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Justices Uphold State’s Assault Weapons Ban

TIMES LEGAL AFFAIRS WRITER

The California Supreme Court on Thursday upheld the state’s 1989 assault weapons ban, the first such prohibition of semiautomatic assault weapons in the nation.

The ruling, which overturned a lower court decision, will reduce the number of assault weapons allowed in California and make it easier for the attorney general to restrict newer varieties of the guns.

The strongest weapons ban in the nation, the law bars about 75 models of firearms and allows judges to add new ones to the list as makers design modifications. A Court of Appeal in Sacramento decided two years ago that the add-on provision violated separation of powers between the Legislature and the judiciary.

But none of the state’s seven high court justices agreed. “For good or ill,” wrote Justice Janice Rogers Brown for the court, “the Legislature stood up and was counted on this issue, one of the most contentious in modern society.”

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State lawmakers approved the ban six months after a gunman with an AK-47 sprayed bullets into a Stockton school playground, killing five children and wounding 29 others and a teacher. Several other states followed California’s lead, using the state’s law as a model for weapons bans.

Because the lower court had struck down key provisions of the law, the Legislature last year passed new restrictions aimed at prohibiting weapons according to their characteristics, rather than by name and model.

With Thursday’s court ruling, a wide ban of assault weapons is now in place. Courts will be able to add new weapons to the banned list at the behest of the attorney general.

“This gives the attorney general the authority to just keep creating an ever-expanding list of firearms . . . that he deems to be illegal assault weapons,” complained Chuck Michel, a lawyer for a group of gun collectors and a gun manufacturer who challenged the law.

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The ruling was the first of a handful of gun cases the high court has agreed to review, and supporters of gun control hailed it as a major victory.

Atty. Gen. Bill Lockyer said that at least 120 types of weapons, known as AR-15 or AK series weapons, will be added to the banned list as a result of Thursday’s ruling.

The court decision “represents a major victory for gun safety and public safety in California,” Lockyer said.

If the court had ruled against the law, “it would have opened a huge gun trafficking loophole,” said Luis Tolley, western director of Handgun Control, the largest gun control group in the country.

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“The tragedy is that, for 10 years, illegal copycat assault weapons, like the TEC-DC-9 and the Colt Sporter, flooded California streets because the gun lobby’s phony legal arguments prevented this law from being enforced,” Tolley said.

The California Supreme Court examined three constitutional challenges to the gun law: whether it violated equal protection guarantees because it banned some weapons and left similar guns untouched; whether it improperly delegated legislative authority to the courts; and whether it violated due process rights because it was vague about which guns were banned.

The court rejected each of those challenges in an opinion written by Brown and signed by Chief Justice Ronald M. George and Justices Marvin Baxter, Kathryn Mickle Werdegar and Ming W. Chin.

Justice Stanley Mosk supported the court’s conclusions but wrote a separate opinion because he disagreed with some of Brown’s legal analysis. Werdegar also joined Mosk’s opinion.

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Justice Joyce Kennard filed the only dissent--solely on the equal protection challenge. She said the plaintiffs should be given the opportunity to prove their claims that the law banned some weapons while leaving nearly identical guns unregulated.

“Californians who are divided on the need for strict gun control are generally united in supporting the constitutional principle of equal protection--that the government should treat similar cases alike, free of arbitrary or invidious distinctions,” Kennard wrote.

In her opinion for the court majority, Brown strongly rejected any suggestion that the state Constitution protects the rights of Californians to own weapons.

“No mention is made [in the state Constitution] of a right to bear arms,” Brown wrote.

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The court majority also rejected the challenge that the law was invalid because it failed to ban all similar weapons.

“Doubtless, 10 years after Roberti-Roos Assault Weapons Control Act became law in California, many semiautomatic weapons potentially classifiable as assault weapons remain on the market here,” Brown wrote.

“That may or may not be regrettable, depending upon one’s view of this highly charged public policy question,” Brown added, “but it does not amount to a constitutionally fatal flaw.”

The court defended the law’s provision that allows the attorney general to ask Superior Courts to add new weapons to the outlawed list. The role of courts in this is “a very narrow, essentially adjudicatory one,” Brown said.

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Gun owners, however, found some comfort in the court’s comments on the due process challenge. Although the court rejected arguments that the law was too vague, the majority also indicated that the state has responsibility for ensuring that owners know which guns are banned.

If a Superior Court decides a certain weapon is an assault weapon, then the attorney general must within 90 days add it to the banned list, the court said.

“Concerned citizens need not struggle with the question whether, for example, a particular firearm is identical to one of the listed assault weapons except for slight modifications,” Brown wrote. “The citizens may simply consult the amended list.”

Michel, the lawyer for the gun owners, said dozens of Californians have become “accidental felons” because they possessed guns they did not know were banned.

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“If there is any silver lining in this decision, it is that the confusion about what is and what is not an assault weapon is now thrown squarely into the attorney general’s lap,” Michel said.

He said gun supporters will eventually file another lawsuit to challenge the law on other grounds. They also are considering appealing Thursday’s decision to the U.S. Supreme Court, he said.

“We’re not giving up,” Michel said.


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