wish I could say I agree with CA Richard, but sadly, I do not.

          It seems that the laws are being “interpreted” in one direction. If the law has lost its meaning, why continue to obey it? CA is no longer concerned with Legal niceties, The pass unconstitutional laws and the reinterpret them and enforce them capriciously.

          What is the current compliance rate with the latest raft of california gun laws? 8%…at best?

          No, I’m afraid that we must now accept that we are moving into the “I will not comply” stage. Government is going to have to “come and get them” with all the danger’s for all sides that that will entail. Compliance is no longer an option.

        3. avatar California Richard says:

          Maybe I should have put /sarc/ at the end of my comment…. you hit the subtext of my comment on the head.

          We’ve* (California) been harboring illegals in violation of federal law and looking the other way on marijuana for decades before it was legalized.

        4. avatar FB says:

          We need counties to jump on the 2nd amendment sanctuary bandwagon.

      3. avatar WI Patriot says:

        You completely missed the point of my comment, but somehow that doesn’t surprise me…you’re as bad, if not worse than the liberals with their emotion based kneejerk reaction(s) to everything “gun”…

        My point was that the left, trying to institute unjust/unconstitutional “laws”, not caring, wanted to tie these issues up in the courts for yrs, if not decades, knowing full well that their unjust/unconstitutional “laws”, would inevitably fail, but all the while suspending the issues at hand, thereby hogtying law abiding gun owners…

    2. avatar arc says:

      Unconstitutional infringements are not magical barriers or psychic entities that hone in and remote view people following the supreme law of the land. Own what you want and exercise extensive privacy, continue to fight the attacks on our rights.

  2. avatar Nate in CA says:

    Plenty of common use guns not listed on the “Roster of Handguns Certified for Sale” nonsense… not very common for a manufacturer to modify their models with redundant, despised features and then continue to manufacture outdated designs for a specific geo-political market.

    1. avatar TommyJay says:

      Yes, that Roster of Handguns nonsense exists supposedly for safety reasons. Yet they are completely inconsistent in the their “safety” requirements. They want magazine-trigger interlocks? I bought one off the Roster that does not have that. Same with the loaded chamber indicator. I think the Roster is just about charging a lot of money for cert. and forcing manufacturers to bow and scrape before the gods of the CA DOJ.

      Plus the Roster completely violates the precepts behind the Interstate Commerce Clause.

      1. avatar son of alan says:

        No, the roster just become an example of creeping incrementalism. Oh safety, we like safety, testing, we love testing. It has become a ban vehicle. The goal is to simply reduce the # of available handguns to zero. That is the only intent or purpose.

      2. avatar I Haz A Question says:

        Don’t forget that LEOs are exempt and may purchase guns not on the roster, and later sell to a non-LEO through an FFL. So if, for example, a Gen 5 Glock is so dangerous, then does it suddenly become “safe” when a LEO picks it up? Because magic?

        And if so, then what happens to that Elven magic that infuses the gun when the LEO later sells it to a non-sworn citizen? Does it disappear and render the gun evil? Oh, unless that citizen moves out of CA, in which case the magic reappears because it was waiting just on the other side of the border.

        So thankful we have our Dear Leaders watching out for us so we don’t mess with the magic. Only wizards know that stuff.

      3. avatar Hannibal and the Elephants says:

        And if the goal truly is safety, why are LEO allowed to purchase “unsafe” off roster firearms. Why does Commifornication allow endangering public safety in this way?
        I am in Florida, but Commifornication’s allowing this makes me feel unsafe.
        And some days I identify with a purple unicorn and others with an African Elephant in Musth. Oh maybe that is because I am surrounded by Elephants.

    2. avatar Hydguy says:

      The phrase ‘common use’ is a trap phrase, as is ‘sporting use’.
      What constitutes ‘common use’?
      Is it the specific firearm’s actual number of units in circulation? If so, that means any new model can be restricted, as it’s not ‘in common use’.
      Is it action type? If so, that is a much harder standard for the governments to use, as there has been no new action type developed in over a century.
      Is it caliber based? If so, that kills off innovation of new cartridges.
      The only court decision that has set forth a standard is US v. Miller, and while the Court got the issue on Miller’s SBS wrong, the overall decision is the most favorable to the militia clause in the 2A, and we would get unrestricted SBS’s back, along with full auto ‘military pattern’ guns, and all kinds of other things.

      1. avatar arc says:

        My 2A rights are not subject to common use, if they are, then I’m subjecting the leftists right to vote in my country to a higher qualification standard. You don’t get to vote without unless you are a property owning male and have done a material sacrifice for the country, I.E military service, donation of your STEM educated time, peace corps, significant monetary donation based on a % of your income, etc.

        1. avatar Hydguy says:

          Arc, unfortunately the courts currently say otherwise. And while it’s true that all gun laws are technically unconstitutional, until the Supreme Court upholds that in a case, there will continue to be laws that infringe on them.
          And since the closest case we currently have on ‘military style’ firearms is US v Miller, I’d take that decision over what is currently going on, as it means that the tie to ‘militia use’ means any military style firearm, including SBS, SBR, and many others. If it was or is currently used by a military, it’s protected from being regulated.
          What would we lose if this interpretation is upheld? Belted magnums, some oddball BR cartridges, some manufacturer specific cartridges (45GAP, .357Sig, ect).

        2. avatar arc says:

          Haha funny guy here real funny guy!

          The courts and all of their pompous bigwigs are a thousand miles away in what might as well be a foreign land. They can write all their asinine opinions down on all the toilet paper in the world but they are powerless without someone to enforce their edicts. If you own things the high and mighty court thinks you ought not own, then ensure they are outside of the court’s knowledge. Courts are not all knowing, they are not all powerful, and plenty of people in America really couldn’t give a squirt of piss what the courts have to say.

          The COTUS is the supreme law of the land, not any court’s opinion. Owning any weaponry is both legal and moral, you run the risks of having to contend with treasonous powers that unlawfully deny this and may attempt to destroy your life over it. There are powers everywhere that wish to destroy peoples lives for any number of reasons, corporations, criminals, treasonous politicians, foreign powers, your neighbors, the junkie down the street, the courts can pick a number and get in line.

        3. avatar arc says:

          Bring back the edit button.

          Unless a court battle directly involves you and you have liabilities in it, the courts opinion is of little relevance.

        4. avatar Hydguy says:

          So you have a bunch of machine guns, short barreled shotguns, and other stuff laying around to prove your point, right? A box of 40MM HE, perhaps?
          It’s cute that you play a lawyer in the comment section, but we both know you don’t have anything like that.
          Funny thing is I have known people who do, and they don’t run around on the web saying the stuff you do, because they are smarter than you.
          So please, keep playing the internet tough guy. It very humorous to read your stupid wailing and gnashing of teeth..

        5. avatar arc says:

          Of course everyone knows I don’t have anything like that! First rule of opposing bad legislation, activism, being involved in politics, etc etc etc etc, make sure you yourself are squeaky clean or your dirt is so deeply buried and so remote that no one has the resources to dig it up.

          However, my point still stands. The court is not all knowing and if you want your rights, seize them, exercise them, and exercise your right to privacy as well, its really that simple.

  3. avatar Stateisevil says:

    What’s the definition of insanity again? These government kourts are not going to save us, even if they wanted to.

    1. avatar jwm says:

      The definition of insanity is to look forward to war.

      1. avatar strych9 says:

        You can fairly well tell that most of the people who prattle on about “CW2” or some other bumper-sticker sloganeering bullshit on this topic have never even been in a fist fight.

        Yeah, there’s a few with experience who talk like this but not many.

      2. avatar klaus Von Schmitto says:

        Especially a civil war. Seen one. A real one. Not pretty.

        1. avatar uncommon_sense says:

          klaus Von Schmitto,

          No question: a civil war is horrific and ugly.

          Also no question: the abject horror and ugliness of the countless violent assault, rape, robbery, and murder victims who our government forcibly disarmed, and the countless people whose lives government ruined for the “crime” of having effective self-defense.

          Which is worse? I don’t know. Both are terrible. If I had my choice, neither one would happen. Tragically, it seems that one or both are part-and-parcel of the human condition.

  4. avatar jwm says:

    I got in on freedom week for my Glock. Woo Hoo. When the AWB is struck down I will buy something that takes 30 round mags as standard. Just because.

    1. avatar M1Lou says:

      I was in California on a business trip during freedom week. It was a lot of fun doing gun shop tourism. All except for one shop that was being asshole sticks in the mud and were telling everyone it was still against the law, blah, blah, blah etc. I didn’t buy mags or anything as I wanted the locals to be able to buy what stock was there. I did buy about half of an AMD-65 for cheap at one gun stores bargain table.

  5. avatar KGM says:

    California government looks upon its unwashed, WalMart, shopping, LEGAL LAW-ABIDING AMERICAN CITIZENS with disdain, never to be trusted. Proof? Its illegal never ending “gun safety” laws.
    Back to work you dirty serfs, we the political elites, are hungry for more of yours.

  6. avatar Prndll says:

    I couldn’t even legally have a ruger mkIII 22/45 plinking pistol over there. A 22lr little bit of nothing….and we’re beingtold about ‘weapons of war’!

    There are those that truly believe that only cops and the military should have guns. There are certain US states ran and controlled by people like this. This is part of what makes the difference between the US and the rest of the world. In the US, everyone has the them. As it should have always been.

  7. avatar Jim from LI says:

    I’m getting quite tired of how the terminology has been perverted, much like how an “illegal immigrant” has become an “undocumented refugee”, so that now “gun control” is being labeled as “gun safety”. Gun safety is a set of practices as embodied in the 4 key rules we’ve heard from NRA safety courses, Jeff Cooper, and countless others. What we’re hearing from the democrats, media, etc has nothing to do with safety except for the fact that in their minds we won’t be “safe” from guns until the citizens are disarmed.

    1. avatar Toni Smith says:

      except that the “reality” in their heads and what really happens when the citizenry are disarmed are diametrically opposed. When Civilians no longer have the means of defence that is when the govt will be sharpening its knives for the citizenry’s blood. it may not be the first leader it may not be the second after the people are disarmed but you will end up with one very soon who has no regard for the lives of those they rule and will kill anyone who disagrees with them even on the smallest thing.

    2. avatar Hannibal and the Elephants says:

      Likewise I am fed up with this nonsense of “assault weapon.” You ask them so what is an assault weapon and they answer, whatever we want it to be!

  8. avatar Shawn says:

    Benitez was slapped in the cock once, he WILL uphold the ban. The higher courts WILL uphold the ban and SCOTUS will not bother. The precedence is already set that gun bans are within the states rights including confiscation. Now to make gun ownership totally illegal and punishable be execution without trial. Unless you’re illegal or a criminal. The magazine capacity band will be in the end up held in the state. Supreme court will not bother. Or rule for California because of the Supreme Court is also extremely anti-gun.

    As far as gun rights are concerned California doesn’t think you should have any. The courts in California HATE gun owners and want all gun owners forcibly disarmed or better yet the state should just go door to door confiscating guns and killing everyone found with one and make sure to kill there entire families including children. Judges in California don’t want the cockroaches (which is what they think of you) to be armed. After all gun owners are a threat to the states monopoly of power and all threats to the state need to be eliminated even if the state has to kill 8 million people, a full 20% of the population.

    I expect this lawsuit to fail. Once it doesThe California legislature will say all semi auto everything is illegal And the people need to turn them in. And 2028 gun ownership will be punishable by execution without trial.

  9. avatar John Lychwick says:

    Those who are willing to give up their freedom for safety will end up with neither.
    Tyranny and mayhem is what they will get and tyranny and mayhem is what they deserve.

  10. avatar Green Mtn. Boy says:

    Back to the Horny Hicks what is the definition of is,is……

  11. avatar John Lychwick says:

    FREEDOM IS DANGEROUS. That’s why the liberal wants to take away as much of your freedom as they can get away with.

  12. avatar Hannibal says:

    If they’re smart, AR-makers will stock up a bunch of items just in case a similar thing happens and California has a week where they can buy up whatever they want in terms of rifles.

    1. avatar I Haz A Question says:

      Most small business don’t have the money to just “stock up stuff” and have it lying around. They need to turn around inventory to make profits so they can earn a living.

      1. avatar strych9 says:

        Not to mention that it depends on where they’re located. Something like 13 states have an “inventory tax” of some type that is assessed at a certain time of the year.

        There are other tax considerations as well. Some at the federal level could be used to your advantage, others would hurt you depending on how exactly the items in question are listed for tax purposes.

        I doubt most small businesses are up on their tax code enough to take advantage of such things.

  13. avatar swampcat says:

    Good luck trying to get the courts to overturn any gun ban.

  14. avatar Rev. Philip E. Evans says:

    Once upon a time, California had to petition the United States Government and people of the United States for permission for California to join the United States Of America as a “state”. The US Government and the people of the United States can also decide to remove California from the USA and seal off its borders! It’s never been done before, but it could!

    1. avatar Hannibal and the Elephants says:

      In retrospect a huge error. However, if I’m not mistaken, a necessary evil for winning what eventually became the Civil War. California was a “Free State” (oh, the irony hurts) and supplied gold to the Union.

  15. avatar Accur81 says:

    I applaud and support the FPC, SAF, and Calguns. The Left has a multi-pronged anti-gun attack. Let’s have a unified multi-pronged pro-freedom strategy. Those who don’t applaud the FPC are short-sighted. Lots of Californians are now packing standard capacity mags simply because of freedom week.

    Don’t want to comply with unconstitutional gun laws? That’s oustanding! Just take a better attitude towards those trying to make change through the courts. Ever accused of a crime? The court system will be introducing itself to you. Everyone trying to make our court / legal system better has my support.

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