The decision is here. It’s important to note that this is a California state court and not federal court, but since the McDonald decision, the Second Amendment is applicable to the states and state courts are bound to consider it. Well, consider it the California Appeals court did, and decided the right was essentially meaningless, and because an AK-47 is at least as dangerous as a short barreled shotgun, it could be banned, since Heller agreed short barreled shotguns could be banned. Dave Hardy notes:
The inclination of the court is obvious. The situation probably indicates how essential it is to “develop a record” at the trial level. What proportion of firearms are “assault weapons”? One of the answers is that over 20% of current rifle production is by manufacturers who make nothing but AR-platform rifles.
Trial courts are finders of fact, so having trial evidence that these are, in fact, weapons in common use and not unusual (I’d note that Heller says dangerous and unusual, not dangerous or unusual), could help on appeal. I also don’t think one can single out a single model of firearm. I could find plenty of handguns by model or description that are unusual, but few would argue ought to be banned because they fit inside a broader type of gun that’s common. I think you have to consider firearms by functional class, in other words, can you ban or restrict semi-automatic rifles? Bolt action rifles? Lever action? Machine guns? Not by singling out a single model by name, or some obscure feature that doesn’t have any real bearing on how people normally classify firearms.
But then again, I don’t really think the courts give a crap, to be honest. I’ve gotten little indication that most state and lower federal courts, and even most federal circuit court show much interest in seriously evaluating the current state of the law, and making an honest attempt to construct a meaningful right.
Based on reading the decision, they pretty much just twisted the words to get what they wanted. Given that they also relied on Miller incorrectly, we know their end goal.
“Heller says dangerous and unusual,”
As a side note, this is probably the avenue that will get suppressors deregulated, and perhaps change the lengths for what constitutes having a “short” barrel.
Maybe…. if we can get more friendly justices on the Court. If we can’t, and we can’t if we don’t put someone friendly in the White House in 2016, we’ll be lucky just to maintain status quo. I actually think if we don’t win in 2016, the Second Amendment is dead letter.
And that assuming all 5 of the Heller justices stay on the bench.
Geez Louise. More of the sad sack again?
Although this case wasn’t an example of so-called strategic litigation undertaken by California’s Second Amendment advocacy groups (e.g., The Calguns Foundation), the result would have been the same.
Gene Hoffman is on record as being opposed to litigating Second Amendment issues “on the facts.†So evidentiary trial records will continue to be non-existent in California — as will successful defenses of Second Amendment rights.
Outside California we are seeing the same. Here in Maryland the judge who was reviewing a TRO request for MD’s AWB said point blank her inclination is that AWBs (as defined by MD) are “not a class of firearm”, and therefore bans on that are not precluded by Heller. She went even further to say that she was leaning towards the opinion that these rifles are, “not even covered by the Second Amendment.”
It’s the 2A Two-Step for firearm hardware: first place it outside the “core” of 2A; then wish it away using rational basis cross-dressed as heightened (intermediate) scrutiny.
One more point: if you follow this rationale to its (il)logical end, the “commonality” of the firearm is of little or no import. Because if the firearms in question are not germain to the Second Amendment (because they fall outside its umbrella) they are not “guns” anymore and no arguments from us will matter.
So don’t get trapped talking about the common-use test. The issue here is more basic: is an AR-15 a firearm under Heller?
I think your assessment may be correct, and is why I do not believe Heller was the victory we all thought it was. Reasonable regulation of “dangerous and unusual” firearms is a fatal flaw! Those are the very weapons protected by the 2A! What militia doesn’t use “dangerous” firearms a common citizen might find “unusual”? How is an AR-15 NOT appropriate to the Second Amendment (unorganized) militia? Good grief, folks, we need to challenge these “public servants” to start making sense and to hold them to account when they don’t!!!! Until all Federal infringement is outlawed as the Amendment clearly states, then the Amendment is already dead. “Reasonable regulation” just means you don’t have any right at all, only privileges the Feds think are “reasonable!”
Let the States regulate their own citizens as their Cinstitutions permit. My State Constitution reads the same as the Federal. That SHOULD allow me unfettered use of military firearms to protect my and my State’s freedom from federal tyranny (like Obamacare). But unwritten exceptions for “reasonable regulation” disarm the very people in whom our Founders entrusted the hard-fought liberty for which they so selflessly struggled and sacrificed.
Heaven help us!!!!
With much frustration, but great respect,
– Arnie
The Heller and McDonald victories are still important, but we’ve lost a lot of elections between Heller and now that have been critical. Heller and McDonald gave us a beachhead. It’s quite possible that’s all that could be accomplished with the 5-4 majority that gave us both those decisions, and to take this any further requires adding another strong supporter of the Second Amendment on the Court. Unfortunately, that’s not possible until 2017, and that’s only assuming we win in 2016.
Thank you, Sebastian. I agree there were gains in Heller (especially recognition of our individual right), and they’re not to be slighted, but I don’t think it can be depended upon to protect our right to the very arms the 2A deemed necessary for the security of a free State. And right now 2014 looks scary, and 2016 could be a nightmare. I’ve been increasing my arsenal lately, because I don’t think half my guns are going to be purchasable after 2016 – if not before.
Respectfully, Arnie
If the AK-47, which is literally one of the most common semiautomatic rifles in the world, can be deemed “unusual” then no firearm is safe under Heller. There are a hundred million AKs or more out there.