AB 144, in contrast, makes the open carry of an unloaded handgun in a public place a crime, a misdemeanor punishable by one year in jail and a fine that cannot exceed $1000. To get around the problems that AB 1934 might have caused, AB 144 specifies a very long list of occupational exceptions, allowing a large number of people to open carry handguns. Only ordinary citizens and criminals are, theoretically, prohibited.
A reader of Left Coast Conservative, asked me if I knew about AB 144, and if I thought that its passage into law would help the Peruta v. County of San Diego prevail. Chris P wrote:
BTW, did you hear about the new attempt to ban open carry (California AB 144)? I think this is gonna get interesting. I'm not sure how I feel about the open carry movement yet, but it was my understanding that the San Diego lawsuit regarding concealed carry had a lot to do with the open carry law. Anyway, I thought the ruling was that since California law allowed unloaded/open carry, self defense was not "good cause" to concealed carry. You think this will be significant? I'd like to hear your take on it.This is, I think the part of the decision that gives Chris P his hopes that AB 144 might actually advance carry rights in California:
Accordingly, Defendant argues that concealed carry pursuant to Penal Code section 12050 is not the sole outlet for carrying a handgun for self defense. Defendant highlights other California provisions that permit unloaded open carry and loaded open carry if the individual is in immediate grave danger.In other words, the Defendant's administration of the CCW policy is not subject to strict scrutiny because persons can avail themselves of other means to carry weapons for self defense. This inspires me to re-read the decision granting summary judgment to the defendant. What I found was this passage, on page 11:
Neither party has cited, and the Court is not aware of, a case in which a court has employed strict scrutiny to regulations that do not touch on the “core” Second Amendment right: possession in the home.9 If it exists, the right to carry a loaded handgun in public cannot be subject to a more rigorous level of judicial scrutiny than the “core right” to possess firearms in the home for self-defense. See Heller, 128 S. Ct. at 2717 (focusing on the home as the place “where the need for defense of self, family, and property is most acute”); McDonald, 130 S. Ct. at 3036 (quoting same). If anything, the opposite is true; unlike possession in the home, carrying a concealed firearm in public presents a “recognized threat to public order” and “poses an imminent threat to public safety.” People v. Yarbrough, 169 Cal. App. 4th 303, 313-14 (Cal. Ct. App. 2010) (quotation marks and citations omitted); see also McDonald, 130 S. Ct. at 3105 (Stevens, J., dissenting) (“firearms kept inside the home generally pose a lesser threat to public welfare as compared to firearms taken outside . . .”). At most, Defendant’s policy is subject to intermediate scrutiny.
So the first problem that Peruta has is that the judge does not recognize “carry” to be the core right protected by the 2nd Amendment, so intermediate scrutiny is appropriate to judge the validity of the Defendant's policy. Once this is established the reasoning to grant the Defendant's motion is swift:
Accordingly, Defendant argues that concealed carry pursuant to Penal Code section 12050 is not the sole outlet for carrying a handgun for self defense. Defendant highlights other California provisions that permit unloaded open carry and loaded open carry if the individual is in immediate grave danger.
So, if AB144 is passed, the alternate means is no longer available, so that should open up the CCW policy for litigation, right? Perhaps not. Even though cases cited in Heller (State v. Chandler, Nunn v. State, Andrews v. State, State v. Reid), allowed concealed weapons bans because open carry was available, so the 2nd Amendment right was not eliminated, passage and adoption of AB 144 will not eliminate the ability of citizens to carry weapons. CCW permits will still be available: apply and you may be issued a CCW permit.
Arbitrary and capricious administration of a CCW policy by a Sheriff will not be cited as unconstitutional until and unless “carry” is ruled to be a “core right” denoted by the 2nd Amendment. Once “carry” is recognized as a core right, then AB 144 may be used to prevent arbitrary and capricious implementation of CCW policies in Califronia.
For more information about current litigation, please refer to the Calguns Foundation Litigation Past and Present page, your one-stop-shop for guns rights litigation information.
UPDATE 2/19/2011:
Maybe I am wrong about what effect passage of AB 144 might have on litigation to liberalize CCW policies. Take a look at this passage from the Pasadena Weekly:
If Chuck Michel thinks AB 144 might bust things open, I am inclined to take him at his word.Here in California, where a bill to prohibit gun owners from publicly carrying unloaded weapons in plain sight is set for debate in the state Assembly, gun rights advocates also doubt that ability. They say the bill, sponsored by Assemblyman Anthony Portantino, D-La Cañada Flintridge, would instead force jurisdictions to issue concealed weapons permits to practically all comers, given recent court rulings affirming the people’s right to bear arms.“I’m not sure they appreciate the legal can of worms they are opening here,” said Chuck Michel, spokesman for the California Rifle & Pistol Association.
No comments:
Post a Comment