It’s interesting to see SAF and CalGuns Foundation announcing they are going after the Assault Weapons Ban in California. While I’m wary of AWB suits in general, they have a unique angle. I’ve had this case in my tabs for a few weeks now, meaning to write something on it, but hadn’t taken the time to do the research. The case has an Iraq war veteran at the center of it, an individual who has repeatedly been unjustly arrested several times because California cops don’t know what an assault weapon is (which is understandable, considering no one else really does either). The case is also narrow, rather than being a kitchen sink of issues.
The argument, as best I can tell, is that the California AWB can’t survive constitutional scrutiny due to vagueness, and due to the fact that it’s interfering with the exercise of a fundamental constitutional right. The interesting thing about the vagueness angle, is that it’s already been tried before, and prevailed in a case in Ohio in the Sixth Circuit, and as best as I’ve found, none have outright failed either. These cases were pre-Heller, and I would think Heller should change the dynamic a good deal.
Given the Heller II case has upheld an Assault Weapons Ban as constitutional, at this point a circuit split is likely on the matter, which makes it likely the Supreme Court will take a case to resolve the split. This lawsuit looks interesting enough, and the plaintiffs well selected, that this would be something we’d want before the Court if they choose to resolve the conflict. They might be more open to a constitutional argument that includes a strong element of vagueness.
That said vagueness challenges are tough to win, though this area of gun control seems particularly ripe for it. When you regulate by cosmetics rather than function, it necessarily is going to include a large degree of vagueness. This centers around things like prohibiting barrel shrouds, which even Carolyn McCarthy will tell you is a “shoulder thing that goes up,” or prohibiting flash suppressors, but not muzzle brakes, and how is law enforcement to know the difference? There’s also, in California, the issue of the bullet button, which has effectively neutered their assault weapons ban for all practical purposes. Essentially as long as it takes a tool (and a bullet has been determined to be a tool) to drop the magazine, it’s not considered “detachable,” and therefore none of the assault weapon characteristics apply. The problem is that police in California haven’t been well trained to know the difference.