Metropolitan News-Enterprise


Monday, May 1, 2023


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Court of Appeal:

California’s Ban on Assault Weapons Is Constitutional

Third District Rejects Contention That Statute Must Fall in Light of U.S. Supreme Court Decision Last Year


By a MetNews Staff Writer


California’s statute barring possession of assault weapons does not violate the Second Amendment, the Third District Court of Appeal held on Friday, rejecting the contention of a man convicted under that statute that he is entitled to a reversal based on the U.S. Supreme Court’s decision last year upsetting New York City’s ban on carrying firearms in public.

Defendant Alex Andy Bocanegra—who, on Jan. 12, 2020, armed with three firearms including an AR-15 style rifle, fired shots into the home of a man—contested the constitutionality of Penal Code §30605, which he was found to have breached. It provides, in part:

“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.”

Supreme Court Decision

That statute, he contended, is invalid under the high court’s June 23, 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen. There, Justice Clarence Thomas wrote for the majority in saying that “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”

Yolo Superior Court Judge Samuel T. McAdam, sitting on assignment to the Court of Appeal, authored Friday’s opinion rejecting an application of Bruen. He differentiated the present fact situation by pointing out that Bocanegra was not law-abiding and an assault weapon is not a handgun.

He said the U.S. Supreme Court, in Bruen and in two prior decisions, “made clear the Second Amendment protects a law abiding citizen’s right to possess a handgun for self-defense, whether in the home or outside the home.” McAdam commented:  

“There is simply no interpretation of the facts here that suggests defendant possessed the AR-15 rifle for self-defense at the relevant times, a fact defendant’s appellate counsel conceded at oral argument.”

The jurist continued:

Bruen did not analyze whether a particular type of firearm is protected under the Second Amendment.  Rather, Bruen focused on whether New York’s statutory public-carry licensing scheme violated the Second Amendment right to carry handguns publicly for self-defense.”

2008 Opinion

McAdam said that Bruen did not erect a new test but merely “clarified the contours” of the court’s 2008 decision in District of Columbia v. Heller. Justice Antonin Scalia (now deceased) wrote for the majority in that case in saying:

“[W]e hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”

He noted that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Thomas added that the Second Amendment was designed to protect possession of the sorts of weapons that were “in common use at the time,” observing:

“We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ ”

Application of Heller

In Friday’s opinion, McAdams said:

“Like the Supreme Court in Bruen, here, we do no more than apply the test announced in Heller.  Doing so, we conclude the Second Amendment’s plain text does not cover defendant’s conduct.”

The Second Amendment says:

“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.”

In a portion of his opinion that was not certified for publication, McAdams declared that under a statute that went into effect on Jan. 1, 2022, Bocanegra is entitled to a resentencing.

The case is People v. Bocanegra, 2023 S.O.S. 1228.


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