On Friday, March 15, 2024, Federal District Court Judge Josephine L. Staton granted the State of California’s motion for summary judgment in Rupp v. Bonta, upholding California’s ban on so-called “assault weapons.”
I will now attempt to distill her 64-page opinion but will provide a link below so that you can read it for yourself.
She held that “Plaintiffs have not shown that the assault rifles at issue fall within the Second Amendment’s plain text.” But, “in an abundance of caution, the Court proceeds to Bruen’s second step.” Judge Staton further wrote, “Examination of that tradition provides two alternative grounds on which to uphold the AWCA.” And, “that ratification of the Fourteenth Amendment is the operative period from which to discern the public understanding of the Second Amendment.” And that there is an on-all-fours tradition dating back to that period of banning the possession of dangerous-and-unusual weapons.” “Here, there is no genuine dispute as to a material fact on either the dangerous prong or the unusual prong. Therefore, the Court determines that, on the record before it, assault rifles are dangerous and unusual as a matter of law.”
I suspect that the Plaintiffs do not agree that the banned firearms are unusual given that one of them, the AR-15, reportedly is possessed by civilians in the range of 20 to 30 million. She continued with “[T]he Court must determine whether the semiautomatic assault rifles at issue here pose such an “increased danger” beyond that inherent in handguns that they can be regulated in a manner similar to fully automatic machine guns. Conducting that inquiry, the Court concludes that there is no genuine dispute of material fact that assault rifles are “dangerous.” Indeed, Plaintiffs do not dispute the vast majority of the Attorney General’s evidence relevant to that inquiry.”
A fun fact is that long guns, in total, account for a tiny fraction of the number of homicides committed with firearms, and AR-15s and the like account for a tiny fraction of the number of long guns used to commit homicides. Unfortunately, they appear to be the weapon of choice for those who commit mass murders and it is those murders that make the news. Which Judge Staton summarized as, “[U]ndisputed evidence in the record establishes that the AR-15, the prototypical semiautomatic assault rifle, is substantially similar to the M-16, is significantly more lethal than a handgun, and can fire up to 120 rounds in three minutes. Semiautomatic assault rifles are disproportionately used in mass shootings, including the deadliest ones, compared to the percentage of firearms they represent.”
But wait, there’s less from Judge Staton.
“Second, in the alternative, if Reconstruction-and-onward practice is not sufficient to establish a cognizable tradition where that tradition was not widespread at the Founding, then the AWCA should be sustained under “the more nuanced approach” that Bruen contemplated for “cases implicating unprecedented societal concerns or dramatic technological changes.”
According to Judge Staton, “The record before the Court establishes that the use of assault rifles to perpetrate mass shootings is an unprecedented societal concern. Indeed, both elements of that concern—mass shootings and the use of assault rifles therein—are of a recent vintage.” “However, the Court also determines that Bruen’s more nuanced approach is appropriate here because the high-velocity, rapid fire, lightweight, and concealable nature of assault rifles represents a dramatic technological change. As explained in the Court’s dangerous-and-unusual analysis, assault rifles have a historically unparalleled capability to inflict mass casualties.”
A fun fact is that, under California law, long guns are not concealable firearms. For a firearm to be considered “concealable” under California law, it must have a barrel length of less than 16 inches. A rifle that has a barrel length of fewer than 16 inches is an NFA firearm and their possession is illegal under California law save for a few exceptions not available to the general public and so the only rifles at issue in this case are rifles with a barrel length greater than 16 inches and shotguns with a barrel length greater than 18 inches. The overall length for both cannot be less than 26 inches which is not exactly something one can conceal in a pocket or in one’s clothing.
Moreover, NYSRPA v. Bruen ended the debate as to whether or not a type of firearm that is concealable (concealable handguns) is protected by the Second Amendment. They are protected arms even if they are small enough to fit in the palm of your hand. There are 19th and 20th-century state supreme court opinions that held firearms easily or ordinarily carried concealed are not arms protected by the Second Amendment but Bruen only leaves open the question as to whether or not short barrel shotguns and rifles are arms protected by the Second Amendment.
That does not mean that the carrying of weapons concealed can’t be prohibited. The US Supreme Court in NYSRPA v. Bruen reiterated its holding in District of Columbia v. Heller that prohibitions on concealed carry do not violate the Second Amendment. But rifles and shotguns of a legal length are neither concealable nor easily or ordinarily carried concealed on one’s person.
Bizarrely, in applying her “nuanced” approach, Judge Staton cited a 1686 New Jersey law that banned “pocket pistols” which the Supreme Court in Bruen explicitly rejected.
“Finally, the Court finds support for its application of Bruen’s more nuanced approach in Heller’s treatment of bans on machine guns. Heller stated that it would be a “startling” if the Second Amendment rendered the federal machine gun ban unconstitutional, and it suggested that “M-16 rifles and the like[] may be banned.” 554 U.S. at 624, 627. But if Bruen’s more nuanced approach cannot tolerate a ban on possession of semiautomatic assault rifles for lack of sufficiently similar historical laws, then Bruen’s more nuanced approach also could not tolerate a ban on possession of fully automatic machine guns.”
Ironically, the government in District of Columbia v. Heller argued that machineguns are not “dangerous and unusual weapons”
Judge Staton then closed her opinion by giving Attorney General Bonta five days to write and submit to her the final judgment for her signature.
Notwithstanding that the Plaintiffs here can soon file a petition for a writ of certiorari before judgment with the Supreme Court, there are currently seven “assault weapons” and/or “large capacity” ban cert petitions already pending before the US Supreme Court. None is petitioning from a final judgment of a court of appeals.
If there are not four votes to grant them (5 votes to grant the rare, lone petition before judgment) then it will likely be years before the plaintiffs will be in a position to file a petition for a writ of certiorari after judgment (the typical type of cert petition filed). Justice Thomas turns 76 years of age in June. Justice Alito turns 74 in April. Shortly before NYSRPA v. Bruen was published on June 23, 2022, Justice Thomas was hospitalized for a week due to an internal infection. Justice Thomas wrote the majority opinion in Bruen.
Nobody lives forever and despite the appointment of Justices Gorsuch, Kavanaugh, and Barrett to the Court, the only Second Amendment cert petition SCOTUS has granted since Bruen is a case where the government lost before a Court of Appeals. The Court did not grant it because it is a Second Amendment case. To paraphrase Justice Kagan, the Supreme Court always grants a cert petition when a Federal law is invalidated. No circuit split is required in such cases.
Order granting state’s motion for summary judgment.
CourtListener Docket for Rupp v. Bonta.
Image attribution. Creative Commons Attribution-Share Alike 4.0 International.
