C.A. Rejects Second Amendment Challenge to Assault Weapons Ban

Tuesday, October 22, 2013

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C.A. Rejects Second Amendment Challenge to Assault Weapons Ban

By KENNETH OFGANG, Staff Writer

The Fourth District Court of Appeal yesterday upheld the constitutionality of California’s ban on assault weapons.

Div. One affirmed William Zondarak’s conviction for violation of the Assault Weapons Control Act. A San Diego Superior Court judge found him guilty and sentenced him to the two days in jail he had already served, after he stipulated that he “knowingly possessed an operable semi-automatic CN Romarm AK series rifle” and waived his right to jury trial.

The Court of Appeal, as well as the trial judge, rejected the defendant’s argument that the AWCA violates the Second Amendment, as interpreted in District of Columbia v. Heller (2008) 554 U.S. 570 and McDonald v. City of Chicago (2010) 130 S.Ct. 3020. The cases held that there is a fundamental, individual constitutional right to bear arms, including the possession of a handgun in the home.

Heller’s Admonition

Justice Alex McDonald, writing for the Court of Appeal, cited Heller’s admonition that the right to possess firearms is not unlimited and does not extend to every type of weapon. The high court, McDonald noted, expressly reiterated its holding in U.S. v. Miller (1939) 307 U.S. 174, in which it held the Second Amendment did not protect an individual’s right to transport an unregistered short-barreled shotgun in interstate commerce.

The justice elaborated:

“We construe Heller as standing for the proposition that the right secured by the Second Amendment is ‘not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose’…but is instead the right to possess and carry weapons typically possessed by law-abiding citizens for lawful purposes such as hunting or self-defense.”

Third District Case

He cited People v. James (2009) 174 Cal.App.4th 662, in which the Third District held that Heller did not invalidate either the assault weapons ban or the 2004 law banning possession of the .50 caliber BMG rifle. Since-retired Justice Richard Sims wrote in that case that the Supreme Court had not legalized 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 AWCA—or to kill 21 people at a fast-food restaurant in San Ysidro five years earlier.

McDonald wrote:

“We agree with James that the ban on AK series rifles does not impinge on rights protected by the Second Amendment because assault weapons ‘are at least as dangerous and unusual as the short-barreled shotgun’…which Miller concluded (with apparent approval from Heller) was outside the scope of the Second Amendment’s guarantee.”

There was thus no need to determine what level of constitutional scrutiny to apply to Zondarak’s claim, the justice said.

The court also rejected the argument that the AWCA violates the Second Amendment because it allows some weapons that are at least as dangerous as his rifle to be possessed, under at least some circumstances. This is an equal protection argument, which was not raised in the trial court and cannot be argued on appeal, McDonald said.

The case is People v. Zondarak, 13 S.O.S. 5405.