Saturday, January 16, 2010

Constitutional Challenge to California CCW Law

A very interesting lawsuit was filed in October challenging the constitutionality of the Carry Concealed Weapon law in California. Hat tip to Of Arms and the Law for posting the decision of the Judge Gonzales denying the defendants motion to dismiss.

Reading the original complaint, the plaintiff was denied issue of a CCW permit primarily because the Sheriff determined that the plaintiff did not have "good cause" and was not a permanent resident of San Diego County. The really interesting part is the reasoning that since other forms of carrying a weapon are illegal in California, i.e. loaded open carry, then the "good cause" and "good moral character" requirements of the CCW law used to deny a applicant are unconstitutional because a person has no other means to excercise their Second Amendment right to bear arms.
37. Defendants has deprived Plaintiff of his right to carry a handgun for self defense purposes, which is guaranteed by the Second Amendment, because there is a general ban on the exposed carrying of loaded handguns, and because of subjective "good cause" policy
All of the plaintiffs complaint has survived the defendants motion to dismiss, and Judge Gonzalez's decision makes interesting reading. The constitutionality of the CCW law is challenged by the following logic. From decision on the motion to dismiss:

The Supreme Court’s decision in Heller made it clear–for the first time–that the Second Amendment guarantees “the individual right to possess and carry weapons in case of confrontation.” 128 S. Ct. at 2797. It also made clear that this right is not unlimited. Id. at 2816-17.
So, while citizens have a right to carry arms, that right may be subject to regulation. But Judge Gonzalez denies that the California CCW law is presumptively constitutional because in other states where concealed weapons prohibitions have been determined to be constitutional, open carrying of weapons allowed the exercise of one's Second Amendment rights:

Thus, just like in Chandler and Nunn, but unlike California, there is a ready alternative available to the affected individuals–the ability to carry weapons openly if they cannot obtain a concealed weapon’s permit.
In the context of California gun laws, this kind of legal reasoning has the potential to effect real change. The CCW law may be found to be unconstitutional since there is no provision for loaded open carry in the state. Or, the state may have to change the loaded open carry law in order to preserve their CCW law and policies commonly applied in urban counties.

I am not a lawyer, and I do not know if this case is at all similar to the 14th Amendment cases filed for plaintiffs is the assistance of Team Billy Jack, but if this case goes to trial and the court finds for the plaintiff, California's CCW law may be struck down.

My prediction: San Diego County Sheriffs Department will settle the case and issue the permit in order to make this case go away.

UPDATE: corrected typo in title.

2 comments:

Chris P said...

Very interesting suit. I have recently taken interest in this issue, and believe that the current CCW laws are inherently flawed. If CA law holds the county sheriff responsible for determining "good cause," it's basically allowing the county sheriff to interpret the SUPREME COURT's ruling on HELLER. I don't know if there are ANY county sheriffs qualified to do that.

As stated in the decision on the motion, the county "must at the very least demonstrate that it is necessary to further an important
governmental interest." You're absolutely right, the law must be changed to keep "good cause" from infringing upon the Supreme Court's interpretation of the 2nd Amendment.

peter brown said...

http://www.mercurynews.com/breaking-news/ci_16850979?nclick_check=1