White Paper: Why The Good Cause Requirement for Assault Weapon Possession is Illegal

3 May, 2025

Executive Summary

The California Department of Justice (DOJ), Bureau of Firearms, requires a “good cause” finding for permits to possess assault weapons under 11 CCR § 4128(a), as implemented by 11 CCR §§ 4130–4137. This brief article is not a comprehensive study of the myriad of reasons that the “good cause” provision for possession of “assault weapons” is illegal. Rather, it focuses on the fact that there is no statutory “good cause” requirement for permits to possess, and why, therefore, it is illegal for the DOJ to maintain such a position. Again, there is no “good cause” requirement for possession within California’s “Assault Weapons Control Act,” as good cause is statutorily limited to sales and transfers, not possession.

This requirement is illegal because it is ultra vires, exceeding the DOJ’s authority under California law. Penal Code § 31000, which governs possession permits, omits “good cause,” while Penal Code § 30630 explicitly requires it for manufacturing and sales permits. Under the canon of expressio unius est exclusio alterius, this omission is intentional, indicating the Legislature did not authorize “good cause” for possession. 11 CCR § 4128(a) thus violates Government Code § 11342.2, which prohibits regulations conflicting with statutes. Additionally, the requirement infringes on Second Amendment rights by imposing an unconstitutional discretionary barrier, inconsistent with New York State Rifle & Pistol Association v. Bruen (2022), and violates procedural due process by arbitrarily restricting property rights in lawfully owned firearms. The “good cause” requirement is illegal under state administrative law, unconstitutional under federal law, and must be invalidated to restore statutory and constitutional compliance.

Background

California’s Assault Weapon Regulations

California regulates firearms classified as “assault weapons” under the Roberti-Roos Assault Weapons Control Act of 1989 and related statutes (Penal Code §§ 30500–30675):

  • Penal Code § 30605: Prohibits possession of assault weapons without a permit.
  • Penal Code § 31000: Authorizes the DOJ to issue possession permits for exemptions, such as individuals who lawfully possessed and registered assault weapons before their classification (e.g., under Penal Code § 30900), law enforcement officers, or specific uses (e.g., film production). Notably, it does not mention “good cause” as a requirement.
  • Penal Code § 30630: Authorizes permits for manufacturing, sales, or transfers, explicitly requiring “a finding of good cause.”
  • 11 CCR § 4128(a): Mandates that the DOJ “shall not issue a license or permit unless the applicant demonstrates good cause,” applying to all dangerous weapons permits, including assault weapon possession.
  • 11 CCR §§ 4130–4137: Outline the application process, requiring applicants to submit a “Statement of Good Cause” with evidence (e.g., registration records, law enforcement affiliations), and establish investigation, denial, and compliance procedures.

The “good cause” requirement limits possession to approximately 185,000 registered assault weapons (DOJ, 2018), law enforcement, or narrow exemptions, effectively barring new acquisitions by most residents and restricting transfers.

Legal Framework

  • California Administrative Law: Government Code § 11342.2 requires regulations to be “consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute.” Regulations that contradict statutory intent are ultra vires and invalid (Morris v. Williams, 67 Cal. 2d 733, 1967; Yamaha Corp. of America v. State Bd. of Equalization, 19 Cal. 4th 1, 1998).
  • Statutory Construction: The canon of expressio unius est exclusio alterius holds that the inclusion of a term in one statutory provision and its omission in another is presumed intentional (Russello v. United States, 464 U.S. 16, 1983; People v. Guzman, 35 Cal. 4th 577, 2005).
  • Second Amendment: The right to keep and bear arms is protected under District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010). Bruen (597 U.S. 1, 2022) invalidated discretionary “good cause” requirements for concealed carry permits, requiring restrictions to align with historical traditions of firearm regulation.
  • Due Process: The Fourteenth Amendment protects property interests in lawfully owned firearms, prohibiting arbitrary deprivations without adequate process (Mathews v. Eldridge, 424 U.S. 319, 1976).

Analysis

Why the “Good Cause” Requirement is Illegal

The “good cause” requirement for assault weapon possession permits under 11 CCR § 4128(a) is illegal for three primary reasons: it is ultra vires under California administrative law, unconstitutional under the Second Amendment, and a violation of procedural due process.

1. Ultra Vires Regulation: Conflict with Statutory Authority

The DOJ’s imposition of a “good cause” requirement for possession permits exceeds its statutory authority and contradicts Penal Code § 31000, rendering 11 CCR § 4128(a) illegal.

  • Statutory Discrepancy: Penal Code § 31000 authorizes possession permits for specific exemptions, such as pre-registered owners, law enforcement, or film industry uses, without mentioning “good cause.” In contrast, Penal Code § 30630(a) explicitly requires “a finding of good cause” for manufacturing and sales permits. Under expressio unius est exclusio alterius, the Legislature’s inclusion of “good cause” in Penal Code § 30630 and omission in Penal Code § 31000 is intentional, indicating no such requirement was intended for possession (Russello v. United States, 464 U.S. 16, 1983; People v. Guzman, 35 Cal. 4th 577, 2005).
  • Administrative Law Violation: Government Code § 11342.2 prohibits regulations that conflict with statutes. By imposing “good cause” where Penal Code § 31000 is silent, 11 CCR § 4128(a) alters the statute’s scope, adding a discretionary barrier not authorized by the Legislature (Morris v. Williams, 67 Cal. 2d 733, 1967). The DOJ’s rulemaking authority under Penal Code § 18900 allows procedural regulations but not substantive requirements contradicting express law (Yamaha Corp. of America v. State Bd. of Equalization, 19 Cal. 4th 1, 1998).
  • Legislative Intent: The Roberti-Roos Assault Weapons Control Act aims to restrict assault weapon proliferation for public safety. However, Penal Code § 31000’s exemption-based framework reflects a legislative balance, allowing possession by pre-registered owners and specific groups without additional hurdles. 11 CCR § 4128(a) disrupts this balance, imposing a requirement that undermines the Legislature’s intent to facilitate possession for eligible individuals.
  • Judicial Review: California courts invalidate ultra vires regulations (Agnew v. State Bd. of Equalization, 21 Cal. 4th 310, 1999). Post-Loper Bright Enterprises v. Raimondo (144 S. Ct. 2244, 2024), courts interpret statutes de novo, increasing scrutiny of 11 CCR § 4128(a)’s conflict with Penal Code § 31000.

Conclusion: 11 CCR § 4128(a) is ultra vires for possession permits, as it contradicts Penal Code § 31000’s intentional omission of “good cause,” violating Government Code § 11342.2.

2. Second Amendment Violation

The “good cause” requirement infringes on the Second Amendment by imposing an unconstitutional discretionary barrier to possessing assault weapons, which are protected for self-defense and other lawful purposes.

  • Bruen Standard: Bruen (597 U.S. 1, 2022) struck down discretionary “good cause” requirements for concealed carry permits, holding that firearm restrictions must be consistent with the nation’s historical tradition of regulation. The government bears the burden to show a historical analogue for 11 CCR § 4128(a)’s “good cause” requirement for possession in the home, where Second Amendment protections are strongest (Heller, 554 U.S. 570, 2008).
  • Assault Weapons as Protected Arms: Assault weapons, such as AR-15s, are commonly used for self-defense, hunting, and sport, constituting “arms” under the Second Amendment (United States v. Duarte, 101 F.4th 657, 9th Cir. 2024). Approximately 24 million modern sporting rifles are in circulation (NSSF, 2023), underscoring their prevalence.
  • No Historical Analogue: No historical tradition exists for requiring “good cause” to possess firearms in the home. Early American laws regulated militias or public carry but not private possession (Bruen). 11 CCR § 4128(a)’s discretionary standard, requiring applicants to justify possession (e.g., via registration or exemptions), fails Bruen’s test.
  • Ultra Vires Aggravation: The requirement’s lack of statutory authorization further undermines its constitutionality, as it imposes an arbitrary restriction not contemplated by the Legislature.

Conclusion: 11 CCR § 4128(a) violates the Second Amendment by imposing an unconstitutional “good cause” requirement without historical precedent, particularly given its ultra vires nature.

3. Procedural Due Process Violation

The “good cause” requirement violates procedural due process under the Fourteenth Amendment by arbitrarily depriving individuals of their property interest in lawfully owned or acquirable assault weapons.

  • Property Interest: The right to possess lawfully acquired firearms is a protected property interest (Heller, 554 U.S. 570, 2008). Penal Code § 31000 establishes a statutory entitlement to possession permits for eligible individuals (e.g., pre-registered owners), creating a due process right (Board of Regents v. Roth, 408 U.S. 564, 1972).
  • Arbitrary Deprivation: 11 CCR § 4128(a)’s “good cause” requirement introduces a discretionary barrier not authorized by Penal Code § 31000, leading to arbitrary permit denials. For example, applicants with valid registration records may be denied if the DOJ deems their “good cause” insufficient, lacking clear criteria (Mathews v. Eldridge, 424 U.S. 319, 1976).
  • Inadequate Process: The DOJ’s permitting process (11 CCR §§ 4130–4137) lacks transparent standards for “good cause,” and appeals (Penal Code § 32010) may not adequately address arbitrary denials, violating procedural fairness.
  • Ultra Vires Impact: The regulation’s invalidity exacerbates the due process violation, as it imposes an unauthorized restriction on a protected right.

Conclusion: 11 CCR § 4128(a) violates procedural due process by arbitrarily restricting possession without statutory basis or adequate safeguards.

Counterarguments and Responses

  • Counterargument: Public Safety Justification: The DOJ may argue that 11 CCR § 4128(a) enhances public safety by limiting assault weapon possession, consistent with the Roberti-Roos Act’s goals.
    • Response: The Legislature’s omission of “good cause” in Penal Code § 31000, under expressio unius est exclusio alterius, indicates that public safety does not require this restriction for possession. The ultra vires regulation lacks legitimacy (Gov. Code § 11342.2).
  • Counterargument: DOJ Rulemaking Authority: The DOJ may claim Penal Code § 18900 authorizes procedural requirements like “good cause” to implement Penal Code § 31000.
    • Response: Regulations cannot contradict express statutory intent (Yamaha, 19 Cal. 4th 1, 1998). Penal Code § 31000’s silence, contrasted with Penal Code § 30630, precludes “good cause.”
  • Counterargument: Historical Precedent for Restrictions: The DOJ may cite historical firearm regulations to justify 11 CCR § 4128(a) under Bruen.
    • Response: No historical tradition supports discretionary “good cause” requirements for home possession, and Bruen invalidates such standards (Duarte, 101 F.4th 657, 2024).

Legal Implications

The illegality of 11 CCR § 4128(a) has significant implications:

  • Invalidation: The regulation can be invalidated through an Administrative Procedure Act challenge (Gov. Code § 11350) or judicial review (Code Civ. Proc. § 1085), restoring Penal Code § 31000’s exemption-based framework.
  • Constitutional Relief: Federal lawsuits under 42 U.S.C. § 1983 can seek injunctive relief for Second Amendment and due process violations, halting enforcement.
  • Market Restoration: Removing the requirement would ease possession restrictions, potentially expanding the assault weapon market (~20–25% of U.S. rifle sales, NSSF, 2023) and interstate commerce.