Court Battles Over Assault Weapon Bans—And A New California Ruling

Restrictions on select kinds of semi-automatic firearms (often labeled assault weapons) are back in the news after the Supreme Court last week declined to halt Illinois’s new law. The request to the Court came on the justices’ so-called shadow docket, where the challengers were seeking emergency relief before the Seventh Circuit had even considered the case. Despite support from several gun-rights organizations as amici, including one group represented by veteran advocate Paul Clement, who successfully represented the challengers in Bruen, the Court denied relief over no noted dissents. While the denial itself is not surprising, given the posture of the case, the absence of noted dissents was somewhat unexpected. This post (a sort of follow-up to Andrew’s early post-Bruen highlight) attempts to lay out the state of play on litigation over assault weapons bans and when and where we can expect the most consequential rulings to come from. It then highlights some notable aspects of a recent California state appellate court ruling.

The litigation challenging Illinois’ law will now proceed to the Seventh Circuit. The panel has consolidated multiple challenges to the law, including trial court rulings striking down the law and upholding it. It has issued a stay to keep the law in effect during the pendency of the litigation and scheduled argument for June 29. The panel consists of Judges Easterbrook, Wood, and Brennan. It’s not entirely clear which way the panel will be inclined. Judge Easterbrook, a Reagan appointee, wrote an opinion upholding an assault weapons ban before Bruen using something like balancing. Judge Wood, a Clinton appointee, has previously voted to uphold gun laws against Second Amendment challenge, even dissenting from denial of rehearing en banc in the case striking down a public carry ban. Judge Brennan is a Trump appointee.  I do not see cases where he has expressed a Second Amendment opinion (he did vote to send one case back to the district court for reconsideration under Bruen, something not all conservative judges are keen on). The oral arguments next month will likely shed more light on the judges’ views.

Another case to watch is Bianchi v. Frosh, a challenge to Maryland’s assault weapons ban currently pending in the Fourth Circuit. The court heard oral arguments in December 2022 and has yet to issue an opinion, which means one could come any day. News reports from the argument suggest that the panel “appear[ed] poised to strike down Maryland’s ban on semiautomatic assault-style weapons as unconstitutional in light of a recent Supreme Court decision and based on the argument that the firearms are commonly used by law-abiding citizens for self-defense.” That panel includes Judges Niemeyer, Richardson, and Thacker. Judge Niemeyer, a Reagan appointee, previously voted to invalidate this same law before Bruen, while Judge Thacker, an Obama appointee, voted to uphold it; Judge Richardson, a Trump appointee, wrote an expansive decision striking down age restrictions on Second Amendment grounds before Bruen.

The Third Circuit also has an assault weapons case before it. In that case, Delaware State Sportsmen’s Association v. DDSHS, the district court upheld the law. The appeal was docketed in April, but I do not see a panel yet assigned.

There are also ongoing challenges to other assault weapon laws that have yet to reach decision—many thanks to Andrew for collecting these: California (Miller v. Bonta), which is awaiting decision from a notoriously pro-gun judge, Connecticut (NAGR v. Lamont), Massachusetts (Capen v. Healey), New Jersey (Cheeseman v. Platkin), which is before the judge who just issued a more than 250-page opinion invalidating many parts of NJ’s sensitive-place law, Washington (Hartford v. Ferguson), and municipal bans in Colorado, a state that does not preempt local gun regulation (Rocky Mountain Gun Owners v. Superior).

In California, a few weeks ago a state appellate court upheld the state’s assault weapons ban against Second Amendment challenge. In People v. Bocanegra, the defendant challenged the constitutionality of the state’s ban after he was convicted of unlawfully possessing an AR-15 (as well as other charges he did not appeal). The court considered prior state appellate decisions upholding the ban still good law, because they were predicated on the notion that assault weapons are dangerous and unusual, not on the kind of means-end scrutiny the Bruen court rejected. Applying Bruen’s new method, the court “again conclude[d] the Second Amendment’s plain text does not cover defendant’s conduct.” It said that AR-15s and the other assault weapons banned under the law are like M16 rifles that Heller said may be banned because they are dangerous and unusual weapons. One interesting aspect of the analysis here will likely be a battleground on which future battles over weapons restrictions are fought.

California was the first state to ban assault weapons, back in 1989. The Bocanegra panel noted that, when the statute was passed, the evidence “strongly suggests that there was no prevailing belief at the time that citizens commonly used assault weapons for the lawful purpose of self-defense.” In other words, the weapons were not in common use when they were first banned in 1989. “And,” the court continued, “because California’s statute prohibiting the possession of assault weapons has been upheld and operative in the interim, by definition, and with exemptions that need not be discussed here, these weapons are not presently possessed by law-abiding citizens in California for lawful purposes.” Critics of the common use test (myself among them) might not like this implication. Judge Easterbrook, for example, once quipped that “it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning that it, so that it isn’t commonly owned.” But, despite those misgivings, that seems to be where Heller leaves us on the test for weapon protection.

The California court acknowledged that assault weapons are indeed common in other jurisdictions, but it found that fact irrelevant to whether California can ban the guns. It also dismissed the notion that California can be characterized an as outlier “given California’s outsized population, economy, cultural influence, and, most importantly, its 30-year history and tradition of assault weapon regulation.  Moreover, since the passage of the AWCA in 1989, several states have followed California’s lead and passed laws banning assault weapons in at least some form, most recently in 2023.” Rather than an outdated relic, it said, the state is at the vanguard of regulatory intervention.

I do not know what the Supreme Court will ultimately do when it confronts an assault weapons ban, but in addition to the conceptual difficulties with its common use test, it will have to grapple with conclusions of the sort that the panel made here. Does it make sense to look at national trends for gun buying or possession when assessing a single state’s law? If so, what theory justifies doing so? Is outlier status dependent on the size or influence of a state or is it purely a numbers game? As more of the cases recounted in this post reach decision, the Supreme Court will face increasing pressure to weigh in.