Category: Courts

Part II: Breaking the Assault Weapon Opinion Down Further

In yesterday’s post, I unpacked the court’s decision in Miller v. Bonta, striking down California’s assault weapons ban. In today’s post, I look at the case with a more critical eye. I first focus on matters of doctrine and then turn to style.

As a doctrinal matter, I see three important aspects to the case:

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Second Ruling Against California’s ‘Assault Weapon’ Ban Offers Supreme Court A Chance To Fix Heller
This could give the Supreme Court the opportunity to correct its errors in District of Columbia v. Heller, which otherwise could be the basis for effectively nullifying the right to keep and bear arms.

Last week, in Miller v. Bonta, U.S. District Court Judge Roger Benitez struck down California’s ban on so-called “assault weapons,” such as the ubiquitous AR-15, as a violation of the right of individuals to keep and bear arms for the militia purposes of defense against tyranny, insurrection, and invasion, as well as for self-defense against the more common variety of criminals.

Understanding that the Second Amendment was not adopted to protect hobbies and recreation, Judge Benitez implicitly rejected the notion, suggested by some, that AR-15s — semi-automatic variants of the automatic M16s used by the armed forces — are merely “modern sporting rifles,” instead concluding:

[T]he popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle … Therefore, this Court declares the California statutes to be unconstitutional. …

The Second Amendment protects any law-abiding citizen’s right … to be armed to defend himself, his family, and his home. At the same time, the Second Amendment protects a citizen’s right to keep and bear arms to use should the militia be needed to fight against invaders, terrorists, and tyrants. …

The evidence is clear … that the AR-15 … bears a reasonable relationship to the preservation and efficiency, as well as the effectiveness, of a modern well-regulated militia. It is therefore categorically protected by the Second Amendment. …

[T]he evidence overwhelmingly shows that AR-15 platform rifles are ideal for use in both the citizens’ militia and a state-organized militia. Quite apart from its practicality as a peacekeeping arm for home-defense, [it] can also be useful for war. In fact, it is an ideal firearm for militia service … It is therefore categorically protected by the Second Amendment.

Although the Supreme Court pretended otherwise in District of Columbia v. Heller (2008), defense against tyranny, not merely against criminals, is the primary reason the keeping and bearing of arms is expressly protected within the Bill of Rights. For example, in “That Every Man Be Armed,” constitutional scholar Stephen P. Halbrook noted:

Ten days after the Bill of Rights was proposed in the House (of Representatives), Tench Coxe published his ‘Remarks on the First Part of the Amendments to the Federal Constitution,’ under the pen name ‘A Pennsylvanian,’ in the Philadelphia Federal Gazette. Probably the most complete exposition of the Bill of Rights to be published during its ratification period, the ‘Remarks’ included the following: ‘As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the [Second Amendment] in their right to keep and bear their private arms.’

The Legal Trail Ahead

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Three young adults, gun groups sue over Minnesota’s 21 age requirement for gun carry permits

Three young Minnesotans are suing for the right to legally carry handguns in public, alleging that the state’s minimum permitting age of 21 is discriminatory.

The lawsuit, filed Monday in U.S. District Court in Minnesota, argues that even though U.S. citizens who are 18 years old are considered adults “for almost all purposes,” the state unconstitutionally bans them from carrying handguns outside their homes or automobiles for self-defense.

“There is simply no legal or constitutional justification that an entire class of adult citizens in Minnesota should be completely denied their fundamental, individual right to keep and bear arms,” said Bryan Strawser, chairman of the Minnesota Gun Owners Caucus, which is also part of the lawsuit.

Strawser’s nonprofit, in a statement late Monday, billed the suit as “the latest legal effort in the Caucus’ planned litigation in Minnesota to secure the right to keep and bear arms throughout the state.”

The three plaintiffs — Kristin Worth, Austin Dye and Axel Anderson — filed the complaint alongside the Minnesota Gun Owners Caucus, Second Amendment Foundation and the Firearms Policy Coalition. According to the lawsuit, they are also members of the respective groups.

They are suing Public Safety Commissioner John Harrington, Mille Lacs County Sheriff Don Lorge, Douglas County Sheriff Troy Wolbersen and Washington County Sheriff Dan Starry. The three sheriffs are being sued because they represent counties where each of the three plaintiffs live. Harrington’s department manages permit-to-carry applications in the state, and applicants must file with their sheriffs.

A spokesman for the DPS said Tuesday that the department does not comment on pending litigation as a matter of policy. Reached by the Star Tribune, Lorge said in an e-mail that “I will be inquiring with our attorney on the matter.”

Messages were also left seeking comment from Wolbersen and Starry.

The lawsuit describes the three Minnesotans’ desire to legally carry handguns for protection — even detailing the make and model of the guns they would like to carry. Worth, an 18-year-old Mille Lacs resident who works part time managing a local grocery store, described wanting to carry a gun for self-defense because her work closing down the store at night often finds her traversing the store’s dark parking lot alone.

Anderson, who is 18, works overnight shifts as a front-desk attendant at a Douglas County hotel. According to the complaint, his girlfriend was once accosted and chased through the hotel lot by a “group of unknown aggressors.”

Blair Nelson, a Bemidji attorney who signed the civil complaint, argued in the filing that “arms carrying was a right available to all peaceable citizens” throughout American history. Nelson wrote that “hundreds of statutes from the colonial and founding eras” required people between 18 and 20 to keep and bear arms in cases of fieldwork and road and bridge construction. The lawsuit claimed that such laws also required arms carrying by members of the public to travel and attend church or court.

Nelson wrote that the three Minnesotans who filed the suit fear running afoul of state law that could lead to penalties ranging from $3,000 fines and a year of incarceration on first offense or up to $10,000 and five years incarceration on subsequent violations.

Judge Benitez has done it again.

Miller v Bonta Judgment

The California assault weapons ban is unconstitutional.

California Penal Code §§ 30515(a)(1) through (8) (defining an “assault weapon” by prohibited features), 30800 (deeming certain “assault weapons” a public nuisance), 30915 (regulating “assault weapons” obtained by bequest or inheritance), 30925 (restricting importation of “assault weapons” by new residents), 30945 (restricting use of registered “assault weapons”), and 30950 (prohibiting possession of “assault weapons” by minors), and the penalty provisions §§ 30600, 30605 and 30800 as applied to “assault weapons” defined in Code §§ 30515(a)(1) through (8) are hereby declared unconstitutional and shall be enjoined

BLUF:

If Weber’s petition for a writ of certiorari with the U.S. Supreme Court is granted, those calling for SCOTUS to provide clarity may get their wish. Weber is asking the court to determine the proper standard of constitutional review of a law that impacts the core value of the Second Amendment.

SCOTUS asked to take up State v. Weber, Ohio case with Second Amendment implication

A man whose conviction for holding an unloaded shotgun in his home while drunk was upheld by the Ohio Supreme Court is taking his case to the Supreme Court of the United States (SCOTUS).

The case is State v. Weber, which as has been noted on our site, “involves a situation where despite the defendant’s wife telling police there was no longer a problem, they pressed their way in. There they found her admittedly inebriated but nonthreatening husband who, while he did have a shotgun, told police it was not loaded, which they proved for themselves.”

Weber was charged with violating R.C. 2923.15(A), which states: “No person, while under the influence of alcohol or drugs of abuse, shall carry or use any firearm or dangerous ordnance.”

After a bench trial, Weber was found guilty and sentenced to 10 days in jail with all 10 days suspended. He also was placed on community control for one year, ordered to complete eight hours of community service, and fined $100.

When the Twelfth District Court of Appeals court upheld his conviction, it ruled as follows:

Furthermore, R.C.2923.15 does not, as suggested by appellant, criminalize the mere presence of a firearm in the home of an intoxicated person. Nor does the statute, as suggested by appellant, prohibit a person from carrying or using a firearm after consuming alcoholic beverages. Rather, the statute only prohibits the use or carrying of a firearm by a person who has imbibed to the point of intoxication.

Mr. Weber appealed to the Ohio Supreme Court, and that body narrowly ruled against him as well.

In a dissenting opinion, joined by Justices Sharon L. Kennedy and Judith L. French, Justice Patrick F. Fischer write that courts have been divided about the proper way to test the constitutionality of firearm laws since the U.S. Supreme Court issued its landmark District of Columbia v. Heller decision in 2008. He observed the Weber decision follows an interest-balancing test created by federal courts. He suggested Ohio adopt another approach that focuses “on the text, history, and tradition of the Second Amendment to see if the challenged law or rule is consistent with the scope of the right as originally understood.”

Justice Fischer also noted that state and federal courts would benefit from more clarity from SCOTUS on how to evaluate challenges to laws claiming to violate the Second Amendment. He wrote that instead of using the “convoluted” two-step approach, the Court should follow the Heller and McDonald decisions and look at the text, history, and tradition of the Second Amendment.

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24 states urge Supreme Court to take case challenging NJ large-capacity magazine ban

24 states, led by Arizona and Louisiana, have filed an amicus brief urging the Supreme Court to take a case seeking to overturn New Jersey’s ban on high-capacity magazines — arguing that such a ban criminalizes possession of commonly-used firearms and violates the Second Amendment

“The Amici States the Attorneys General serve are among the forty-three states that permit the standard, eleven-plus capacity magazines that New Jersey has banned…and have advanced their compelling interests in promoting public safety, preventing crime, and reducing criminal firearm violence without a magazine ban such as the one here,” the states write in an amicus brief.

The 2018 law bars “large-capacity” magazines that can hold 11 rounds or more, and was upheld by the Third Circuit Court of Appeals last year. It also bars the ownership, not just the sale of such magazines. The New Jersey gun association challenging the law has asked for the Supreme Court to take the case.

“New Jersey’s law criminalizes mere possession of commonly-used arms even in the home for self-defense, and therefore the law strikes at the core of the Second Amendment,” the states argue. “New Jersey’s outright ban on the Affected Magazines is inconsistent with the Second Amendment, and the Third Circuit erred by concluding otherwise.”

In the brief, the states argue that 43 states permit the magazines that New Jersey is banning, and are used in handguns for self-defense.

Along with Arizona and Louisiana, the states signed onto the brief are: Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, North and South Dakota, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia and Wyoming.

“New Jersey lawmakers are operating in total ignorance of self-defense, our Constitution, and the will of the people to uphold both,” Arizona Attorney General Mark Brnovich said in a statement. “We hope the Supreme Court will hear this case and reverse this misguided attempt to erode our rights.”

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