Is California's Assault Weapon Ban (Penal Code section 30605) Unconstitutional Under Bruen?

We recently raised the issue that the ban on the Possession of an assault weapon under Penal Code section 30605 violates the Second Amendment right to bear arms. That section states “(a) Any person who, within this state, possesses any assault weapon, except as provided in this chapter, shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.”

Daniel Horowitz raised the issue at the trial court level and it was then appealed.  The case is:

PEOPLE v. BOCANEGRA (2023) Court of Appeal, Third District, California.

C095234 Decided: April 28, 2023

The Bocanegra Assault Weapon Decision (Discussed) 

The starting point for gun control arguments was stated by the Court of Appeal this way. 

The Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The “Second Amendment right is fully applicable to the States.” (McDonald v. City of Chicago, Ill. (2010) 561 U.S. 742, 750 (McDonald); see id. at p. 791 [“the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller”].)

The appellate lawyer our client used was Kaiya R. Pirolo of Walnut Creek. She wrote an excellent brief and the Court of Appeal summarized some of her arguments as follows:

Defendant relies extensively on Bruen in making his argument that section 30605 violates the Second Amendment. ... Bruen focused on whether New York's statutory public-carry licensing scheme violated the Second Amendment right to carry handguns publicly for self-defense. (Bruen, supra, ––– U.S. at pp. ––––, –––– [213 L.Ed.2d at pp. 401, 405].)

The Supreme Court in Bruen held: “when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation.

Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's ‘unqualified command.’ ” (Id. at p. –––– [213 L.Ed.2d at p. 405]; see id. at p. –––– [213 L.Ed.2d at p. 409].) Defendant asserts that, because “no such historical tradition of regulating assault weapons exists, [defendant's] conviction for violating section 30605 must be reversed.”

The Court ultimately found that Assault Rifles are not ordinarily possessed by law abiding citizens.

We agree with the decisions in Zondorak and James upholding the statutory predecessor to section 30605 on the ground that assault weapons like the AR-15 style rifle police found in defendant's car, are “weapons not typically possessed by law-abiding citizens for lawful purposes” (Heller, at p. 625), and “ ‘are at least as dangerous and unusual as the short-barreled shotgun’ ...

For this reason they found that: California's prohibition of possession of assault weapons, now at section 30605, does not violate the Second Amendment as construed by Heller. This is settled law.

We disagree with this holding but unfortunately the appeal did not go beyond this Court of Appeal to any higher courts. Kaiya R. Pirolo’s brief is available and we hope that our office or other criminal defense (2nd Amendment) attorneys will take this issue to the highest level.