California has banned assault weapons since 1989. After a recent SCOTUS decision, that may end.
Assault weapons like the AR-15 rifle remain banned in California, but maybe not for long.Joe Cereghino / Wikimedia Commons C.C. 2.0 Generic License
The horrifying mass shooting in Highland Park, IL—a wealthy suburb of Chicago—on July 4, 2022, was the third such gun massacre in the United States since May 14. The seven people killed by a rooftop shooter reportedly wielding a high-powered assault rifle brought the death toll in the trio of shooting sprees to 38—including 19 children on May 27 in an Uvalde, TX, schoolhouse shooting—with dozens more wounded.
The alleged shooter in Highland Park purchased his assault weapon legally, according to investigators, even though in 2019 police had confiscated 17 knives and a sword from his home after he threatened to “kill everyone” there. The gunmen in Uvalde, and in Buffalo, NY, where 10 people were slain in a grocery store, also used assault rifles which they obtained through legal means.
That’s not possible in California, where assault weapons were banned in 1989. Republican Gov. George Deukmejian signed the ban, which passed the state Senate by a single vote, following the massacre of five schoolchildren, and shooting of 30 others, by a mentally disturbed drifter in Stockton.
While the ban certainly has not eliminated mass shootings (defined as any gun incidents where at least four people are wounded or killed) in California, a 2022 study by the Public Policy Institute of California found that Californians are about 25 percent less likely to die in a mass shooting than citizens of other states. Data compiled by Quinnipiac University economist Mark Guis also showed that state-level assault weapons bans resulted in “statistically significant and negative effects on mass shooting fatalities.”
Only seven states, plus Washington D.C., have assault weapons bans in place.
But even as the country still reels from the trauma of three massacres carried out using assault rifles in just over seven weeks, California may be on the verge of seeing the deadly weapons legalized again after 33 years—thanks to a decision handed down on June 23 by the U.S Supreme Court. A petition filed in the Ninth Circuit Court of Appeals on June 30 asks the court to uphold a federal judge’s earlier ruling striking down the assault weapons ban as unconstitutional, citing the Supreme Court decision a week earlier.
How did we get here?
What Did the Supreme Court Say Now?
In its first major gun safety decision since 2008, the court struck down a New York State law that required gun owners to provide a “proper cause” for why they should be granted a permit to carry a concealed firearm outside of their own home. A “proper cause” could be a job that required carrying a lot of cash around, or if a person were subject to threats of harm or death, for example.
In the case New York State Rifle and Pistol Association v. Bruen (Kevin Bruen is New York’s state superintendent of police), the six conservative judges on the Supreme Court voted to strike down the 109-year-old New York law. The three judges in the court’s liberal bloc dissented. Writing for the majority, Justice Clarence Thomas, said that no other right protected by the Constitution required “demonstrating to government officers some special need.” Thomas wrote that the right to bear arms, under the Second Amendment, was not a “second-class right.”
By 1987, most states had some version of the “proper cause" requirement, with 16 states banning carrying a concealed firearm completely, and only one allowing concealed carry with no permit. Three decades later, not a single state banned concealed carry, and 16 allowed citizens to carry concealed guns without a permit.
In 2022, there are only six states other than New York that employ some version of the “proper cause” requirement for obtaining a concealed carry gun permit. California is one of them. (Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island are the others.) The court’s ruling appears not to automatically strike down those laws—but lawsuits challenging them appear likely, and if so, the new precedent set by Bruen would almost certainly apply.
Why is California’s Assault Weapons Ban in Danger?
Five years before the federal government instituted a nationwide ban on assault weapons, as part of the 1994 Violent Crime Control and Law Enforcement Act (better known simply as the “Crime Bill”), California passed its own ban on the semi-automatic, military-style weapons. And unlike the federal ban which expired in 2004, the state’s ban has remained in effect.
But in June of 2021, a judge in the U.S. Southern District of California court in the case Miller v. Bonta decided that the then-32-year assault weapons ban violated the Second Amendment. Judge Roger T. Benitez—who was nominated to the court in 2003 by Republican Pres. George W. Bush despite being rated as “not qualified” by the American Bar Association—had previously blocked two other California gun control laws.
Benitez telegraphed how he would rule in the opening paragraph of his 94-page opinion when he waxed rhapsodic about the AR-15 rifle, calling it “a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle.”
California Attorney General Rob Bonta quickly appealed the Benitez ruling to the Ninth Circuit, which just three weeks after the district judge’s decision, placed a “stay” on the order, allowing the assault weapons ban to remain in place.
Just a week after the SCOTUS ruling in Bruen, however, Miller—a board member of the gun rights group San Diego County Gun Owners—filed a petition with the Ninth Circuit, saying that “in light of” the Bruen decision, California (represented by Bonta) now had “no meaningful prospect of success” in defending the assault weapons ban.
SCOTUS Ended ‘Two-Step Approach’ to Deciding Gun Laws
Why would the Supreme Court’s Bruen decision negate California’s “prospect of success” in keeping its assault weapons ban on the books? The answer is in the new “test” for evaluating gun laws imposed by SCOTUS in the Thomas-penned decision.
Until the Bruen decision, courts used a “two-step” formula for deciding whether a gun safety law should be upheld or thrown out. The first step was for the court to decide if a law placed a “burden” on the right to bear arms, as stated in the Second Amendment. Since the very nature of gun control laws is to place some sort of restriction on gun ownership and use, the answer to the first step’s question was usually “yes.”
Then came the second step, which was based on factual evidence. The question was whether a gun safety law could be justified by a state or local government based on how it served the public interest. Because even conservative courts generally agree that reducing gun deaths and violence serves the public interest, the second test came down to facts. How well did a law actually work to achieve its purpose of increasing public safety?
In his Bruen opinion, Thomas dealt with the second test by simply doing away with it.
“The Court rejects that two-part approach as having one step too many,” Thomas wrote. Instead, the state imposing the gun control law must show that the legislation is “consistent with the Nation’s historical tradition of firearm regulation.” But Thomas gave no substantive guidance as to how courts should decide what counts as “consistent” with U.S. history.
Will California’s assault weapons ban pass the new “historical tradition” test as outlined, albeit vaguely, by Thomas and the court majority? The answer will be up to the Ninth Circuit, which as of early July had announced no timetable for ruling on the Miller petition.