Does Bruen Make Penal Code 30605(a) Unconstitutional?

Following the U.S. Supreme Court’s 2022 decision in New York Rifle & Pistol Association, Inc. v. Bruen, declaring improper a 1911 New York concealed carry pistol licensing law, many wondered how it would be applied to other firearm laws nationwide. New York Rifle & Pistol Ass’n v. Bruen (2022) ___ U.S. ___, 213 L. Ed. 2d 387 (“Bruen”).

This curiosity was based, in large part, on Bruen’s reasoning that rejected the second step of the two-part test that had been widely embraced in federal courts of appeal following District of Columbia v. Heller (2008) 554 U.S. 570 (holding the District of Columbia’s “ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”).

That two-part test, rejected by the U.S. Supreme Court in Bruen was as follows: First, the government must justify a regulation by establishing it regulated activity falling outside the scope of the Second Amendment right based on its historical meaning, and if the government failed to do so, the judge would engage in what the Supreme Court called a means-end scrutiny test.  Bruen, supra, ___ U.S. ___, 213 L. Ed. 2d at pp. 405-406.

This means-end scrutiny test refers to familiar tests employing standards including strict scrutiny and intermediate scrutiny.  About this means-end scrutiny step of the analysis, the majority in Bruen declared: “Despite the popularity of this two-step approach, it is one step too many.  Step one of predominant framework is broadly consistent with Heller, meaning the government must prove that the firearm regulation is part of the historical tradition that limits the outer bounds of the right to keep and bear arms. 

It is against this framework that the Third Appellate District Court in Sacramento recently decided the case of People v. Alex Andy Bocanegra on April 28, 2023. 

The case arose in San Joaquin County when Mr. Bocanegra became enraged at Vernon R., his very close friend for decades, who admitted he had slept with Mr. Bocanegra’s wife.

Mr. Bocanegra went to Vernon R.’s house at 1:45 a.m. on January 12, 2020, while Vernon R. was asleep in his room.  Vernon R. awoke to the sound of breaking glass.  He got up and went to the room with the apparent intruder entering his house.  Vernon R. then saw a person holding a flashlight and heard the click of a gun.

Vernon R. then ran away, but gunshots followed him, however, no shots hit him.  Police later found Mr. Bocanegra who admitted to shooting at Mr. Bocanegra with an AR-15.

The San Joaquin County District Attorney’s officer charged Mr. Bocanegra with many crimes, but the scope of this article will limit itself to the issues arising out of just the second count, a violation of Penal Code § 30605(a), possession of an assault rifle, which the jury convicted Mr. Bocanegra of violating.

Penal Code § 30605(a) provides: “Any person who, within this state, possesses any assault weapon, except as provided in this chapter, shall be punished by imprisonment in a county jail for a period not exceeding one year.”  “Assault weapon is defined as both a weapon with a particular feature that enhances the weapon’s lethality, as well as specified semiautomatic firearms.”

The Second Amendment provides that citizens have “the right to possess and carry weapons typically possessed by law-abiding citizens for lawful purposes such as self-defense.”  People v. James (2009) 174 Cal. App. 4th 662 (Penal Code § 12280(c), which prohibited possession of .50 caliber BMG rifles was upheld as constitutional).

On appeal to the Third Appellate District, Mr. Bocanegra set forth multiple grounds for appeal (including on other charges), but for this article, we will narrow the scope to just his argument that Penal Code § 30605(a) violated the Second Amendment as construed by the U.S. Supreme Court’s recent decision in New York State, etc. v. Bruen, supra.

The Third Appellate District rejected this argument, insofar as this same argument has been raised at to other similar firearms ban and cited to District of Columbia v. Heller, as well as James.  In its evaluation, the Third Appellate District held that assault rifles are not weapons of self-defense, so the regulation prohibiting possession of an assault weapon like an AR-15 was not a Second Amendment violation.