The gun fight in court

California’s Department of Justice is holding the line as gun rights advocates push back in ways that could have dramatic consequences for state law.

In 2016, state voters passed Proposition 63, which banned magazines with a capacity to hold 10 rounds or more. Though a 2000 law restricted the sale and manufacture of new high-capacity magazines, existing owners had been grandfathered in. Prop. 63 effectively un–grandfathered them. Five gun owners and the California Rifle & Pistol Association (the state branch of the National Rifle Association) sued. After the courts agreed to place a temporary hold on the Prop. 63 ban, federal district judge Roger Benitez issued a searing opinion, holding that the Second Amendment also applies to commonly-owned high-capacity magazines. “Without a right to keep and bear…the magazines that hold ammunition, the Second Amendment right would be meaningless,” he wrote. California appealed the decision. In August 2020, the three-judge panel of the U.S. Ninth Circuit Court of Appeals agreed with Benitez. “Even well-intentioned laws must pass constitutional muster,” wrote Judge Kenneth Lee, a Trump appointee. “Firearm magazines are ‘arms’ under the Second Amendment.” But on Nov. 30, 2021, the full Ninth Circuit overruled Benitez and upheld the ban, ruling that limiting the size of magazines does not significantly interfere with the right to self defense.

Prop. 63 also requires Californians to get their ammo only from state-licensed vendors in face-to-face transactions. Out-of-state vendors hoping to get into the California cartridge* market are therefore required to go through a certified California vendor to broker the transaction. A lawsuit filed by the California Rifle & Pistol Association (NRA) and California-born Olympic skeet shooter Kim Rhode contends the new law puts an excessive burden on “interstate commerce” and that it violates the Second Amendment. In April 2020, the same federal district judge who slapped the state down in the Duncan case put a hold on the background check law writing that such checks “do not work,” that “every law-abiding responsible individual citizen has a constitutionally-protected right to keep and bear firearms and ammunition” and that Prop. 63 is “precisely what the Bill of Rights was intended to protect us from – a majority trampling upon important individual rights.” The state appealed the ruling to the Ninth Circuit U.S. Court of Appeals. In March 2021, three judges from the court put the proceedings on hold to wait for a ruling in the Duncan case.

Since 2001, California has only allowed handguns to be sold, imported, or manufactured in California if they are considered “not unsafe” by the state. The Department of Justice maintains a list of these approved firearms, known as the “roster.”* In 2009, gun rights activists sued, arguing that the roster impinges on gun owners’ Second Amendment rights and that the rationale the state uses to keep certain guns off the list is “arbitrary and capricious.” In recent years, as the state has placed more restrictions on new firearms, opponents of the roster have said it amounts to a “slow-motion handgun ban.” On June 15, 2020, the U.S. Supreme Court declined to take up the case.

In 2015, the U.S. State Department settled a case with the Texas nonprofit Defense Distributed, allowing it to publish its 3D-printable gun designs online. California joined a multi-state lawsuit filed by the State of Washington against the federal government. The states argue that allowing the release of those codes violated their right to regulate firearms within their own borders. In November 2019, a federal judge sided with the states. But this being the Internet, the files are out there.

The U.S. Supreme Court in early 2019 agreed to hear a constitutional challenge to a New York City law that did not allow most handgun* owners to take their firearm outside their homes unless they’re going to an authorized shooting range and barred them from taking their guns outside the city entirely. California has a lot at stake in the outcome. In 2010 the Supreme Court affirmed every American’s individual right to bear arms “in the home for the purpose of self-defense.” An expansive ruling on the case from New York, as some court watchers initially predicted, could find that the right to bear arms exists outside the home as well, potentially sweeping away California’s restrictions on both open and concealed carry in a single decision. “Winter may very well be coming for gun laws in California,” the head of the California Rifle and Pistol Association, Chuck Michel, told NRATV. “We may be able to knock more than a few of those out.” But New York City has since repealed the rule and in April 2020, the Court dismissed the case as moot.

Pro-gun rights advocates, two 20-year-old gun enthusiasts and a handful of gun shops sued the State of California in July 2019, arguing that a new state law setting the legal gun-purchasing age at 21 unjustifiably “prohibits an entire class of adults from exercising their Second Amendment right to keep and bear arms.” The law in question was authored by Sen. Anthony Portantino, a Democrat from La Cañada Flintridge, and signed by Gov. Jerry Brown in late 2018. It extended the age limit from handguns to all firearms, but some exceptions remain for young police officers, members of the military and anyone with a valid hunting license. 

Building off an early victory in Duncan v Becerra, when a district court judge held that the state’s ban on large capacity magazines violates that Second Amendment, gun rights groups from San Diego doubled down, challenging California’s entire “assault weapon” ban on the same grounds. The 19-year-old ban defines an assault weapon as any semiautomatic rifle with some combination of suspect features, including a detachable magazine. Because the court already froze the state’s large magazine ban, the San Diego County Gun Owners Political Action Committee argues, any law that forbids the purchase of a weapon based on its use of such a magazine must also be unconstitutional. 

On June 4, 2021, Roger Benitez, the same federal district judge who struck down the state’s ban on large magazines, sided with the San Diego gun owners. In a lengthy and scalding opinion, he called California’s assault weapons ban a “30-year-old failed experiment” and ruled that the Second Amendment only allows firearms to be banned outright in “extreme cases,” such as “bazookas, howitzers, or machineguns.”

Attorney General Rob Bonta appealed, and on June 21, 2021, a federal appeals court blocked Benitez’s ruling.