Over the weekend, the U.S. Court of Appeals for the 9th Circuit stayed a permanent injunction against California’s “assault weapon” ban that a federal judge issued on October 19. That means the law, originally enacted in 1989 and subsequently broadened, will remain in effect while the appeals court hears the state’s appeal in Miller v. Bonta. But if the 9th Circuit carefully considers U.S. District Judge Roger Benitez’s reasoning in issuing the injunction, it is hard to see how the appeals court can conclude that California’s ban is consistent with the Supreme Court’s Second Amendment precedents.
Benitez had previously ruled that the “assault weapon” ban was unconstitutional. In August 2022, the 9th Circuit vacated that June 2021 decision and instructed Benitez to reconsider the case in light of New York State Rifle & Pistol Association v. Bruen, the June 2022 case in which the Supreme Court concluded that New York had violated the Second Amendment by requiring residents to show “proper cause” before they were allowed to carry handguns in public for self-defense.
Bruen explicitly rejected the “interest-balancing” tests that federal courts had commonly used to uphold gun control laws. It instead prescribed a historical test aimed at determining whether a given regulation is consistent with the right to keep and bear arms as it was traditionally understood. “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” Justice Clarence Thomas wrote for the majority. “The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.'”
Applying that test to California’s “assault weapon” ban, Benitez first considers whether the targeted firearms are “in common use,” meaning they are “typically possessed by law-abiding citizens for lawful purposes.” Beginning with its landmark 2008 decision in District of Columbia v. Heller, the Supreme Court has said weapons fitting that description are covered by the Second Amendment.
Hellbound and Down 