The gun issue moved to the top of the policy agenda after more than 30 tragic deaths from mass shootings over the weekend. California has some of the toughest gun laws in the country, so one wonders what lawmakers would do or could do in response to the latest shootings beyond rhetorical hits against President Trump and Congress for not setting tougher national gun laws.
There are a few laws pending in the legislature to restrict gun purchases but none have garnered much attention with the exception of a new tax on gun sales.
But no moves to prohibit and remove assault weapons and assault rifles have come forward.
Will an attempt be made through the initiative process, California’s historic method of bypassing the legislature to make new laws?
If such an effort occurred it would face the formidable obstacle of the Second Amendment to survive.
California has a mixed record on guns and the initiative process. Proposition 15 in 1982 to require handgun owners to register guns with the Department of Justice fell at the polls almost 2 to 1. In a clearly different era both in demography and voting habits, state voters passed Proposition 63 in 2016 and its gun prohibitions by about the same nearly 2 to 1 margin.
While the popularity of restrictive gun laws in the state may be strong, moving past the courts and the conservative leaning United States Supreme Court would be difficult.
The courts are dealing with challenges to some of California’s recent gun laws, including opposition to a law that requires a gun purchaser reach the age of 21 before buying; and two tests of Proposition 63 that banned magazines that had the capacity of holding more than ten rounds and the prohibition in Prop 63 that disallowed direct sales of ammunition by out of state vendors.
A March decision by United States District Judge Roger T. Benitez ruling against the ban on large magazines lays out the precedents and support for a greater respect for the Second Amendment in gun law cases that could undermine even greater gun law restrictions in California. (The judge’s decision is on appeal by the state.)
Benitez argued that the ten-shot cap on ammunition magazines often leaves people defending their homes without the necessary ammo to protect themselves. He offered examples of true-life situations.
Benitez acknowledged the concern for mass shootings but said in the whole picture they are extremely rare. While he pointed to no mass shootings in California in 2017, he featured statistics of the quarter million instances of residential burglaries, robberies, assaults and homicides in the state in that year.
Will his arguments stand if only applied to magazine size or will higher courts use the Second Amendment precedents followed by Benitez to cut down more restrictive gun laws or attempts to take guns away? (Heller v. D.C. affirmed the personal right to keep and bear arms and McDonald v. City of Chicago stated that the Second Amendment applies to the states.)
Benitiz wrote about public support for tougher gun laws: “Regardless of current popularity, neither a legislature nor voters may trench on constitutional rights.”
He concluded his opinion with: “This decision is a freedom calculus decided long ago by Colonists who cherished individual freedom more than the subservient security of a British ruler. “
The state argues that mass shootings are suffered by weapons that are not home defense devices, the supposition that Heller and McDonald are based on.
If the District Judge’s ruling withstands the appeal by the State of California, there will be little room for the legislature or an initiative to escape from recent Second Amendment rulings.
A good primer on California gun laws and how they came to be was put together by CALmatters Ben Christopher, which you can find here.