THE ASSAULT WEAPON BAN IS UNCONSTITUTIONAL (But Not Quite Yet!)
California is the Most Anti 2nd Amendment State
The assault weapon ban was addressed in Miller v. Bonta, No. 3:19-cv-01537-BEN-JLB which contends that the assault weapon is unconstitutional. In Miller v. Bonta the district court held California's assault weapons ban as contained in the Roberti-Roos Assault Weapons Control Act of 1989 was unconstitutional under the Second Amendment.
The ruling was issued on June 4, 2021, by U.S. District Judge Roger T. Benitez. He ruled that the Act was unconstitutional, finding it violated the right to keep and bear commonly used arms like the AR-15 for self-defense and other lawful purposes. The initial decision was based on District of Columbia v. Heller 554 U.S. 570 (2008). He issued a permanent injunction but stayed it for 30 days pending appeal. The Ninth Circuit stayed the ruling on June 21, 2021, keeping the ban in place.
Following the Supreme Court's New York State Rifle & Pistol Association, Inc. v. Bruen 597 U.S. 1 (2022) which established the "text, history, and tradition" test for gun laws, the Ninth Circuit vacated and remanded the case. On October 19, 2023, Judge Benitez again struck down the ban, ruling it lacked historical analogues and was an "extreme" restriction on protected arms. He issued another injunction, stayed for 10 days, but the Ninth Circuit extended the stay on October 28, 2023.
Attorney General Rob Bonta appealed both rulings, and as of December 1, 2025, the ban remains enforced while the Ninth Circuit appeal (No. 23-2979) is pending. Oral arguments occurred in January 2024, but no final decision was issued. Before deciding Miller, the Ninth Circuit (en banc) upheld the large-capacity magazine ban in Duncan v. Bonata 133 F.4th 852 (March 2025). After supplemental briefing to address the impact of the Duncan decision, Miller v. Bonta has been resubmitted for a decision by the Ninth Circuit panel.
Ninth Circuit Criticized
Duncan has been criticized for being out of step with Supreme Court rulings. The dissents in that case literally trash the logic of the majority as unfettered from any logic or Supreme Court decisions.
Consider the case, Morse v. Raoul (S.D. Ill., Sept. 5, 2025, No. 22-CV-02740-DWD) 2025 WL 2576434, at *6 [“The Ninth Circuit reads the Second Amendment so strictly that it concluded that only those components necessary for the function of the weapon receive the Amendment's protection.”] As the Illinois court aptly points out, “That view is not in keeping with the guidance of Heller and Bruen. By illustration, while it is true the Second Amendment does not specifically mention a sighting device, it is somewhat imperceptive not to recognize that the Second Amendment loses all meaning if the conclusion is that a sight, despite its obvious efficiency and safety attributes, is not included in the meaning of “arms” because it is not necessary to the functioning of the firearm.” Morse v. Raoul (S.D. Ill., Sept. 5, 2025, No. 22-CV-02740-DWD) 2025 WL 2576434, at *6
The Supreme Court Will Weigh In
It appears likely the U.S. Supreme Court will address the issue in the near future and substantially disagree with the Ninth Circuit’s holding in Duncan and its likely overruling in Miller. On June 2, 2025 the Supreme Court denied review in Snope v. Brown—a Second Amendment challenge to Maryland’s ban on certain semiautomatic rifles. The cert question was framed as “Whether the Constitution permits the State of Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America. (often referred to as “assault weapons”)” In a separate statement denying cert, Justice Kavanaugh implied that the Court will address the issue soon and that pending decisions from the federal appellate courts “should assist this Court’s ultimate decision making on the AR–15 issue.” Miller v. Bonta was cited as one of the many related cases in Justice Kavanaugh’s statement.
The 2nd Amendment lawyers at the Law Office of Daniel Horowitz believe that the Supreme Court will find that high capacity magazines, assault rifles and other accepted guns and gun attachments will be found to be legal when the U.S. Supreme Court rules.
If you have an 2nd Amendment issues call us at 925-283-1863 for an initial consultation.
