CA Court of Appeals: 2A Doesn’t Apply to AK Platform Rifles

[gryphon]

California’s 4th District (Division 1) Court of Appeal just held that the Second Amendment does not apply to semi-automatic firearms like “AK” platform rifles. Click here to read the decision. “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’ (Heller, supra, 554 U.S. at p. 626), 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 . . . 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’ (James, supra, 174 Cal.App.4th at p. 677), which Miller concluded (with apparent approval from Heller) was outside the scope of the Second Amendment’s guarantee. (James, at pp. 674-675.)”

http://www.thetruthaboutguns.com/2013/10/robert-farago/breaking-ca-court-appeals-2a-doesnt-apply-ak-platform-rifles/

[gryphon]

I believe that SBS were ruled outside 2A because the ATF lied and said it wasn't a typical military weapon, that it wasn't typically used in combat. So the entire reason why SBS is regulated is the same reason that ARs should not be regulated, because ARs ARE used in combat.

Is something lost on courts in California?

[Pond Scum]

The comments made by GR Mead in the linked article were very informative.  It shows how crappy rulings can be made if the lawyers do a crappy job.  Sigh.

G.R. Mead
October 22, 2013
Well. first of all, Miller did not say that. The Miller Court basically held that without record evidence that the short-barreled shotgun had some utility for a militia purpose, the Court could not hold that the prohibition violated the Second Amendment. The Court said:

“In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

That evidence was not in the record because the lower court had dismissed the charge on Second Amendment grounds. The Miller case was procedurally bizarre and that resulted in a bizarre form of ruling. The case was handled by court-appointed counsel, who asked that the case be submitted on the government’s brief alone and neither briefed the argument nor appeared to argue the case at oral argument. Miller himself was killed before the ruling was handed down.

The fact is that short-barreled shotguns had a demonstrable military history in WWI in regular use to clear trenches, and there would have been no lack of such evidence had it been competently tried.

As to the militia utility of the AK platform there is no lack of evidence from all over the world.