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CA Law Banning Unloaded Firearms in Public Faces Legal Challenge in Federal Court

On October 9th, California Governor Jerry Brown signed a bill into law which makes it a criminal offense to openly carry an unloaded handgun. A similar law which passed in 1967 made it a criminal offense to openly carry a loaded firearm although it was not illegal to carry ammunition and load the firearm when one was in "grave, immediate danger."

By signing Assembly Bill AB 144, Governor Brown has created a mirror image of a law in Washington D.C., which was held to be unconstitutional by the United States Supreme Court in 2008. Two years later the Supreme Court held that the decision applies to all states and local governments as well as all Federal areas.

Contrary to what is widely reported, the District of Columbia firearms ordinance did not technically ban one from having a loaded handgun in his home, the city required a permit to do so; but refused to issue the permits.

California does not even provide for the issuance of licenses to openly carry a loaded firearm in counties with a population of 200,000 or more persons. And even in these rural counties the issuance of the license is left solely to the discretion of the issuing authority; the police chief of the city of which one resides or his county sheriff. One must be a resident of the county in which he applies and the license is valid only in that county; if one is lucky enough to be issued a license in the first place.

For 94.4% of Californians who live in a county with 200,000 or more persons, California law simply does not provide for a license to openly carry a loaded firearm. In this sense, California's laws are more restrictive than the D.C., law which was struck down as unconstitutional.

The decision by the US Supreme Court held that the Second Amendment guarantees the right of the individual to openly carry a loaded firearm for the purpose of self-defense so long as one is not a prohibited person; a convicted felon or mentally ill.

The court also stated that this right applies to the home and to public places except for certain locations the court deemed "sensitive" such as schools and government buildings.

Opponents of the Second Amendment claim that this decision applies only to one's home despite the fact that in the 64 page opinion by the court, the words "only" and "home" never appear in the same sentence. It is true that the man who brought the lawsuit, Richard Heller, only asked for a license to keep a handgun in his home. But there was no need for him to ask the court for a license to openly carry a loaded handgun in public; as a special police officer in the District of Columbia he was already licensed to do so.

Regardless, these opponents have made that argument both in the 9th Circuit Court of Appeals and in two of California's lower Federal District courts. Not only have these arguments been rejected by the courts, this past May the Appellate Court created a legal test to decide what level of judicial scrutiny would be applied to gun laws. If a gun law presented a "substantial burden" to the right of the individual to keep and bear arms then it was subject to heightened scrutiny. If not then it was subject to a lesser scrutiny meaning the law would likely be upheld.

By completely banning openly carried handguns, loaded or unloaded, anyone seeking to overturn California's 1967 ban on openly carrying a loaded firearm no longer has to make the legal argument that an unloaded handgun presents a "substantial burden." Openly carrying a handgun, loaded or unloaded, is now a criminal offense. The US Supreme Court has already held that in cases such as this, judges need not determine what level of judicial scrutiny is required.

The only question for the Court to decide is whether or not the United States Supreme Court meant what it said in its landmark decision in 2008; either the right to openly carry a weapon for the purpose of self-defense applies outside of the home, except in sensitive places such as schools and government buildings, or it does not.

On December 15th, the 220th Anniversary of the Bill of Rights, a Federal Civil Rights lawsuit will be filed in the Federal Central District Court for California seeking an injunction against the California law which makes it a crime to openly carry a loaded firearm for the purpose of self-defense; Penal Code section 12031.

The plaintiff in the case is Charles Nichols, President of a California Gun Rights group California Right to Carry. The lawsuit is being brought by Mr. Nichols as an individual and not by any organization.

Funds for the lawsuit are being raised by Open Carry advocates across the state:

California Right To Carry

Riverside Open Carry Club

Inland Empire Open Carry

California Carry

The2A

Orange County Open Carry

OpenCarryClub.com

Bay Area Open Carry Movement

California Open Carry Movement