BREAKING: Lawsuit Challenging California “Assault Weapon” Ban Moves Forward; Federal Judge Denies California’s Motion to Dismiss

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Lawsuit Challenging California “Assault Weapon” Ban Moves Forward; Federal Judge Denies California’s Motion to Dismiss

SAN DIEGO (September 23, 2020) — Today, Firearms Policy Coalition (FPC) announced that Southern District of California Federal District Court Judge Roger T. Benitez has issued an order denying the State of California’s partial motion to dismiss in the case of Miller, et al. v. California Attorney General Xavier Becerra, et al., an FPC-led federal lawsuit challenging the constitutionality of California’s “assault weapons” ban on common semi-automatic firearms. The Court’s order is available online at

The order, filed today, states that, regarding the issue of standing, the “Court finds Plaintiffs have standing on all claims in large part flowing from the criminal penalties they could face.” Explaining that California’s Roberti-Roos Assault Weapons Control Act of 1989 “imposes a felony criminal penalty for anyone who manufactures, distributes, imports, keeps for sale, offers for sale, or lends an ‘assault weapon’,” with “prescribed prison sentences [of] four, six, or eight years,” the Court’s order said that the “result is that any law-abiding citizen may lose his liberty, and (not ironically) his Second Amendment rights, as a result of exercising his constitutional right to keep and bear arms if the arm falls within the complicated legal definition of an ‘assault weapon.’” It went on, “If ever the existence of a state statute had a chilling effect on the exercise of a constitutional right, this is it.”

Thus, the Court held, “It has long been the case that a plaintiff possesses Article III standing to bring a pre-enforcement challenge to a state statute which regulates the exercise of a federal constitutional right and threatens a criminal penalty.” And while the “Defendants argue that Plaintiffs lack standing to challenge seven particular statutes among all of the various interlocking statutes affecting the regulation of guns deemed assault weapons,” the Court “finds to the contrary, that at least one and perhaps all of the Plaintiffs have Article III standing to challenge each of the statutes — whether singly or as an entire regulatory scheme. To sum up, the Court finds that the individual Plaintiffs and the organizational Plaintiffs have standing to challenge the nuisance statute along with the rest of the statutory scheme which defines, identifies and restricts ‘assault weapons’ which are alleged to be protected by the Second Amendment for possession and use by law-abiding citizens for lawful purposes.” Accordingly, the case will proceed. 

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Already pending before the Court is the plaintiffs’ motion for preliminary injunction, filed last December. That motion was originally set for a March hearing, but circumstances surrounding COVID-19 delayed the hearing. According to that motion, the plaintiffs are seeking a “preliminary injunction” and “an order enjoining Defendants Attorney General Xavier Becerra and his agent, servants, employees, and those working in active concert with him, from enforcing or giving effect to California Penal Code sections 30515 (a) and (b), 30600, 30605, 30800, 30910, 30915, 30925, 30945, 30950, 31000, and 31005, as well as Title 11, California Code of Regulations section 5460 and 5471 during the pendency of this action.” The Court was subsequently informed that the plaintiffs will also seek relief against the newest expansion of the State’s “assault weapon” ban, enacted in Senate Bill 118 passed and signed into law by Governor Gavin Newsom, a radical anti-Constitutionalist, this year.

“We are delighted with Judge Benitez’s order denying the State’s motion to dismiss and look forward to moving on to litigating our pending preliminary injunction motion,” said Adam Kraut, FPC’s Director of Legal Strategy. “As the order points out, the criminal penalties associated with a violation of the challenged laws can result in imprisonment and the loss of one’s ability to exercise their fundamental, individual Second Amendment rights. That’s why this case is so important to ensuring that people will no longer face those criminal penalties for responsibly exercising their rights.”

“Today’s order means that this important lawsuit will move forward as quickly as possible,” explained FPC President Brandon Combs. “Under the Supreme Court’s Heller, McDonald, and Caetano decisions, the plaintiffs and all law-abiding People have a right to keep and bear these common semi-automatic arms for all lawful purposes. We will continue to work through this case and others to restore the full scope of Second Amendment rights in California and throughout the United States.”

Firearms Policy Coalition ( is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to protect and defend the Constitution of the United States—especially the fundamental, individual Second Amendment right to keep and bear arms—advance individual liberty, and restore freedom.

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