Metropolitan News-Enterprise


Wednesday, June 3, 2009


Page 3


Third District Court of Appeal Upholds State Ban on Assault Weapons

Panel Says High Court’s Second Amendment Ruling Inapplicable to ‘Unusually Dangerous’ Guns


By a MetNews Staff Writer


A recent U.S. Supreme Court ruling that interpreted the Second Amendment as permitting individual ownership of firearms does not invalidate California’s bans on possession of assault weapons or the .50 caliber BMG rifle, the Third District Court of Appeal ruled yesterday.

The high court’s ruling in District of Columbia v. Heller (2008) 1171 L.Ed.2d 657, protects the right of law-abiding citizens to own the types of weapons normally found in the home for protection, Justice Richard Sims wrote.

But it does not permit the ownership of “unusually dangerous weapons” like the ones used to kill five children on a Stockton playground in 1989—the immediate impetus for passage of the state Assault Weapons Control Act—or to kill 21 people at a fast-food restaurant in San Ysidro five years earlier, Sims wrote.

The ruling upholds the convictions of Michael Eugene James on multiple weapons charges, including possession of three assault weapons and a .50 caliber BMG rifle. The Legislature banned possession of the .50 BMG, which is capable of shooting down an airplane, in 2004.

James was arrested after the California Department of Justice investigated a discrepancy between a list of weapons he turned in to the Sacramento Police Department in response to a restraining order, and the Automated Firearms System database, which showed 10 additional registered firearms in his name.

Agents obtained a search warrant after James initially said he had no more weapons, then admitted possessing at least two, then turning over four, then allegedly finding another one after he refused to allow an agent to search the house.

The search revealed six additional weapons, including the BMG. James allegedly told the agent that he did not turn that one in because it was unregistered and he knew it was illegal to possess, and that he thought he had turned all of the other guns in.

 At trial, he offered a mistake-of-fact defense, but jurors found him guilty on all counts and he was sentenced to four years in custody.

On appeal, he argued that both the assault weapons law and the BMG law were unconstitutional under the principles laid out in Heller, but the court disagreed.

Sims pointed out in a footnote that Heller, which dealt with a D.C. law, did not address the issue of whether the Second Amendment is applicable to the states under the incorporation doctrine. But that issue need not be resolved, the justice said, because the California laws are constitutional even if the Second Amendment applies to the states.

While affirming the right to possess handguns in the home, Sims explained, Heller reaffirmed earlier decisions allowing the government to control dangerous weapons “not typically possessed by law-abiding citizens for lawful purposes.”

Sims noted that the Legislature banned assault weapons and the .50 caliber BMG because it “was specifically concerned with the unusual and dangerous nature of these weapons.” He noted that other courts have upheld similar bans since Heller, citing an Eighth U.S. Circuit Court of Appeals ruling and a federal district judge’s ruling from Tennessee saying the government still has the right to ban possession of machine guns.

The case is People v. James,  C057995.


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