Justice Oliver Wendall Holmes had a famous saying: “Hard cases make bad law.”
This is quite true.
A particularly noxious defendant can assert rights that may very well have been abrogated during an arrest or trial. Recognition of those violations might well negate the defendant’s conviction.
Judges are human, and the idea of setting a miscreant free might violate the judge’s own sense of decorum. Other times, judges might have serious personal reservations about a legislative policy articulated by statute, or a higher court’s interpretation of that statute. They are troubled by following their Constitutional pathway and, instead, decide to do a little judicial intellectual gymnastics.
This rarely ends well.
We see this in Sylvester v Harris when the 9th Circuit Court of Appeals made the laughable argument that a ten-day waiting period was perfectly acceptable even for those who already owned firearms because the individual purchaser might seek to engage in criminal conduct “with the particular gun they are attempting to purchase”.
Sometimes, though, the courts screw it up so badly it actually has the potential to be good.
Even though that is counterintuitive, it can happen. When it does, and the net benefit is an expansion of freedom (when the judge was trying to expressly restrict freedom), we must stand aside and chuckle. Well done, Your Honor… well done.
Such is the case of People v Bocanegra just recently decided by the California Court of Appeals 3rd Circuit, with an opinion authored by Judge McAdam.
McAdam is anything but a gun rights supporter… that is clear from the opinion. But the intellectual pretzel he twists himself into might just lay the seeds, not just for a reversal, but potentially an expansion of gun rights in the Golden State. This is something I am sure the good judge did not foresee.
So… let’s get into the opinion…
The judge starts with an exhaustive narrative of the facts leading up to the current case at bar. Without going through the entire salacious story, suffice to say Mr. Bocanegra has an “interesting” background. He and his friend, “Vernon R”, have been friends for multiple decades. They have shared almost everything in their time together… including their spouses. Though, evidently, that freedom of interfamilial liaison had not been formally agreed to by either of these two gentlemen. Well… when Mr. Bocanegra found out that Vernon had shared a tryst with his wife, after Mr. Bocanegra had engaged with similar adventures with Vernon’s, the long knives came out.
More specifically, out came the AR-15 (as well as a couple of pistols).
Mr. Bocanegra went to Vernon’s house and fired a couple of rounds from his revolver into the home… because… well… that seems entirely rational.
The police caught up with Mr. Bocanegra and, at the time of his arrest, found the revolver, a 1911, and a non-California compliant AR-15 (sac re bleu!).
Among the many charges that Mr. Bocanegra was convicted of was a violation of CA Penal Code §30605… yeah the “Assault Weapons Control Act” that is currently being litigated in Rupp v Bonta, as well as Miller v Bonta.
His appeal to the State’s 3rd Circuit Court of Appeals was based exclusively on overturning his conviction on this particular statute, claiming that it is unconstitutional post-Bruen.
Judge McAdam would have none of it.
Mr. Bocanegra has a valid (and I believe correct) point. When doing a NYSRPA v Bruen analysis, we first have to see if the statute restricts the challenger’s Second Amendment rights. Here, it clearly does. Mr. Bocanegra cannot possess an AR-15 unless it is rendered California compliant by either making it more dangerous to operate, or alternatively, making it look like a plumber constructed it.
Once the 2A nexus has been established, the burden now shifts to the State to show how the regulation is consistent with the history and text of firearms regulations at the time of the ratification in 1791. (Note: It does not have to be an exact match… it can be analogous to a regulation at that time.)
Judge McAdam never lets Mr. Bocanegra get that far.
He claims that “assault weapons” are not covered by the Second Amendment. His first two arguments are laughably pathetic and ultimately doom his opinion to reversal. The last one, though, is extremely interesting and very, very problematic for the State.
Argument The First:
Bruen does not cover hardware.
To quote from the actual opinion: “Defendant relies extensively on Bruen in making his argument that section 30605 violates the Second Amendment. Bruen did not analyze whether a particular type of firearm is protected under the Second Amendment. Rather, Bruen focused on whether New York’s statutory public-carry licensing scheme violated the Second Amendment right to carry handguns publicly for self-defense.” (p. 11).
The day after Bruen was decided, the Supremes GVR’d (Granted Vacated Remanded) Duncan v Bonta (the magazine case). In English, this means the Supremes decided California’s magazine capacity restrictions should be sent back to the lower court to be reevaluated under the new Bruen test.
If Judge McAdam was correct and Bruen was only about public carry, then the Supremes would not have done this.
Judge McAdam is flat-out wrong… and he knows it. In this he is being completely disingenuous.
Argument the Second:
AR-15s are not covered by the Second Amendment because they are not in “common use”. In order for the conduct (or hardware) to be covered by the Second Amendment, the courts employ a “common use test”. Here, the judge bifurcates this test into two separate parts. We will discuss the second part in a bit… because that is the “money part” as far as we are concerned, and where Judge McAdam might have inadvertently done us a favor.
But let’s stay with the first clause of his version of “common use”. He claims that AR-15s are just not that common in California. He cites no data for this assertion, merely stating: “AR-15 style rifle police found in defendant’s car are, like the short-barreled shotgun addressed in Miller, supra, 307 U.S. 174 weapons not typically possessed by law-abiding citizens for lawful purposes.”
People in California don’t commonly own AR-15s?!?
Because they are not “commonly owned” as he claims, then, by definition, they are “dangerous and unusual” and, thus, outside the scope of Second Amendment protection.
There is really no easy way of saying this: The judge is lying.
But then we get to his final argument, and here we may have found some common ground…
Argument the Third:
He claims the weapon was not used for the “lawful purpose of self-defense”. (Now… some judges, and it appears this one as well, have misread Heller v DC (where the common use test comes from) to read the ONLY lawful purpose is self-defense. This is not accurate. The quote actually reads “…for lawful purposes SUCH AS self-defense” (emphasis added).
Since Mr. Bocanegra was engaged in unlawful activities (shooting into his former friend’s house ) the weapon itself is not protected by the Second Amendment.
He then extrapolates that if the weapon is not covered by the Second Amendment, then CA Penal Code § 30605 is perfectly acceptable.
Here Judge McAdam is trying to pound a square peg into a round whole, and…occasionally… if you use enough force, you might succeed. But the outcome is not pretty.
You see, based on his reasoning, the reverse is also true.
If Mr. Bocanegra was NOT engaged in illegal conduct, let’s say he simply possessed a standard AR-15 in the original configuration that God intended, but outside the scope of 30605, then the Second Amendment would apply… and the statute would fail the Constitutional test.
So, in a sense, what Judge McAdam is stating is there needs to be a predicate crime. There needs to be some form of conduct that is illegal and then removes the weapon from Second Amendment protection. Once that predicate crime has been established, if the nefarious weapon was not rendered California compliant, then 30605 could be used as an enhancement to the underlying criminal conduct. (Think of a robber being charged with robbery for holding up a liquor store… that is the predicate crime. When it is discovered he used a firearm in the act there can be a “gun enhancement” attached to it.)
This was definitely not what Judge McAdam set out to do… but it is what he did. Well done, Your Honor… well done.