Assault on the Constitution: Why the Southern District of California Got it Right

JurisdictionUnited States,Federal,California
Publication year2019
CitationVol. 36 No. 6

Assault on the Constitution: Why the Southern District of California Got it Right

Robert F. Brawner II

Georgia State University College of Law,

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Robert F. Brawner II*


In 1992, city-wide riots and looting consumed the streets of Los Angeles, California.1 During this six-day period of violence, at least 2,200 Korean-owned businesses were harmed, causing millions of dollars in damages; more than sixty people would die, and the police were nowhere to be found.2 While the city burned, Korean-American

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store owners took their safety into their own hands, wielding a variety of firearms to protect themselves and their businesses—many of these weapons would be banned two years later by the federal government in the name of public safety.3

In 1994, the 103rd Congress enacted what is commonly referred to as the federal Assault Weapons Ban of 1994.4 Among other things, the law made illegal the "manufacture, transfer, and possession of certain semiautomatic assault weapons" in addition to "large capacity ammunition feeding devices."5 Such a ban, proponents argued, was necessary to address the problems of everyday gun violence across the country.6 Opponents, however, were quick to point out that according to FBI statistics, "rifles of any description are used in only 3.1 percent of homicides, while knives are used in 14.5 percent of homicides . . . [and that is] all rifles, not just rifles banned in this

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bill."7 Ten years later in 2004, Congress repealed the law as a result of a Sunset Provision.8

Since the expiration of the 1994 ban, the Supreme Court dramatically altered the landscape of Second Amendment jurisprudence with its decisions in District of Columbia v. Heller and McDonald v. City of Chicago.9 In the wake of these cases, the question of whether or not a federal assault weapons ban could pass constitutional muster has been the subject of countless pages.10 Today, at least one bill has been introduced that would reenact an "updated" nationwide ban on assault weapons.11 Unlike the bill introduced in 1994, the primary motivation voiced by proponents seems to be addressing the problem of mass shootings.12 The new bill

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includes a broader definition of assault weapon and dramatically increases the amount of enumerated firearms that would be banned.13

Most federal courts of appeals that have heard cases challenging state provisions similar to the proposed federal law have upheld bans under the courts' interpretations of Heller. However, there are several factors that suggest the Supreme Court would not follow suit were it to hear such a case. Accordingly, this Note will address the question of whether or not the federal Assault Weapons Ban of 2019, if passed, would be upheld by the current Supreme Court.14 In so doing, this Note will examine and analyze the tests applied by federal courts that have heard similar cases, culminating with the recent decision in the Southern District of California, Duncan v. Becerra.15 In Part I, this Note provides the context surrounding the current bill being considered by Congress and examines Supreme Court and federal circuit court cases addressing this issue. Part II provides analysis of application of the tests applied by the federal courts. Part III argues that the Supreme Court should adopt Judge Benitez's reasoning laid out in Duncan and apply his test to any Second Amendment challenge to an assault weapons ban.

I. Background

According to data compiled by Mother Jones, 118 mass shootings have taken place in the United States since 1982.16 Like the terms assault weapon and "large capacity magazine" (LCM), however, there is no single definition of what constitutes a mass shooting.17

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Depending on how the term is defined, there have been anywhere from 8 to 375 mass shootings in the United States so far in 2019.18 Speaking from the Senate floor, Senator Feinstein declared her intent in introducing the Assault Weapons Ban of 2019: to prevent future mass shootings.19 In the same speech, Senator Feinstein declared that this ban would be constitutional, based on the fact that "[t]o date, every court that has considered a ban on assault weapons or [LCMs] has upheld the law."20 While the 1994 ban was challenged on several grounds, it does not appear to have been challenged on Second Amendment grounds.21 As such, there is only guidance from lower courts as to how such a ban would fare in the Heller era.22

A. The Right to Bear Arms: Heller Lays the Groundwork

The Supreme Court's landmark decision in District of Columbia v. Heller marked a new era of Second Amendment jurisprudence.23 Justice Scalia, writing for the majority, declared in Heller that the

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Second Amendment protects an individual's right to "possess and carry weapons" for self-defense.24 Beginning with a textual analysis of the Amendment itself, Justice Scalia held that the right codified was one "of the people"25 and that it extended "prima facie" to modern weapons.26

However, relying on the Court's opinion in United States v. Miller, Justice Scalia restricted the protection of the Second Amendment to those weapons "in common use at the time."27 In reaching the merits particular to Heller, the Court declared that the District's "handgun ban amounts to a prohibition of an entire class of 'arms' that is overwhelmingly chosen by American[s]" for the lawful purpose of self-defense, an inherent right central to the Second Amendment.28 The Court, however, failed to announce the appropriate level of scrutiny, if any, or any other standard under which to examine a law's ability to pass "constitutional muster" when challenged on Second Amendment grounds.29

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B. The Lower Courts Create a Test

In Heller's immediate aftermath, lower courts struggled to apply its holdings.30 In 2010, both the Seventh and Third Circuits heard challenges under Heller.31 In writing for the Seventh Circuit, Judge Easterbrook declined to adopt a formal test from Heller, instead reading the opinion narrowly for the proposition that handguns cannot be banned within the home.32 The Third Circuit, however, took the opposite approach and set out to find Heller's hidden test in United States v. Marzzarella.33

In the Marzzarella court's opinion, Heller "suggests a two-pronged approach."34 "First, we ask [if] the challenged law imposes a burden on conduct falling within the scope of the Second Amendment[] . . . ."35 Then, the second prong is to apply the "appropriate [level] of constitutional scrutiny."36 In interpreting

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Heller, the court decided that "the Second Amendment can trigger more than one particular standard of scrutiny" and that the law should not be held to "a less stringent standard than the one that would have applied to the [District's ban]."37

The levels of constitutional scrutiny referred to by the Marzzarella court are products of First Amendment doctrine.38 The two relevant levels here are strict and intermediate scrutiny.39 Strict scrutiny requires "a compelling governmental interest, narrow tailoring between that interest and a given law, and that a law must be the least restrictive means possible to achieve the goals of the specified interest."40 Intermediate scrutiny, "more lenient" than strict scrutiny, merely requires that the law in question be "narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication of the information."41

After Marzzarella, courts across the country began applying this two-prong test to Second Amendment cases.42 Of special note is what became known as Heller II, heard by the Court of Appeals for the District of Columbia, in which current Supreme Court Justice Brett Kavanaugh was the sole dissenter.43 In Heller II, the D.C. Circuit decided a challenge to D.C.'s own version of an assault weapons ban.44 In deciding the case, the court used the two-prong test to analyze the statute at issue.45 Applying that test, the court held that while the ban does "impinge upon a Second Amendment right, [it] warrant[s] intermediate rather than strict scrutiny."46 Under this framework, the court upheld D.C.'s assault weapons ban.47

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Importantly, the court mentioned Heller's suggestion that "'M[]16 rifles and the like' may be banned because they are 'dangerous and unusual.'"48 The court proceeded to compare the AR-15 with the M16, although it did not decide whether the AR-15 is dangerous and unusual in the sense relevant to Heller.49 This comparison of semiautomatic firearms to "weapons of war," found in testimony from the Brady Center, a gun control organization, plays a large role in courts upholding such bans.50

Eleven years after Heller, the Southern District of California broke from the chain of courts that upheld bans on assault weapons and LCMs under Heller's two-prong test.51 As opposed to most other courts hearing the issue, Judge Benitez declared that the LCM ban at issue would fail "under any level of scrutiny."52 The court did not

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leave the issue there but instead progressed through the levels of scrutiny and explained why each would fail.53 The court rejected the State's argument that Kolbe v. Hogan should guide the court's decision.54 In the course of the opinion, the court referred to a dissent from a denial of certiorari filed by Justice Thomas.55 This dissenting opinion helps to support the court's reading of Heller to require a "simple test."56 This test boils down to whether or not a firearm or magazine is "commonly used" and is "not unusual."57

While most courts seem to, at the very least, assume that a law infringes on the Second Amendment right, the crux of the opinions often lie in deciding and applying the correct level of scrutiny.58 However, it would seem under both Judge Benitez's and now-Justice Kavanaugh's reading of Heller ...

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