SAF lawsuit challenges CA semi-auto ban

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Dave Workman

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The Second amendment Foundation has filed a federal lawsuit in the Northern District of California, challenging the state ban on "assult weapons" as "unconstitutionally vague."

Read the SAF press release here

The San Francisco Weekly wrote about it here

And I penned my screed here

There's a link in the Weekly story and in my column to the actual lawsuit document. That thing is really worth looking at!

The back story on this is that the individual plaintiff in this case has been arrested and jailed twice...and had charges dismissed both times...because the cops can't tell the difference between an "assault weapon" and a gun that isn't an "assault weapon." :banghead:
 
While the California laws are in fact quite draconian and hard to learn, they are also relatively specific, or have been made specific by prior case law.

The result is that all the facts are there to determine what is and is not legal in most circumstances, unlike for example some of the federal laws dealing with firearms that are vague enough that you need an agency to interpret them at their discretion.

This means a cop can in fact determine what is and is not an assault weapon by feature if they know the law.
There was some guns banned specifically by name in the Roberti-Roos list, most of which is no longer important within the state because the companies have similar products now under unbanned names. (Unless you are moving into the state with a firearm from out of state that could be on the list.)
These weapons are always 'assault weapons' no matter what features you add or remove.
Another class is those specifically added by name before they stopped doing that some years ago. These are likewise always illegal in any configuration if they weren't registered before the cutoff, and can never be transferred to or inherited by anyone in the state.

Finally there is the more commonly known and more broadly incorporating 'assault weapon' by feature category.
These have defining characteristics that in combination make a weapon legal or illegal, features which may be removed or added and change legality.
This is what most people are referring to, and what the cop in the cited case determined improperly. Rifles for example are prohibited if they have a detachable magazine in combination with one of a list of other features. A fixed magazine is defined as one that requires a tool to remove, so if it cannot be removed with bare hands then it requires a tool.
The result is people can have all the other features they want if they make it so the magazine needs something besides a finger to remove.
These are features that are otherwise rare in California, and so immediately draw attention when seen.

A firearm enthusiasts or citizen that does there homework can put together such legal firearms, but as seen in this case may still be arrested and charged, and more importantly to them still pay all the legal costs associated with hiring an attorney. This means they are essentially fined thousands of dollars for breaking no law, because that is the cost to defend themselves and prevail.


As a side note:
The legal system is self serving, the more people disagree, don't get along, and readily sue each other over minor things the greater the demand and job security and higher the income for attorneys, prosecutors, judges, etc
They don't want everyone to get along, or to readily understand the laws, the more experts that must be involved in everything the more they benefit. If two people sue each other in court, or fight it out, the attorneys typically walk away the winners on both sides. Divorces are one of the prime examples, couples often lose their homes and other assets in paying for the attorneys to argue over the details. So they may have been together and accumulated those assets over many years, and the attorneys walk away with most of them.
This also means that if police or others do not have to pay the legal fees of those wrongly accused, there is no disincentive for the accuser to not continue such conduct, and there is financial incentive for the courts to keep dealing with the cases individually and not reduce their own source of livelihood.
That is not to say lawsuits are bad, they can be used to help clarify rights as in this case, but that the courts themselves have no desire to give rulings that reduce how readily charges are filed or people are sued.




As for this specific situation, it certainly has the potential to turn out worse in California. We just had politicians ban unloaded open carry of holstered firearms which was only legal more than 1,000 feet from all schools after all.
They could simply propose new legislation to outlaw the bullet button, or redefine a tool to mean something more complex or time consuming, as a result of such legal challenges.
 
I hope this lawsuit completely corrects the California Department of Injustice. It is beyond high time the state be made to pay for it's persecution of gun owners.
 
I hope he is not, but many here in California are afraid that any challenge to established law will only make the politicians want to do more, being that the vast majority of gun control they push through seems to stick. The DOJ is of no help, and many of us see them as yet another agency overzealous in efforts to discourage gun ownership. I too hope the lawsuit prevails, but I also believe that there will be new legislation introduced right away that likely will be even more draconian. I cite the open carry situation as an example, and see the point. Maybe the best law would be one that completely bans, but does not outlaw ownership, the use of all guns outside the home, in hopes SCOTUS will save us, but that is a gamble many Californians won't take.
 
Am I correct in presuming that you are OK with the California statute as is?
I am quite familiar with CA gun laws, and I know how to stay out of jail in that state. It's not really confusing if you actually take a minute to read.
Yes, some of it is quite stupid, but not confusing. The reason people are being wrongly arrested is that some members of the law enforcement community are lazy.

I believe that's the point he was making.
 
As an avid Calgunner I am mixed about this approach. The best thing I can say about it is that it doesn't foreclose other arguments that can be made later.

With the exception of the flash hider vs muzzle brake law, I am not sure that it is ambiguous or vague. Ignorance and incompetence in law enforcement regarding the law doesn't prove anything other than ignorance and incompetence.

I'd rather see a straight ahead 2A challenge. It would go nowhere in district court, of course, but the arguments would be crafted for the appeal.

The strongest case, in my opinion, is that the semi-auto versions of military style weaponry are nearly ideal for the militia purpose announced in the first clause of the amendment. That fact, combined with the common use test established in Heller should, by all rights, make the AR15 with 30 round detachable magazines the most protected weapon in the land. Any weapons with similar performance characteristics should obviously be equally protected.
 
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