People v. Hardy

Filed 4/22/26

                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION SIX


THE PEOPLE,                             2d Crim. No. B343746
                                     (Super. Ct. No. 23F-04313)
     Plaintiff and Respondent,        (San Luis Obispo County)

v.

DYLAN JAMES HARDY,

     Defendant and Appellant.



      Dylan James Hardy appeals following guilty pleas to
unlawful assault weapon activity (Pen. Code1, § 30600, subd. (a)),
possession of a short-barreled shotgun (§ 33215), possession of a
silencer (§ 33410), unlawful large capacity magazine activity
(§ 32310, subd. (a)), and unlawful transfer of a handgun with no
licensed firearms dealer (§ 27545). Appellant received an eight-
year split sentence of four years in county jail and four years of
mandatory supervision.
      Appellant mounts facial constitutional challenges to his
convictions under the Second Amendment. We reject those
challenges and will affirm.

       1 Undesignated statutory references are to the Penal Code.
                            DISCUSSION
        “A well regulated Militia, being necessary to the security of
a free State, the right of the people to keep and bear Arms, shall
not be infringed.” (U.S. Const., 2d Amend.) This provision
“guarantee[s] the individual right to possess and carry weapons
in case of confrontation.” (District of Columbia v. Heller (2008)
554 U.S. 570, 592 [171 L.Ed.2d 637] (Heller).) “[T]he Second
Amendment right is fully applicable to the States.” (McDonald v.
Chicago (2010) 561 U.S. 742, 750 [177 L.Ed.2d 894].)
       In New York State Rifle & Pistol Assn., Inc. v. Bruen (2022)
597 U.S. 1 [213 L.Ed.2d 387] (Bruen), the Court clarified the
Second Amendment’s application: “When the Second
Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. The
government must then justify its regulation by demonstrating
that it is consistent with the Nation’s historical tradition of
firearm regulation. Only then may a court conclude that the
individual’s conduct falls outside the Second Amendment’s
‘unqualified command.’” (Id. at p. 24.)
       A facial constitutional challenge “is the ‘most difficult
challenge to mount successfully,’ because it requires a defendant
to ‘establish that no set of circumstances exists under which the
Act would be valid.’” (United States v. Rahimi (2024) 602 U.S.
680, 693 [219 L.Ed.2d 351].) Our review is de novo. (People v.
Anderson (2024) 104 Cal.App.5th 577, 584.)
       Unlawful Assault Weapon Activity (§ 30600, subd. (a))
       and Possession of a Short-Barreled Shotgun (§ 33215)
       Section 30600 prohibits conduct (e.g., manufacture, import)
regarding assault weapons or .50 BMG rifles. (§ 30600, subd.
(a)). Designated semiautomatic firearms (e.g., the Colt AR-15




                                 2
series) and firearms with specific features (e.g., a semiautomatic,
centerfire rifle with an overall length of fewer than 30 inches)
qualify as assault weapons. (§§ 30510, 30515.) Section 33215
prohibits similar conduct regarding—and possession of—short-
barreled shotguns or short-barreled rifles. (§ 33215.)
       Appellant’s challenges to these statutes fail because neither
assault weapons nor short-barreled shotguns constitute arms
entitled to Second Amendment protection.
       In Heller, the Court explained the Second Amendment does
not entail “a right to keep and carry any weapon whatsoever in
any manner whatsoever and for whatever purpose.” (Heller,
supra, 554 U.S. at p. 626.) Based on United States v. Miller
(1939) 307 U.S. 174 [83 L.Ed. 1206] (Miller), Heller recognized
the Second Amendment protects only “the sorts of weapons . . . ‘in
common use at the time.’” (Heller, supra, at p. 627.)
       In Miller, the Court rejected a Second Amendment
challenge to a federal indictment for transporting an
unregistered short-barreled shotgun in interstate commerce.
(Miller, supra, 307 U.S. at pp. 175, 178.) Heller “read Miller to
say only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens for lawful
purposes, such as short-barreled shotguns.” (Heller, supra, 554
U.S. at p. 625.) Heller reasoned Miller’s common use limitation
was “fairly supported by the historical tradition of prohibiting the
carrying of ‘dangerous and unusual weapons.’” (Heller, at p. 627.)
       Appellant has not shown short-barreled shotguns are in
common use for lawful purposes. Miller and Heller establish that
short-barreled shotguns are not entitled to Second Amendment
protection. Although appellant attacks Miller’s soundness,
Heller’s endorsement demonstrates the continuing validity of




                                 3
Miller’s holding regarding short-barreled shotguns. (Cf. People v.
Brown (2014) 227 Cal.App.4th 451, 468 [concluding former
section 12020, the predecessor to section 33215, “on its face did
not violate the Second Amendment”].)
       Attempting to demonstrate common use today for lawful
purposes, appellant cites a “press release” on a website associated
with Senator Rick Scott for short-barreled shotgun registration
data. But “[a]s an appellate court, absent exceptional
circumstances, we consider only evidence in the record.” (People
v. Crenshaw (2025) 116 Cal.App.5th 1169, 1178-1179 (Crenshaw);
Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th
434, 444 fn. 3 [“normally ‘when reviewing the correctness of a
trial court’s judgment, an appellate court will consider only
matters which were part of the record at the time the judgment
was entered’”], overruled on other grounds by Bristol-Myers
Squibb Co. v. Superior Court (2017) 582 U.S. 255, 264 [198
L.Ed.2d 395].) We decline to rely on empirical claims in sources
outside the record.
       Regarding unlawful assault weapon activity, appellant
confronts an even steeper task given the many California Court
of Appeal cases rebuffing similar challenges. (See, e.g., People v.
James (2009) 174 Cal.App.4th 662, 677 (James); People v.
Zondorak (2013) 220 Cal.App.4th 829, 836 (Zondorak); People v.
Bocanegra (2023) 90 Cal.App.5th 1236, 1257 (Bocanegra);
Crenshaw, supra, 116 Cal.App.5th at p. 1179.)
       As for the U.S. Supreme Court, Heller indicated bans on
“M-16 rifles and the like” would not violate the Second
Amendment. (Heller, supra, 554 U.S. at p. 627; see also James,
supra, 174 Cal.App.4th at p. 676.) Assault weapons like the AR-
15 “have a great deal in common with the military M-16 rifle.”




                                4
(Bocanegra, supra, 90 Cal.App.5th at p. 1250; see also Zondorak,
supra, 220 Cal.App.4th at p. 836 [“assault weapons are only
slightly removed from M-16-type weapons . . .”].) While Heller’s
statement on M-16 rifles is dictum, it strongly attests to the
constitutionality of section 30600’s prohibition on assault weapon
activity. (Cf. U.S. v. Serawop (10th Cir. 2007) 505 F.3d 1112,
1122 [“[W]e are ‘“bound by Supreme Court dicta almost as firmly
as by the Court’s outright holdings, particularly when the dicta is
recent and not enfeebled by later statements.”’”].)
       Facing Heller and overwhelming California precedent,
appellant relies heavily upon survey and statistical data. Again,
we decline to rely on these empirical sources, which are not
included in the record. (Cf. Crenshaw, supra, 116 Cal.App.5th at
pp. 1178-1179; People v. McCowan (2026) 117 Cal.App.5th 1071,
1094-1095.) Appellant has not shown assault weapons are
commonly used for lawful purposes.
       Appellant’s invocation of Caetano v. Massachusetts (2016)
577 U.S. 411 [194 L.Ed.2d 99] is inapposite. That brief per
curiam opinion addressed a state court’s reasons for holding the
Second Amendment does not extend to stun guns. (Id. at p. 411.)
Justice Alito’s concurrence, joined only by Justice Thomas, is not
binding authority. (Id. at p. 412.)
       Finally, appellant notes the Supreme Court recently stated
“[t]he AR-15 is the most popular rifle in the country.” (Smith &
Wesson Brands, Inc. v. Estados Unidos Mexicanos (2025) 605 U.S.
280, 297 [221 L.Ed.2d 910].) That case, however, concerned a
lawsuit against firearms manufacturers and did not even
reference the Second Amendment. Especially given Heller’s more
germane remarks, we will not extrapolate from the Court’s
parenthetical comment in a disparate context.




                                5
            Unlawful Large Capacity Magazine Activity
     (§ 32310, subd. (a)) and Possession of a Silencer (§ 33410)
       Section 32310, subdivision (a) prohibits conduct (e.g.,
manufacture, import) regarding large-capacity magazines
(LCMs), defined as any ammunition feeding device with the
capacity to accept more than 10 rounds, with certain exclusions.
(§§ 32310, subd. (a), 16740.) Section 33410 prohibits possession
of a silencer, defined as “any device or attachment of any kind
designed, used, or intended for use in silencing, diminishing, or
muffling the report of a firearm,” plus related parts. (§ 17210.)
       These statutes withstand appellant’s constitutional
challenges because neither LCMs nor silencers qualify as arms.
       “The 18th-century meaning [of arms] is no different from
the meaning today.” (Heller, supra, 554 U.S. at p. 581.)
Dictionaries of that time defined “‘arms’” as “‘[w]eapons of
offence, or armour of defence’” and as “‘any thing that a man
wears for his defence, or takes into his hands, or useth in wrath
to cast at or strike another.’” (Ibid.)
       In Duncan v. Bonta (9th Cir. 2025) 133 F.4th 852 (Duncan),
the Ninth Circuit concluded LCMs did not constitute arms as so
defined. (Id. at p. 867.) Without a firearm, an LCM “is benign,
useless in combat for either offense or defense. [LCMs] thus fall
clearly within the category of accessories, or accoutrements,
rather than arms.” (Ibid.) Nor is an LCM “necessary to operate
any firearm.” (Id. at p. 868.) As such, “the Second Amendment’s
plain text does not encompass a right to possess” LCMs. (Ibid.)
We find Duncan’s reasoning persuasive and follow it.
       Silencers likewise fail to meet the definition of arms.
Silencers are not weapons of offense or armor of defense. Nor are
they an object that a person “‘takes into his hands, or useth in




                                6
wrath to cast at or strike another.’” (Heller, supra, 554 U.S. at
p. 581.) Silencers are “optional accessories” unnecessary to
operate a firearm. (Duncan, supra, 133 F.4th at p. 868; see also
United States v. Cox (10th Cir. 2018) 906 F.3d 1170, 1186 [“A
silencer is a firearm accessory; it’s not a weapon in itself . . . .”].)
Accordingly, silencers fall outside the Second Amendment’s
guarantee.2
                Unlawful Transfer of a Handgun With
                No Licensed Firearms Dealer (§ 27545)
      Section 27545 provides that “[w]here neither party to the
transaction holds a dealer’s license issued pursuant to Sections
26700 to 26915, inclusive, the parties to the transaction shall
complete the sale, loan, or transfer of that firearm through a
licensed firearms dealer . . . .” (§ 27545.)
      “The plain text of the Second Amendment directly protects
one thing—the right to ‘keep and bear’” arms. (B & L
Productions, Inc. v. Newsom (9th Cir. 2024) 104 F.4th 108, 117.)
The Second Amendment is silent as to the sale or purchase of
arms. “Where the challenger is an individual whose direct
possessory right to ‘keep and bear Arms’ is not implicated,” the
Ninth Circuit applies the ancillary-rights doctrine. (United
States v. Vlha (9th Cir. 2025) 142 F.4th 1194, 1198.) “But the

      2 At the end of his opening brief, appellant includes a single

paragraph arguing California’s restrictions on silencers and
short-barreled firearms are federally preempted. Especially
given the complexity of federal preemption, we consider his
cursory, conclusory argument to be undeveloped and treat it as
forfeited. (See Allen v. City of Sacramento (2015) 234
Cal.App.4th 41, 52 [“We are not required to examine undeveloped
claims or to supply arguments for the litigants.”].)




                                    7
Second Amendment is limited in this context: it protects
ancillary activities only if the regulation of such activities
‘meaningfully constrain[s]’ the core individual possessory right.”
(Ibid.)
       Applying the ancillary-rights doctrine here, section 27545
does not meaningfully constrain an individual’s right to keep and
bear arms. Section 27545 regulates the sale, loan, and transfer of
a firearm between unlicensed parties. Appellant points to fees
totaling less than $50, the necessity of travel in rural areas, and
the existence of government records. Such inconveniences,
however, do not rise to the level of a meaningful constraint on the
right to keep and bear arms.
       Much like the “‘shall-issue’” licensing regimes discussed in
Bruen, section 27545 helps ensure “that those bearing arms in
the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’”
(Bruen, supra, 597 U.S. at p. 38, fn. 9.) Section 27545 “appear[s]
to contain only ‘narrow, objective, and definite standards’ . . . ,”
and there is no indication the statute has been “put toward
abusive ends . . . .” (Ibid.) Section 27545’s modest regulation
comports with the Second Amendment.
                            DISPOSITION
       The judgment is affirmed.
       CERTIFIED FOR PUBLICATION.



                                     CODY, J.

We concur:


      YEGAN, Acting P. J.            BALTODANO, J.




                                 8
                 Matthew G. Guerrero, Judge
                  Barry T. LaBarbara, Judge
           Superior Court County of San Luis Obispo
               ______________________________

      Russell S. Babcock and Arpita Kundu for Defendant and
Appellant.
      Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kristen J. Inberg, and David
Glassman, Deputy Attorneys General, for Plaintiff and
Respondent.




                               9