Lawsuit Challenging California ‘Assault Weapon’ Ban Filed in San Diego Federal Court

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Dan Z for TTAG

A press release from the Firearms Policy Coalition:

Attorneys for three San Diego residents and one San Diego-based advocacy organization filed a federal lawsuit challenging California’s ban on so-called “assault weapons”. A copy of the complaint can be viewed or downloaded at www.firearmspolicy.org/legal.

“This District Court already ruled the state’s prohibition on the possession of large-capacity magazines is unconstitutional, and enjoined and prohibited enforcement of those provisions of the Code that would have prohibited their possession,” the plaintiffs say in their complaint. “Both implicit and explicit in this District Court’s ruling was the ability to use such magazines if otherwise lawfully possessed” in legally-possessed firearms. “Thus,” it goes on, “the prohibitions that attach to the possession and use of a certain legislatively-invented class of otherwise commonly used, constitutionally protected” firearms “are likewise invalid and should be stricken.”

“This is a straight-forward case to protect our clients’ constitutional rights and property,” explained attorney John Dillon. “The State of California’s ban on these firearms will fail constitutional scrutiny for the same reasons that its ban on firearm magazines did.”

“The government cannot ban the constitutionally-protected firearms at issue in this case,” said attorney George M. Lee. “We look forward to proving that the State’s statutes, policies, and practices at issue in this case are both unconstitutional and irrational.”

The case is supported by Firearms Policy Coalition (FPC), Firearms Policy Foundation (FPF), Second Amendment Foundation (SAF), and the California Gun Rights Foundation (CGF).

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.

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.calgunsfoundation.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.

comments

  1. avatar GS650G says:

    Doing the work the NRA won’t do as it caters to Wayne.

    1. avatar Mark N. says:

      The NRA filed two years ago to invalidate the law.https://www.nraila.org/articles/2017…ns-control-act (Rupp v. Becerra)

      It lost in a ruling issued on July 25, 2019. The trial judge basically declared that the Legislature could ban all ARs and it would be constitutional, because they are dangerous and unusual within the meaning of the1934 NFA.. http://michellawyers.com/wp-content/uploads/2019/07/2019-07-22-Order-Granting-Defendants-MSJ-Denying-Plaintiffs-MSJ.pdf

      Contrary to popular belief, the NRA through its affiliates is very actively litigating 2A cases in California.

      1. avatar uncommon_sense says:

        Mark N.,

        Speaking of litigation, how are these plaintiffs able to sue when they never actually owned “assault weapons” and California never actually arrested/prosecuted them for possessing “assault weapons”? I have always heard that the state has to arrest and prosecute you before you have standing to challenge such a law.

        I am seriously interested to know for an important reason: my state does not allow us to have accessible rifles or shotguns in the passenger compartment of vehicles. (They must be unloaded — in both chamber and magazine — and in a locked case or the trunk of the car and inaccessible to vehicle occupants.) I seriously want to try and overturn this law so I can have shotguns or rifles with loaded magazines (I am willing to keep empty chambers in compromise) in my back seat. Needless to say, whether or not the courts actually would overturn this law is a very risky gamble and I am not real keen on risking several years in prison in order to have standing. However, if I can somehow have standing without being arrested/prosecuted, that would be far superior.

        Your thoughts?

        1. avatar Baldwin says:

          “… (I am willing to keep empty chambers in compromise)…” Compromise??? No, no no! The endless game of giving up our rights is OVER!

        2. avatar Alex says:

          One of the requirements for filing a complaint in federal district court is proper jurisdiction, I.e. a federal question. In this case the that is satisfied by claims of a Constitutional breach. In this scenario, no one needs to have been arrested or charged of a crime, per se. The argument is that the state/city law has breached the Constitution, which in and of itself is a violation.

      2. avatar Nanashi says:

        So they lost because of a law they endorsed? Great.

        1. avatar Mark N. says:

          NOT! We are not talking about the 1984 ban. California’s original ban preceded it and was an outline for the federal ban, but the California ban has no sunset clause. Moreover, California has continually amended the law over the years, and the one being challenged is the newest version that required “Bullet Button assault weapons” (as defined by statute) be registered by July 1, 2019. (Actually, you just had to have your documents and photos in on time, the DOJ is still processing the back log last I heard.) The law in question redefined “assault weapon,” and now included a provision that Bullet Buttons, an end run around the “fixed magazine” requirement of the former law, were made illegal. Any BB equipped weapon had to be registered or made “featureless” before the first of this past year.

          A registered AW can only be taken between your house and the range, or a gun smith, must be transported unloaded and in a locked case, and cannot be sold, given away or inherited, or for that matter loaned to anyone not an immediate family member. Pretty crazy stuff. The NRA actively lobbied against the bill, but California at the time had nearly a supermajority in both houses (it has one now), and an only mildly anti-gun governor who signed the bill. The NRA was publicly insulted by a (democratic party) member of the House Public Safety Committee, and a physician who testified against the bill had he medical ethics and competency questioned by the same panel. All votes on that committee, and its sister committee in the Senate, had majority Democrats, and the votes were invariably split along party lines.

          There is no opposing any but the most truly idiotic bills presented here.

      3. avatar Marcus (Aurelius) Payne says:

        Why in hell is judge referencing a 1934 law when determining constitutionality. I know it’s old news, but this crap pisses me off.

        “I wonder if a high protein diet is recommended by the AMA, i’d better read through a Kurt Vonnegut book to find out.”

        1. avatar Mark N. says:

          Because the 1934 law defined the weapons subject to the law that were required to be registered and permitted. “Dangerous and unusual” weapons came within the scope of the law. See US v. Miller.

        2. avatar I Haz A Question says:

          My thought exactly, Marcus.

          “The trial judge basically declared that the Legislature could ban all ARs and it would be constitutional, because they are dangerous and unusual within the meaning of the1934 NFA.”

          The NFA is **NOT** the Constitution.

        3. avatar StLPro2A says:

          My copy of the Second Amendment doesn’t feature any “suitable for sporting proposes” or “in common use” clauses. Only “…..shall not be infringed.”

        4. avatar barnbwt says:

          Second-hand precedent; “Well they got away with X in the NFA in the Miller ruling, so that means Y that goes a little further must be totally constitutional as well by similarity”

          Clarence Thomas is absolutely right about the whole doctrine of Stare Decisis being a corrupt pile of shit.

        5. avatar Anymouse says:

          US v. Miller actually says that only militarily useful guns are protected by the 2A. Supposed “military arms” or “weapons of war” are exactly what is protected (or they aren’t protected and must be true assault rifles/machine guns). The NFA was upheld since no defense was presented and the Justices didn’t know of military use of SBS. The military also wasn’t issuing infantry machine guns, silencers, or SBRs. Now, all NFA items are common kit for soldiers and should be protected from regulation.

      4. avatar GS650G says:

        I don’t see the NRA in this suit. Meanwhile their internal legal battles consume members dues.

      5. avatar KGM says:

        I’d love to toss a few bucks to the ILA. However, worried that ole Wayne will SIPHON off some of it to pay for new suits, mega mansions, girl friends, vacations (not earned) to exotic locations, etc etc etc.
        So, 2A Foundation, FPC, GOA and several kalli state pro 2A groups will get it instead.

    2. avatar Deplorable Stan says:

      If the NRA does nothing else, it provides a huge distraction for the media while FPC and GOA continue to fly under the radar.

      I suggest supporting all three.

  2. avatar Draven says:

    Good luck with that one, guys….

    1. avatar B.D. says:

      Dude, that is still an awesome push. In San Diego? Hell yea. I lived there for waaaaaaaay too long. Grew up there and moved back a couple years ago to settle some family stuff after the passing of my father. It’s a mess. To even see a move like this attempted is astonishing.

  3. avatar Kyle says:

    Good job to the FPC , SAF, and Calguns. ( If I missed any, apologies.)
    Yeah, about the NRA , in addition to the travails of King Wayne, they have a problem that a bunch of A rated politicians have decided to earn F’s and don’t care. And of course let’s not forget the ” best friend in chief” . Oops

  4. avatar Adam says:

    Hopefully they get the same judge that struck down the magazine ban.

    1. avatar Mark N. says:

      That’s why they filed in San Diego.

      1. avatar SAFEupstateFML says:

        Whether or not California beats New York in who gets ridiculous infringement overturned first I wish them luck and should they be first may the precident be one we can use on our coast for the many lawsuits to follow.

  5. avatar Hannibal says:

    While they’re completely right I’m afraid that the courts- particularly those in places like CA- are very unlikely to rule as such in the near future.

    1. avatar pwrserge says:

      Watch the courts start to panic when RBG finally has an unfortunate encounter with a bucket of water.

      1. avatar OBOB says:

        I am still waiting for TRUE ‘proof of life’ I need them (THE DNC) to give FOX 100% access to her and we get to see her breath on a mirror and her refection in one to prove to me life and that she is NOT a vampire! or Cyborg!

        till then…I believe the witch is dead!

      2. avatar Texican says:

        Dude, youve got to give a warning before a comment like that! I almost snorted hot coffee! Thanks for the guffaw!

      3. avatar barnbwt says:

        I’m convinced they’ve been swapping her out with lookalikes for some time now. That, or we should be analyzing her superior genome for the key to immortality as a national strategic imperative. Survive three bouts of nasty cancer (two of which are almost entirely unsurvivable for any significant length of time; pancreas & bone), be missing numerous important organs (pancreas & colon), lose half your ribcage at an age when a bad cold will causes lethal pneumonia…she’s got more than leprechauns watching over her, I know that much. Maybe once she finally dies or something, we’ll learn –like we did with Cheney after he left office– just how medically fucked up she was the whole time and what preposterously expensive experimental treatments were lavished upon her corpse at tax-payer expense, simply to postpone the obviously inevitable. Maybe some good could come out of that, at least (though likely not affordable enough to benefit those same tax payers in their lifetimes)

        1. avatar Hannibal and the Elephants says:

          As an extremely highly ranked government official she has the healthcare (at taxpayer expense) that us mere mortals could never be allowed to have, unless you have nearly unlimited resources. I wonder how long she would have lasted had she been forced to accept “ObamaCare” as the only option as we mere mortals were obliged to do.

  6. avatar B.D. says:

    Wouldn’t that just be a major F.U. to the rest of CA? The most illegal immigrant infested city in CA pushing for 2A rights because people don’t feel safe and it’s a direct infringement on the constitution. Suck it lefties. While it may be reaching in that state, it’s simply just astonishing to finally see some legal action being taken. It will never be enough though, but it’s still something.

  7. avatar Darkman says:

    Attempting to nullify an unjust law within a system that allows unjust laws to be enacted. Relying on the opinion of a group of non elected bureaucrats. Who answer to no one. To determine if your 2nd A Rights are being violated. Kinda reminds me of the situation that started a little insurrection. Which led to the founding of a great nation based on a list of Rights that were being denied to it’s citizens. Keep Your Powder Dry.

    1. avatar Baldwin says:

      Well said.

  8. avatar Timothy Toroian says:

    I will laugh myself silly if that federal court over turns it. The left best not feel snug about the suit being in that court because maybe a couple or three of those judges are closet Constitutionalists.

  9. avatar Jason says:

    Dan:

    “Lawsuit Challenging California ‘Assault Weapon’ Ban Filed in San Diego Federal Court”

    This is an extremely misleading title and ought to be changed. The filing clearly indicates that they are seeking injunctive relief from:

    “For declaratory relief adudging that the definition of “assault weapon” pursuant to Pen. Code § 30515(a)(2) and (a)(5)…”

    These sections make it illegal to use a magazine larger than 10 rounds in a fixed magazine semi auto rifle. This very very small slice of the assault weapons pie is what they are after. Should they prevail, it would simply remove from the definition of “assault weapon” a fixed magazine firearm that has a magazine with a capacity of more than ten rounds. It would have no effect whatever on the “assault weapon” ban generally. They would still be banned.

    Now I realize the one bite at a time strategy is valid and have no issue with it here, but I am curious, did you even read the brief?

    1. avatar Jason says:

      Also the link to download the brief posted requires several more clicks to actually get to the brief. It is actually here:

      https://d3n8a8pro7vhmx.cloudfront.net/firearmspolicycoalition/pages/5381/attachments/original/1565909707/2019-8-15-miller-complaint.pdf?1565909707

  10. avatar enuf says:

    I wish them well and hope for their success. Who knows, maybe someday California will be a place I’d be willing to visit again.

    On the NRA doing it’s job posts, yes I think everyone knows all that still goes on for the most part. Doesn’t fix the problem of corruption within the Board of Directors or of how severe a liability Wayne LaPierre has become. When the NRA does the right thing, I will cheer for them. When they do the wrong thing, I’ll cuss ’em out and call for heads to roll. These two things can happen in the same paragraph!

  11. avatar M1Lou says:

    California looks at it like bugs on a windshield. Just turn on the wipers, spray it a bit and keep going. We have to keep trying though.

    1. avatar I Haz A Question says:

      Perhaps, but one of these days one of the lawsuits will be like a bird going through the legislative windshield.

      …or a rock…

      1. avatar barnbwt says:

        Or a bullet.

  12. avatar SteveO says:

    Maybe we should move out of state like people in the free states stated so many times.

    Make the wall, they said.

    Wish the San Andreas would just drop the state into the pacific, they said.

    You get what you ‘voted’ for, they said.

    Shall we go on?

    Or, could we all just unify around our regaining, keeping and expanding our [natural] liberties and kick ass as one? Where ever one resides?

    1. avatar HP says:

      You were supposed to save this comment until after Federal Red Flag laws and UBC’s get passed.

    2. avatar barnbwt says:

      The restrictions we have were borne out of places like CA and NY, where the corrupt powers that be were and continue to be bolstered in taxes, apportionment, and legitimacy by the contributions of ‘viewers like you.’

      But going by your attitude that you have no responsibility for your own situation…perhaps you should remain where you are, so we won’t have to worry about you “not may fault”-ing in a state that hasn’t yet lost its rights due to the efforts of like-minded expats.

      1. avatar SteveO says:

        Well, OK.

        Just to make you feel right, perhaps you can now join in those statements on a federal level. In case you haven’t been informed: https://www.congress.gov/bill/116th-congress/house-bill/1296/text.

        But hey, why not stay separated in all of our different tribes. And once the fuse is lit, good luck.

  13. avatar Green Mtn. Boy says:

    As the government is strictly prohibited from infringing on the keeping and baring of all arms,the second amendment,all gun control laws are unconstitutional.
    If the courts used strict scrutiny as they do with the first amendment,then all Magazine and firearm bans would be declared to be repugnant to the Constitution as they are.

  14. avatar Shawn says:

    Oh great. Another lawsuit that our side will lose since all the judges there hate gun owners and want all gun owners have there gun confiscated by force and all gun owners in the state and the nation rounded up and executed.

    The court and every court WILL side with the state every step of the way. But it doesn’t matter because EVERY court and judge in the country would side with the state anyway. SCOTUS WILL not hear it and if they do also will side with the state.

    The Democrats have open they called for the banning and confiscation of all privately held firearms and The elimination of gun owners and all oppose extreme gun control. Meaning they want to use the full force of the government to literally kill every single gun owner in the country. The Republicans have decided to preemptively surrender on the issue Since they also want gun ownership illegal (they only pretend to support it for a votes) and the courts hate us just as much As the Democrats do.

    When it comes to bigger gun related cases I have no faith in the courts. Because I know they are actively hostile towards the right to keep and bear arms and gun owners in general.

  15. avatar Ty says:

    I hope that the Firearms Policy Coalition does the same about the Mulford Act of 1967.

    Has there ever even been a Constitutional challenge made against the Mulford Act? Because if there has been the record of such is obscure.

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