While Democrats push a new round of gun control bills, California gun rights advocates are fighting back in a more hospitable venue: the federal judiciary.
Brian Jones may be a California state senator, but as a Republican with an expansive view of the Second Amendment, he’s all but given up hope of holding back the wave of gun-control bills advancing in the Democratic-dominated Legislature.
Instead, like many like-minded advocates, he’s taking the fight to a more hospitable venue: the federal courts where, at last count, President Donald Trump has appointed about 17% of judges, including two on the U.S. Supreme Court.
“The courts — unfortunately, in California, that’s what we’re left with,” said Jones, who represents inland San Diego County.
Meanwhile his Democratic colleagues in Sacramento — spurred by yet another round of mass shootings — are pushing nearly two dozen bills to expand and fortify the state’s already toughest-in-the-nation firearm laws. With little more than three weeks to go before the end of the 2019 legislative session, talks are underway with the legislative leaders and Democratic Gov. Gavin Newsom’s office about a possible package.
For gun control advocates, 2019 has been a golden opportunity.
“We knew that we were going to have this bright and ambitious new governor that was willing to be bold,” said Jesse Gabriel, a freshman Democratic assemblyman from Encino. “We had these new legislative supermajorities. And we had a lot of public support.”
Differences are still being ironed out, said Gabriel, but “everyone is largely on the same page here.”
Well, not everyone. But many of those who disagree have been focusing their efforts elsewhere.
Since the beginning of the year, Second Amendment defenders have won a significant legal victory in the state’s southern federal district, temporarily striking down the state’s ban on high capacity magazines. Other plaintiffs have filed two new lawsuits seeking to topple a few pillars of the state’s formidable superstructure of gun control laws.
One of the new cases, which takes aim at the state’s “assault weapon” ban, was brought by the San Diego Gun Owners Political Action Committee, which has Jones as an advisory board member. The other, challenging California’s age requirement of 21 for gun purchasers, was brought in part by Matthew Jones, the senator’s just-shy-of-21-years-old son.
These countervailing political efforts—one pushing for tighter gun control within the Capitol, the other trying to undo those laws from the outside—speak to the limited power of gun rights groups in California’s Legislature. But they also exemplify the growing ideological rift between the mostly liberal lawmakers charged with writing the state’s laws and the increasingly conservative bloc of judges who interpret them.
A survey by the Public Policy Institute of California last fall found that 64% of Californians (including a third of Republicans) favor stricter gun laws. That two-thirds majority has plenty of reason to be optimistic at the moment.
Given the public’s “appetite for action on gun safety,” said Ari Freilich, legislative affairs director for the Giffords Law Center To Prevent Gun Violence, which has sponsored five of the bills, “that suggests that this will be a good year for California.”
Assembly Speaker Anthony Rendon seems to agree. Speaking at a Public Policy Institute event last week, he said that he, Senate President Pro Tem Toni Atkins and Gov. Gavin Newsom were discussing plans to push forward “a package of bills.”
The most recent mass shootings in Gilroy, California; El Paso, Texas and Dayton, Ohio infused fresh urgency into the effort. But the bills have been in the works for months, said Buffy Wicks, a freshman Democratic assemblywoman from Berkeley and one of the chamber’s most vocal members urging more stringent gun restrictions.
“It just hits home more when we see these things happen in our communities,” she said. But “there’s no shortage of inspiration.”
The shooting death of 13 people at Borderline Bar in Thousand Oaks last year, for example, was on lawmakers’ minds at the beginning of the session. News that the shooter had been visited by the police prior to the massacre offered another argument in support of five proposals that would strengthen or expand the state’s “red flag” laws, which allow law enforcement officers to temporarily remove firearms from someone deemed to be a threat to public safety or to themselves.
Those proposals received a new political boost this week when a report from researchers at UC Davis found that the state’s gun violence restraining orders, first introduced in 2014, have been used at least 21 times between 2016 and 2018 to avert potential mass shootings.
Likewise, the recent murder of a California Highway Patrol officer in Riverside County by a man with a semi-automatic “ghost gun”—a home-assembled firearm milled together with purchased components that lacks a state serial number. That may have strengthened the case for a bill that would require pre-assembled gun parts to be sold only by licensed gun dealers.
And responding to reports that the shooter at the Gilroy Garlic Festival legally purchased his California-banned rifle in Nevada, 27 state legislators sent an open letter to the Speaker of the Nevada Assembly, inviting that state’s lawmakers to an interstate gun policy summit.
Marc Levine, a Democratic assemblyman from Marin County, is hoping the public’s renewed attention will revive what might be the heaviest political lift of the remaining firearm-related bills.
In May, his proposal to slap a $25 dollar excise tax on firearm sales to fund the state’s flagship gun violence prevention program was left for dead in committee. Now Levine has rallied big city mayors from around the Bay Area to ask legislative leaders to give the proposal a second chance.
“Gilroy happened and I’m like ‘Come on, we’ve got something that we can do — we can show people that we are acting on their behalf,’” he said.
But that proposal will test the limits of the gun control bloc’s political power in the Capitol. Just reviving the bill will require a two-thirds vote of lawmakers to suspend each chamber’s procedural rules. And even in a legislature so thoroughly dominated by Democrats, passing tougher gun laws is one thing. Raising taxes is another.
“I understand the politics of guns and taxes,” said Levine. “I think there was reticence to engage in that this year. That is flawed thinking. It’s an old way of thinking. We need to act now.”
Gun advocates are bracing for the worst. “This is when they start doing all their crazy magic and start bringing the dead back to life,” said Roy Griffith, a lobbyist for the California Rifle & Pistol Association, the state affiliate of the National Rifle Association.
No matter the strength of the pro-gun control vote, proponents advocates may have longer-term concerns as legal challenges to the state’s gun laws make their way through the court system—and perhaps eventually up to U.S. Supreme Court.
In March, a federal district judge in southern California put a hold on the state’s ban on magazines that can hold ten or more rounds of ammunition. The ruling by Judge Roger Benitez offered about as expansive a reading of the Second Amendment as one could find outside an online gun rights forum. If allowed to stand, the ban, passed by voters as part of Proposition 63 in 2016, would effectively render the Second Amendment of the U.S. Constitution “meaningless,” Benitez, a George W. Bush appointee, wrote.
Though that ruling has been appealed, it has provided more legal ammunition for gun rights groups. Last week the San Diego Gun Owners Political Action Committee asked the courts to apply the same logic to strike down California’s assault weapon ban, which has been on the books in its current form for 19 years.
California law defines an assault weapon as any modern semi-automatic rifle that has a detachable magazine and at least one other suspect feature, such as a pistol grip. As a result, for many firearms, the presence of an easily removable magazine is the dividing line between legal and forbidden.
Because the Benitez ruling found that a detachable magazine is constitutionally protected, said John Dillon, the lead attorney for the plaintiffs, “there are now two lawfully owned items that the state has no problem with…but if (gun owners) use those two items together they magically become felons.”
Dillon also represents three San Diego young adults, including Sen. Jones’ son, who are challenging the state’s age restriction on gun purchases.
Dillon said that the recent political evolution of the 9th Circuit, the appeals court that interprets federal law for California and nine other western states, does not change the way he sees these cases. “I believe we have solid constitutional arguments regardless,” he said.
But recent appointments to the federal bench certainly won’t hurt his cause.
Since his inauguration, President Trump has placed seven judges on the 9th Circuit. That has pulled the court, composed of 28 active judges, further to the right — to the delight of conservatives (including Trump) who have long lambasted it as the federal judiciary’s most liberal outpost.
Trump’s seven appointees are “very conservative judges and they are replacing some very, very famously liberal judges,” said Ben Feuer, chairman of the California Appellate Law Group, a law firm that frequently works in the 9th Circuit.
And the court decides most cases by panels of three judges The influx of new conservative jurists has brought the circuit closer to parity between Democratic and Republican appointees— rendering the odds of a left- or right-leaning majority on any given case more comparable to a coin toss.
“With more conservative judges on the court, you’re more likely to get panels where you have a majority of judges who view the Second Amendment expansively,” said Feuer. For gun control advocates living “in more liberal states that have pretty significant restrictions on guns, there may be cause for concern.”
To learn more about California gun law, read our explainer: How California got tough on guns.