December 15, 2023 By Paul Wallin

California’s Assault Weapon Ban


In late October, the U.S. Court of Appeals for the 9th Circuit ruled on California’s “assault weapon” ban (Section 30605 of the Penal Code). The law, prohibiting assault weapon possession, allowed prosecutors to charge suspects with a misdemeanor or felony, carrying up to 3 years of imprisonment. Despite a previous injunction, the 9th Circuit has stayed it, allowing the law to remain in effect during the appeal in the case of Miller v. Bonta.

Previously, U.S. District Judge Roger Benitez had declared the ban unconstitutional. However, the 9th Circuit vacated that decision in August 2022 and asked Benitez to reconsider in light of the Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen, where it was determined that New York violated the Second Amendment. The Supreme Court, in Bruen, rejected the commonly used “interest-balancing” tests for gun control laws and instead emphasized a historical test to evaluate regulations in line with the traditional understanding of the right to bear arms.

Benitez, applying this test to California’s ban, first considered whether the banned firearms are “in common use” for lawful purposes, as established by the Supreme Court. He argued that the banned semi-automatic rifles, like AR-15s, are indeed commonly owned by law-abiding citizens for purposes such as recreational shooting, hunting, competitive shooting, and home defense.

Examining California’s historical gun regulations, Benitez found that the state failed to identify any categorical bans on firearm possession between 1791 and 1868, the relevant time for assessing the Second Amendment’s scope. Even when the state provided a list of 316 laws covering 550 years, Benitez concluded that there was no national tradition as broad or far-reaching as California’s “assault weapon” statutes.

The state’s attempts to draw parallels to historical bans on certain weapons, such as trap guns or laws regulating gunpowder, were deemed insufficient. Even references to laws restricting gun ownership based on race or color were dismissed as irrelevant to defining the Second Amendment’s scope.

Benitez also criticized California’s argument that the ban aimed to prevent mass shootings, noting that the banned features on certain guns were arbitrary. He highlighted the Supreme Court’s rejection of the “alternatives-remain” argument, stating that allowing incremental bans until only a single-shot derringer is left is not justifiable.

In conclusion, Benitez questioned the logic of California’s law, emphasizing that the right to own commonly used firearms for lawful purposes should not be overshadowed by the state’s goal to prevent mass shootings. He argued that the policy choice disregards the value of lawful uses of firearms, including self-defense, and raises concerns about potential incremental bans. The decision by the 9th Circuit to stay the injunction means that California’s “assault weapon” ban will remain in effect for now.

As a result of this legal decision individuals convicted of certain offenses have the opportunity to nullify their convictions. Those facing firearm-related charges are advised to file motions for case dismissal based on this ruling. If you or someone you know is confronting criminal charges, especially related to firearms, contact our office for assistance. With over 40 years of legal advocacy, our firm is dedicated to staying current with legal developments, as demonstrated by our success in leveraging the recent Court of Appeals decision for the benefit of individuals facing gun charges. Our enduring legacy of legal expertise positions us as a trusted ally for those seeking informed defense in criminal accusations.

Contact Wallin & Klarich Today 

If you are facing gun possession charges, you need an aggressive defense attorney to fight for your freedom. With 40+ years of experience, our attorneys at Wallin & Klarich have helped thousands of clients win their cases or get their charges reduced to a lesser degree. We know the most effective defenses to argue on your behalf, and we will do everything in our power to help you achieve the best possible result in your case. 

You may not be aware of all your options. Calling our office costs you nothing, but picking up the phone could be the difference between years in prison and years of freedom. Let our skilled attorneys examine your case to find the best way to avoid prison.Discover how our team can assist you. Contact us today, toll-free at (877) 4-NO-JAIL or (877) 466-5245 for a free consultation with a skilled defense attorney.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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