EXAMINER.COM2 Hours Ago

California court ruling undermines victory declaration on 'assault weapons' veto

by David Codrea

The State of California's ban on the possession of an "AK series" semi-automatic rifle by a private citizen does not run afoul of the Second Amendment to the United States Constitution, a Court of Appeal, Fourth Appellate District Division One panel ruled Monday, affirming the San Diego Superior Court conviction of William Zondorak for violating California's Assault Weapons Control Act (AWCA).

The "reasoning" of the court, if it can be considered such instead of naked judicial political activism, relied on such head-scratching head nods to the Miller and Heller decisions as "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."

If allowed to stand, it illustrates once again how a piecemeal approach can be used to erode gun ownership, and stand it may unless outside help is forthcoming in the case. Gun Rights Examiner spoke yesterday morning with Zondoraks's attorney, and while he indicated it would be important to elevate this case through appeal to the California Supreme Court, the minimal nature of the penalty (Zondarak was sentenced to two days time served) and the expense of litigation make his client's continuation with the case prohibitive to finance on his own. (A few hours later, this correspondent introduced some principals and arranged for preliminary discussions with a national organization to advance the case, but it would be premature to release any details at this time.)

If this case stands, the AWCA will continue in force unscathed, locking in a part of what a more ambitious total ban on all semi-automatic rifles which do not have fixed magazines set out to do. That ban, SB-374, was vetoed last week by California Governor Jerry Brown, and why he rejected it merits examination. He's been a mixed bag for gun owners over the years, at one time campaigning to ban .50 caliber rifles, and years later, filing an amicus briefpetitioning the Supreme Court to hear the case on the Chicago gun ban.

This time out Brown vetoed, along with the semi-auto ban, a ban on private transfer of handguns not on the state's approved "Roster of Handguns Certified for Sale," an end run around preemption on handgun licensing and registration by the City of Oakland, mandatory reporting of lost firearms within seven days, an attempt to eliminate gun shows at the Cow Palace, an expansion of the definition of shotgun, and an expansion of the definition of "prohibited persons."

"Victory in California!" the Firearms Policy Coalition exclaimed as a result. The grassroots group, which includes member organizations in several states besides California, "delivered to the governor's officeabout 67,000 signed letters imploring him to veto the 14 prospective laws."

Not all focused only on half of the equation, which in fairness, FPC also acknowledged, albeit almost as an afterthought in their report.

"Why is it everyone jumps up and down when he vetoes seven bills," a commentator on the FPC announcement pointed out. "What about the seven he signed that are blatantly unconstitutional? He's still a stinking traitor to his Oath."

That may have been indelicately put, but the poster has a point. Among the bills Brown signed into law were a ban on "high capacity" (10 round or more) magazine rebuild kits; redefining "person" for "assault weapon" permits to preclude corporations from buying them; criminal liability for gun owners if unauthorized children or prohibited persons access firearms in their homes; extended background check periods and secure storage requirements for those living with prohibited persons; a lead ammo ban -- and this is huge -- for all hunting in California; a requirement for a firearms "safety certificate" to now include long guns (again huge), and criminalizing storing a handgun where the owner "should have known" a prohibited person would access it.

Exuberance and congratulations over dodging a significant bullet that volunteers and activists worked hard to avoid is understandable, but "victory" is a bit of a stretch that has caused more than one reader to contact Gun Rights Examiner. Victory is when your enemy capitulates and you dictate the terms of surrender, and some of the reactions received by this correspondent, using words like "Pyrrhic," and asking questions like "How many more of these can we afford to win?" along with snark like "Woohoo! V-C Day!" indicate activist gun owners know the difference and, as adults who can handle the truth, would prefer -- and importantly, support -- a more measured and realistic assessment, particularly when the hyperbole precedes a donation request.

While Gov. Brown may very well have been swayed by tens of thousands of letters (although he handily beat anti-gun Republican Meg Whitman in the 2010 election with over a million votes), and while his explanation that "I don't believe that this bill's blanket ban on semi-automatic rifles would reduce criminal activity or enhance public safety enough to warrant this infringement on gun owners' rights" may be sincere, that doesn't mean he won't be receptive to future, less ambitious erosion. And there's another significant factor that we addressed at the start of this report, one that may have had a significant impact of its own: The Zondorak case.

The appellants, after all, were State Attorney General Kamala D. Harris and Assistant Attorney General Julie L. Garland. As a former A.G. himself, Brown did not yet know how the Court of Appeal would rule on a less restrictive law than the one he had on his desk for signature (although in fairness, he could have probably made a good educated guess). He did not know -- none of us do yet -- if support will be forthcoming for an appeal. That said, as an experienced lawyer he would also have a sense for vulnerabilities in the bill he vetoed that would lend themselves to challenge, particularly when criteria like "in common use at the time" and "dangerous and unusual" are used as legal justifications to deny the obvious truth that such weapons do, indeed, have more than a "reasonable relationship to the preservation or efficiency of a well regulated militia."

One thing is certain: The gungrabbers will look carefully at what worked and what didn't, and will be back again to try for more. Bill co-author and Senate President pro Tempore Darrell Steinberg certainly sounded committed when he said after the veto "I believe aggressive action is precisely what's needed to reduce the carnage in our communities, and to counter the equally aggressive action by the gun industry which is intent on exploiting loopholes in our existing ban on assault weapons."

Until such time as this is settled and secure -- and remember, all the United States Supreme Court has to do to allow bad law to stand is nothing (that is, decline to hear a case) -- it's premature to claim victory.

Those who did helped win a stay. That is significant. We should be happy about that and supportive of grassroots efforts. But now it's time to go once more into the breach, and those happy few who would follow deserve knowing the real score from those who would lead them.

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The antis are coming at us from all angles. There's too much for one person to even keep up with, let alone effectively respond to. The latest GUNS Magazine "Rights Watch" column is online, and you can read it before the magazine hits the stands. Click here to read "They've Got Us Surrounded!"

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California court ruling undermines victory declaration on 'assault weapons' veto
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John Hames