It is a rare day in America when news of another tragic gun shooting does not headline the news. The clash between the Second Amendment and the right of states to pass aggressive gun laws rages on. One recent case, which upheld California’s right to impose mandatory prison sentences on those who possess assault weapons, shines a small ray of hope into the nation’s gun violence darkness.

Alex Andy Bocanegra is an angry husband who went after his former friend when he learned he was sleeping with his wife. One night, Bocanegra decided to get revenge by going to his ex-friend’s home armed with three guns, including an AR-15 assault rifle. The friend escaped, but Bocanegra was charged with and found guilty of assault with a firearm and related crimes. He appealed, arguing that the Second Amendment and a recent Supreme Court case mandated the reversal of his assault weapon charges. A California appellate court disagreed.

A unanimous three-judge panel of California’s Third District Court of Appeal affirmed the defendant/appellant’s weapons convictions issued by Superior Court Patrick J. Smalling of San Joaquin County but remanded him for resentencing on his assault charge. The opinion was authored by Yolo Superior Court Judge Samuel T. McAdam, sitting on assignment.

The facts of the case are right out of a soap opera. Bocanegra and his friend Vernon R. had known each other since childhood. While spending Christmas together in 2018, Bocanegra slept with Vernon R.’s girlfriend. Vernon and Bocanegra’s wife paid him back by sleeping together in 2019. In January 2020, Bocanegra decided on payback. He went to Vernon R.’s home, broke a window, fired several shots and aimed a gun at him. Vernon R. escaped and called the police who apprehended the defendant. The officer found an AR-15 and a box containing a “1911-style handgun” on the floor of the back seat.

Bocanegra was charged with attempted premeditated murder, possession of an assault weapon, discharging a firearm in a grossly negligent manner, and causing a concealed firearm to be carried in a vehicle while he was an occupant. The jury found him not guilty on the premeditated murder and attempted voluntary manslaughter charges, but guilty on all the weapons charges. He was sentenced to eight years and four months in prison.

After describing the facts, Judge McAdam turned to the law, which centered on California Assembly Bill 518, which was signed into law by Governor Gavin Newsom in October 2021. Bocanegra argued the new law should apply retroactively to his case. It revised Penal Code Section 654 by expanding judicial discretion about the length of prison sentences. Judges are now permitted to choose which punishment to impose when a defendant is charged with multiple crimes that carry different sentences. The appellate opinion agreed and remanded the case for “full resentencing.”

The key issue in the case, the constitutionality of Section 30605 of the California Penal Code, was then reviewed. This law, which defines possession of an assault weapon, states, “anyone within this state, possesses an assault weapon, except as provided in this chapter, will be punished by imprisonment for up to one year in a county jail… (or an alternate imprisonment.)” The defendant argued that the Code section “does not pass the simplified historical test” dictated by the United States Supreme Court in New York State Rifle & Pistol Association, Inc. v Bruen, in which Justice Clarence Thomas said, “The Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”

McAdams explained that California’s Roberti-Roos Assault Weapons Control Act (AWCA) of 1989, which is now part of the State’s Penal Code, was passed because the Legislature found “that the proliferation

and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state.” He then discussed U.S. Supreme Court precedents such as District of Columbia v. Heller, which allows possession of handguns in the home for the purpose of self-defense, but also said there is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” This, wrote McAdams, shows that the Second Amendment has limits.

The opinion then provided a 30-year historical perspective on California’s statute prohibiting possession of assault weapons. Previous cases have ruled that “the right secured by the Second Amendment is not… a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Rather, it is the right to possess and carry weapons typically possessed by law-abiding citizens for lawful purposes such as self-defense. It protects the right to possess a handgun in one’s home because handguns are a ‘class of “arms” that is overwhelmingly chosen by American society for the lawful purpose of self-defense.” Several additional California precedents agreed.

McAdams also discussed the high bar that must be met when challenging the constitutionality of a law. He ruled that Bocanegra did not meet that burden, writing, “…We again conclude the Second Amendment’s plain text does not cover defendant’s conduct.” He reiterated that “Defendant here certainly was not acting as a law-abiding citizen who possessed his AR-15 rifle for lawful purposes.” The opinion also pointed out that the California ban listed specific weapons that are to be banned, including the AR-15, which “are not typically possessed by law-abiding citizens for lawful purposes.”

The opinion closes with, “In short.., we conclude California’s prohibition of possession of assault weapons, now at section 30605, does not violate the Second Amendment…This is settled law.” If only it were settled law in every state that continues to permit the types of assault weapons used in countless mass shootings that tragically continue to make headlines nearly every week.