A Crime of Moral Turpitude in California: Concealing a Concealable Firearm in a Vehicle
This has not been a good week for the proponents of concealed carry. On Monday morning the US Supreme Court published a unanimous decision reversing a judgment of the Massachusetts Supreme Court (Supreme Judicial Council) because the Massachusetts high court decision directly conflicted with its 2008 decision District of Columbia v. Heller (2008).
The Massachusetts high court had given three reasons for upholding the conviction of a homeless women for possessing a stun-gun, which is illegal in that state. Each of these three reasons directly conflicted with the Heller decision. The judgment of the Massachusetts high court was reversed and remanded back to the state for a “do-over.”
The US Supreme Court Heller decision held that:
“[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.””
“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose… For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”
Any decision by a state or Federal court which holds that there is a general right to carry a weapon concealed in public will conflict with the Heller decision and likewise be reversed by the US Supreme Court.
Concealed Carry in Public Never Recognized in California
This is why not a single one of the concealed carry lawsuits pending in the 9th Circuit has filed with the presiding court a notice of the Caetano decision. For years their argument has been that when the US Supreme Court said in the Heller decision that Open Carry perfectly captures the meaning of the Second Amendment right to keep and bear arms and that “prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues” what the US Supreme Court actually meant was the opposite. That states can ban Open Carry in favor of concealed carry.
Concealed carry in public has never been recognized as a right in the state of California. Not before the Heller decision and not after.
While the carrying of a concealed weapon in public has always been considered an evil act, the California courts have not construed the carrying of a concealed weapon in a vehicle to be a crime of moral turpitude.
A crime of moral turpitude is one in which the commission of the crime reveals the offender to be dishonest and showing that the offender has a willingness to do evil or a moral laxity of some kind.
This is an important distinction. A moral man can inadvertently commit an evil act or commit an evil act without intending to do evil. As of Tuesday, the day after the Caetano decision was published, if one is convicted of carrying a concealed weapon in a vehicle then that person has committed a crime of moral turpitude and all that entails.
Although other crimes involving firearms have been held to involve moral turpitude, this is the first time that the California Court of Appeals has held that a violation of California Penal Code section 25400(a)(1) is a crime of moral turpitude. The relevant part of section 25400(a)(1) reads:
(a) A person is guilty of carrying a concealed firearm when
the person does any of the following:
- Carries concealed within any vehicle that is under the person’s control or direction any pistol, revolver, or other firearm capable of being concealed upon the person.
If you are familiar with my opposition to concealed carry, you might conclude that I agree with this decision. You would be wrong.
Had the decision involved a conviction for violating California Penal Code section 25400(a)(2) (concealed carry outside of a vehicle) and section (a)(2) provided exceptions to the prohibition on concealed carry which existed in the 19th Century, such as an exception for travelers while actually on a journey and firearms carried in one’s baggage and/or at night and by persons carrying large sums of money then I could be persuaded that a carrying a concealed weapon under certain circumstances involves moral turpitude.
But that isn’t the law we have in California today. Those 19th Century exceptions to the prohibition on concealed carry, which extended into the early 20th Century in California, are gone.
Reason For Prohibitions on Concealed Carry
A few years back the California Court of Appeals gave a very concise, easy to understand reason for prohibitions on concealed carry:
“The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon. In light of this policy, the question whether a particular weapon was concealed should be considered from the point of view of one approaching the location of the weapon, and the intent of the defendant as to concealment should not be considered, since a defendant’s innocent intent does not make a concealed weapon any more visible.”
Walking down the street, or about town, the prohibition on concealed carry is not only reasonable, it is Constitutional under both the California and Federal Constitutions.
But if one is in a vehicle then it is highly unlikely that others approaching would be able to notice that one is openly carrying a handgun in a belt holster. Under California law (PC 25400(b)) “A firearm carried openly in a belt holster is not concealed within the meaning of this section.”
Moreover, our vehicles should be treated as an extension of our home. We do not have the right to force our way into each other’s vehicles any more than we have a right to force our way into each other’s homes and a prohibition on concealed carry in one’s vehicle is just as irrational as a prohibition on concealed carry in one’s home. Your home is not a “public place” where strangers are free to come and go, neither is your vehicle.
The central component of the Second Amendment right is self-defense. The Framers of the Second Amendment understood that if one carried a concealed weapon and used it in a surprise attack (what today’s proponents of concealed carry call a “tactical/secret advantage”) then that person was guilty of murder, which was not pardonable. However, those who entered into mutual combat openly bearing arms and death resulted, the offense was that of manslaughter, which was pardonable, assuming that one could find a jury to convict in the first place.
While traveling on horseback down a country road, George Washington was once confronted by a man on foot who told Washington that if he tried to pass then he would shoot him. George Washington retrieved his pistol from his saddle bags and handed it to his traveling companion with instructions to shoot the man if he shot him. George Washington went on his way, the man did not shoot him.
George Washington exemplified the morality of the men who wrote the Second Amendment. Had Washington simply drawn his pistol from his saddlebag and shot the man where he stood then he would have committed murder. By displaying his pistol and giving the man fair notice that he was armed, Washington (or in this case his traveling companion) could justifiably shoot and kill the would be assailant had he tried to make good on his threat.
George Washington was an exemplar of morality. The same thing could be said of most of the Founding Fathers. But within a generation, the number of immoral people who carried weapons concealed “for secret advantage and unmanly assassination” increased in far greater numbers than did moral men. States began to enact laws prohibiting the mere carrying of weapons concealed and even concealable firearms regardless of whether or not they were carried concealed. By the decade preceding the start of the Civil War, most states had enacted laws prohibiting the mere carrying of weapons concealed while providing for certain exceptions to the prohibition on concealed carry, such as for travelers while actually on a journey.
Concealing a Concealable Weapon
Today, there are more immoral men in this nation than has ever exited before who brag about their desire to skulk around town carrying a concealed weapon in the hope that an opportunity will present itself, no matter how contrived, for them to use their concealed weapon in a sneak attack.
You don’t have to take my word for it, simply copy and paste “concealed carry” AND “tactical advantage” into Google Search and Google will provide you with links to thousands of websites and videos.
It is naïve to think that the California legislature is going to suddenly repeal its prohibitions on concealed carry or that the California or Federal courts are going to discover a concealed carry right under the Second Amendment which has never existed.
For that matter, the California Supreme Court, in a post Heller decision, has already held that there is no right under the Second Amendment to carry a loaded handgun concealed in public. Eventually, the 9th Circuit Court of Appeals will decide as well. The 9th Circuit however is taking its own sweet time to make its decision, the oldest pending concealed carry appeal was filed on August 24, 2009.
A lot of people out there say that the Second Amendment is their license to carry a concealed weapon in public. If you are one of them then it would behoove you to move to a state where concealed carry is legal and a license is not required.
Carrying a loaded handgun concealed in a vehicle in California is potentially a felony. A felony conviction which results in the lifetime loss of your Second Amendment right.
Now doing so is a crime of moral turpitude as well.