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Overturning CA's 'Assault Weapon' Ban; Ninth Cir. Decision on No “Right to Carry” in the Second Amendment

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Much has been written in the last couple of days regarding United States District Court Judge Roger Benitez’s decision on Friday declaring California’s ban on “assault weapons” — as defined in the statute — to be an unconstitutional limit on the right of California citizens “to keep and bear arms” under the Second Amendment.

But this was not Judge Benitez’s first foray into Second Amendment jurisprudence that produced a favorable outcome for advocates of Second Amendment rights. Back in August 2020, the Ninth Circuit upheld a lower court decision that similarly found as unconstitutional a related California statute — one banning the ownership of “large-capacity magazines.” The author of that lower court decision was Judge Roger Benitez.

In between those two decisions, there was an “en banc” decision from the Ninth Circuit on a different subject of constitutional disagreement over the meaning of the Second Amendment. In Young v. Hawaii, the Ninth Circuit upheld Hawaii’s “open carry” firearm regulations, which require applicants applying for an “open carry” license to show either an “exceptional case or demonstrated urgency” to carry a firearm. The plaintiff, George Young, twice applied for an “open carry” license, but his applications were denied based on his failure to meet the “exceptional case or demonstrated urgency” requirements.

These three decisions, along with dissenting views of judges in the two Ninth Circuit decisions, total 390 pages of written text. This article is not the place for readers to look for an in-depth analysis of the legal arguments presented. But there are some interesting aspects of Judge Benitez’s opinion on Friday that are worth noting because he takes some time to explain where Second Amendment jurisprudence stands — 13 years after the Supreme Court changed everything with its decision in the District of Columbia v. Heller.

As Judge Benitez wrote, there was Second Amendment law pre-Heller, and there is Second Amendment law post-Heller, and only the latter seems important to Judge Benitez — unlike the majority view in the en banc decision in Young v. Hawaii.

You can add to the mix here that the Supreme Court finally accepted

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