California’s ‘assault weapon’ ban challenged in federal court 
by Dave Workman
Gun rights activists across the country were saying “It’s about time,” after the Second Amendment Foundation (SAF) filed a lawsuit in California seeking to overturn that state’s ban on so-called “assault weapons” because the statute is “unconstitutionally vague and ambiguous.” Joining SAF in the lawsuit are the Calguns Foundation and a private citizen named Brendan John Richards, who has been arrested twice—and subsequently cleared of criminal charges—because police could not tell the difference between what is legal and illegal under the ban statute. It took the same state senior criminalist, John Yount, to explain both times, that firearms in Richards’ possession do not fall under the state’s definition of an assault weapon.
Named as defendants in the case are: California Attorney General Kamala Harris; the California Department of Justice; the Sonoma County Sheriff’s Office, and Deputy Greg Myers.
To understand how this could happen, one need only read the allegations in the lawsuit papers filed in US District Court for the Northern District of California. According to the document, obtained by TheGunMag.com, the California Department of Justice has “engaged in a pattern of disinformation and confusion on the issue of whether a rifle fitted with a device that makes it incapable of accepting a detachable magazine is legal to own in California.” “It could be argued that California Department of Justice’s firearms division has created such a state of confusion that the entire statutory and regulatory scheme for defining California Assault Weapons is hopelessly, and unconstitutionally vague and ambiguous,” the lawsuit says.
But there is more. The lawsuit asserts that “The Department of Justice made changes to the various versions of this memorandum due to Jason Davis, then an attorney for the National Rifle Association, pointing out legal flaws in the various iterations.
Further, it is alleged that “In all versions of the memorandum, the Department of Justice directly conflicted the previously published Assault Weapons Information Guide by stating that owners of a firearm with such features had to permanently alter the firearm so that it cannot accept a detachable magazine.” However, permanent alteration is not required under California Penal Code, the lawsuit asserts.
Richards, an honorably-discharged Marine and Iraq war veteran, was arrested and jailed in May 2010 and August 2011 for possessing what officers believed were banned “assault weapons.” On both occasions, Richards had to post bail fees, which are nonrefundable, and he also missed work and had his firearms seized. Only after Yount explained, both times, that the firearms in Richards’ possession did not fall within the guidelines of the state’s assault weapon definition were charges dismissed against him.
“This nonsense has to stop,” said SAF founder and Executive Vice President Alan M. Gottlieb, “and the only way to insure that is to show California’s assault weapon statutes and regulations are unconstitutionally vague and ambiguous. Brendan Richards is not the only citizen faced with this kind of harassment under color of law.” Gottlieb said being wrongly arrested once for violating a law that he didn’t actually break should be considered an insult to Richards, but getting arrested a second time for the same offense is an outrage.
“Brendan Richards’ dilemma is a textbook example of why the California statute should be nullified,” Gottlieb observed.
As it turns out, the Calguns Foundation has a serious interest in this case.
In the past, the foundation has paid for Richards’ legal defense, and the organization is both furious and mystified at his plight. In filing papers, attorneys representing Richards, SAF and Calguns explain that the former Marine now is fearful that he could be arrested again for the same alleged offense.
Meanwhile, the California Department of Justice response claims it has no duty to issue a clarifying bulletin to the state’s district attorneys or its peace officers, the lawsuit alleges.
Reaction to the lawsuit in the gun rights community was swift and positive. Even the National Shooting Sports Foundation (NSSF) got involved, circulating background information on so-called “assault weapons,” and pointing to flaws in typical definitions.
According to the NSSF, “There is a tremendous amount of misinformation surrounding the issue of so-called assault weapons.” The organization assembled a fact sheet that refutes claims by gun prohibitionists.
For example, the so-called assault weapon that is the target of a renewed ban is not a machinegun or automatic firearm, NSSF stresses. It is a semiauto look-alike. NSSF quotes Josh Sugarmann of the Violence Policy Center, who once observed, “The public’s confusion over fully-automatic machine guns versus semi-automatic assault weapons—anything that looks like a machine gun is presumed to be a machine gun—can only increase the chance of public support for restrictions on these weapons.” NSSF also notes that these firearms are not “high-powered” guns at all, but are typically less powerful than typical centerfire hunting rifles.
They also observe that the ten-year ban on the sale of so-called assault weapons initiated by the Clinton administration could not be proven to have reduced crime. NSSF cites a study by the Centers for Disease Control that “looked at the full panoply of gun control measures, including the ‘assault weapons ban’ and concluded that none could be proven to reduce crime.” Even after the ban expired, NSSF noted, the statistical use of these firearms in homicides “continued to decrease.” A study commissioned by Congress also found that the banned firearms and magazines “were never used in more than a modest fraction of all gun murders,” NSSF said.
