The Second Amendment Foundation (SAF) and Calguns Foundation have filed a lawsuit in U.S. District Court in California to have the state's definition of “assault weapons” declared unconstitutionally vague. Joining these organizations as a Plaintiff is Iraq combat veteran Brendan John Richards who served as a U.S. Marine.

The impetus for this legal action stems from Richards' six-day incarceration in the Sonoma County jail last May. It was then that City of Rohnert police officer Dean Becker responded to a disturbance at a motel where Richards was staying. Through the course of his investigation, Becker discovered that Richards had two pistols and a rifle (all unloaded) in the trunk of his car. Becker arrested Richards for unlawful possession of an assault weapon. The charges were subsequently dropped by the Sonoma County District Attorney's office when a report from the state Department of Justice determined that none of the firearms met the state's definition of an assault weapon.

     “California’s law allows possession of a variety of firearms that do not meet the state’s assault weapons definition, which we believe is unconstitutionally vague,” said SAF Executive Vice President Alan Gottlieb. He added, “Mr. Richards was jailed for almost a week, when he had broken no law because a police officer had a conflicting view and the District Attorney’s office believed him.”

Officer Becker and the city that employs him have been named as defendants in the case, along with California Attorney General Kamala Harris and the California Department of Justice.

Calguns Executive Director Gene Hoffman noted in an SAF news release:

     “California attempts to make a distinction among firearms where no natural one exists. The generic definition of so-called ‘assault weapons’ was simply an attempt to prohibit possession of guns that look scary.”

Attorneys Don Kilmer of San Jose and Jason A. Davis of Mission Viejo will represent the Plaintiffs. Kilmer said that the case will shed light on the “arrest them first and let the courts sort it out” mentality prevalent among law enforcement agencies. This is especially important, says Kilmer, “now that the right to keep arms has correctly been recognized as fundamental and applicable to California.”

He is here referring to the case United States v. Emerson where the Fifth Circuit Court of Appeals determined that the Second Amendment does guarantee individuals the right to keep and bear arms, a decision that was upheld by the Circuit Court of D.C. in Parker v. District of Columbia. Upon review of the Parker case in District of Columbia v. Heller, the Supreme Court of the United States ruled in 2008 that the Second Amendment "protects an individual right to keep and bear arms". Further case law has defined gun ownership as an individual right that has been incorporated against all states through the Due Process Clause of the 14th Amendment.

The Second Amendment Foundation provided an amicus brief and a fund for the Emerson case.