Is It Unlawful for Persons Not Born in The US to Carry a Handgun?

320

1923 – California says Yes!

In 1923, the state of California passed a law prohibiting persons not born in the United States from carrying a handgun. The same law required a permit to carry a handgun concealed in public without a permit.

Gevino Rameriz, a foreign born citizen of the state of California, not being able to even own a handgun, let alone carry one concealed without a permit, was convicted of violating the new law.

The California Supreme Court in 1924 heard his case and concluded that the law was constitutional. Mr. Rameriz raised two defenses.

1. The California law violated his Second Amendment Right under the US Constitution.

2. The California law violated his right to Property under Article 1, Section 17 of the California Constitution.

Curiously, Mr. Rameriz did not raise as a defense Article 1, Section 1 of the California Constitution – The Right to Self Defense. Perhaps his attorney thought the Second Amendment self-defense claim was sufficient, we’ll never know.

Article 1, Section 1 of the California Constitution has stated an enumerated right to self-defense since 1848.

The California Supreme Court never addressed his right to property claim. The Court concluded that the Second Amendment applied only to militias and only to the Federal Government.

In 2008, the United States Supreme Court held that the Second Amendment guarantees the right to openly carry a weapon, particularly a loaded handgun, for the purpose of self-defense.

In 2010, the United States Supreme Court held that the Second Amendment applies to all states and local governments.

These decisions came about 86 years too late for Mr. Rameriz, he was sentenced to five years in prison. 1972 – Oops! We Made A Mistake, Our Bad! In 1972, the California Court of Appeals held that the section of the 1923 law which made it a crime for persons not born in the United States to carry a handgun was unconstitutional (under the 1923 law, foreign born persons were not prevented from carrying rifles and shotguns in public).

In 1974, the California Legislature repealed that section of the law which made it a crime for foreign born persons to Openly Carry a handgun in public.

2011 – California Bans Everyone From Openly Carrying A Handgun In 2011, the California Legislature passed a bill which makes it a crime to Openly Carry an unloaded handgun in public. It had become a crime to Openly Carry a Loaded firearm in public back in 1967.

Well not exactly, the 1967 law was intended to disarm the Black Panther Party. In May of 1967, the Black Panthers had marched into the state Capitol openly bearing arms in protest of the law. The bill flew through the state legislature and was signed into law in July of 1967. It went into effect immediately.

The ban on openly carrying an unloaded handgun does not apply to a wide variety of special interests such as bill collectors, claims adjusters, bankers…you know, the special interests who run this state.

Unlike Mr. Rameriz in 1924, the Nichols case is also arguing that California’s ban on openly carrying a loaded handgun is a violation of Article 1, Section 1 of the California Constitution which states that all persons have a right to self-defense.

If the Federal District Court judge agrees that the United States Supreme Court meant what it said about the Second Amendment, or that the right to self-defense under the California Constitution is meaningless if one is denied the means by which he may defend himself, then the judge will issue the injunction by late Spring.

If not, then the 9th Circuit Court of Appeals will deliver its opinion around the end of the year.

Given that the 9th Circuit Court of Appeals has already decided that the US Supreme Court meant what it said about the lawful manner of Carry (Open Carry) and that convicted felons do not have a right to carry a gun and that states may ban dangerous and unusual weapons such as hand-grenades and landmines; it is unlikely that the 9th Circuit will conclude that all of the restrictions the High Court said in its 2008 decision applies to California but not the core right itself – To openly carry a loaded firearm, particularly a handgun, for the purpose of self-defense.

In the unlikely event that the 9th Circuit Court of Appeals ducks the question, the United States Supreme Court will have the opportunity to say whether or not it meant what it said about the Second Amendment.

The defendants in the Federal lawsuit are Governor Brown, Attorney General Kamala Harris, the City of Redondo Beach, the Redondo Beach Police Department and the Police Chief of Redondo Beach.

Attorney General Harris has stated that the US Supreme Court “wrongly decided” on the meaning of the Second Amendment. The City Attorney for Redondo Beach has said that California law does not apply to his city. The position of the police department is that neither state nor Federal laws apply to them.

It will be interesting to hear the defendants defend these claims in open court.