"Shall Issue": The New Wave of Concealed Handgun Permit Laws

I have added a new link to my "Get The Facts" section which leads to the article "Shall Issue: The New Wave of Concealed Handgun Permit Laws". While an older article, published in 1994, it is worth re-reading to get an understanding of the scholarship performed and political issues that overcome in other states that have gone shall-issue as preparation for what we might face in California if certain court cases result in outcomes favorable for carry rights.

California, New York, and Illinois are the last great bastions of restrictive gun laws, but the trends are favorable.  About the only thing that can thwart liberalized gun laws in these states would be the apathy of the citizen, or a few more Supreme Court appointments by President Obama,

We should all work to prevent both.

Shall-Issue CCW in California

Do you ever wonder what would happen in California if this state adopted a shall-issue CCW permit system?  Then all you have to do is read this article about the 10-year anniversary of Michigan's shall-issue permit law, how "blood in the streets" was predicted, and how the dire predictions failed to materialize.

Just as they have failed to materialize in every other state that has gone shall issue.

Some people believe that guns in a public setting are too dangerous to tolerate, but CCW permit holders are overwhelmingly law-abiding and safe.  And guns have utility for self defense.  As a Californian, I would sure like to have the choice to be armed as I go about my daily business. 

But this state does not allow me to do that.

Motion for Summary Judgement Filed in Palmer v. District of Columbia

A great explanation of the plaintiffs case is contained in the Memorandum in Support filed as part of the motion.

This case is very important for gun rights all over the country, but it is especially so for gun owners in California.  This case seeks to establish that "bear" in the 2nd Amendment applies outside the home as well as inside, forcing D.C. to allow some form of carry, either open or concealed, in nonsensitive areas of the city.

Why is this important to California?

The 2nd Amendment already applies to D.C because of the result of the Heller case. A favorable ruling in Palmer would establish a right to bear arms in 2nd Amendment jurisprudence.  While it is true that the 2nd Amendment does not apply to California at this time, a favorable ruling in McDonald v. Chicago is expected to change that in just a few weeks.

California law places great limits on the ability of people to be armed in public.  Loaded open carry of firearms is illegal in public places of incorporated towns and cities.  Unloaded open carry, thanks to AB 1934, will soon be illegal as well.  Issuance of carry concealed weapon (CCW) permits is at the discretion of law enforcement, and DOJ statistics confirm that low issuance rate in urban counties.  All of which conform that the there is no effective right to "bear" arms in California.

Assuming a favorable ruling in McDonald, a favorable ruling in Palmer will give California residents instant standing in Federal court to sue California due to the unconstitutional restraints imposed by the California laws.  The state will be forced to allow some form of carry, even though that requirement will be extremely distasteful to the state government and to urban police departments, especially in Los Angeles, Santa Clara, and San Francisco counties.

The legal ducks are just about all lined up, with only Palmer expected to take a couple of years to get up through the Federal court system.  But if and when Palmer is decided favorably, then we will be treated to the spectacle of the ultra-liberal state of California "swallowing a frog".

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.

CCW in Santa Clara County

I have written before that the CCW law in California is a joke, and that it would be more fair if the state did not issue CCW permits at all. As you can see here, at 170 permits in 2007, Santa Clara county is not the worst, but it is still pretty hard to get a CCW if you are a ordinary person.

One group that can help is Team Billy Jack. While often not popular at in other CCW forums, his site make interesting reading. CCW permits are obtainable, but you have to be willing to go court if necessary. But this is often not necessary, especially when this team is assisting you. If I wanted to get a CCW in California, these guys would be my first stop.

And if you read their occasional blog postings, you will find that Team Billy Jack is preparing some sort of action against the Santa Clara Sheriff's Department. This department has historically been an especially disorganized and corrupt. While nothing is certain yet, it is possible a lawsuit will result, in which case the legal drama should be well worth watching.

Court Challenge to California CCW Law

Alan Gura, lead attorney of last year's landmark Heller case, has been very busy in California. Today he filed a lawsuit (Sykes et al., v. McGuiness et al.) challenging the California CCW law, specifically the "good moral character" and the "good cause" provisions of California PC 12050:

3. Declaratory relief that the “good moral character” and “good cause” provisions of
California Penal Code § 12050 are unconstitutional either on their face and/or as applied to bar applicants who are otherwise legally qualified to possess firearms and who assert self-defense as their “good cause” for seeking a handgun carry permit;

Whatever else one might say about Mr. Gura, he does not lack for courage. I do not know what chances there are for this law to be declared unconstitutional, but these two cases in California will be fascinating to watch over the comming months.

I am including a special link list on my sidebar to track events in this case.

AB 357 - CCW Reform Bill Failed in Committee

AB 357, the CCW reform bill Sponsors by Assemblyman Knight, came up for a hearing in the Public Safety Committee, and failed to pass. While reconsideration was ranted, it would seem that this bill is dead, unless something changes. Here is the current status of the bill:

 CURRENT BILL STATUS


MEASURE :  A.B. No. 357
AUTHOR(S) :  Knight.
TOPIC :  Firearms: license to carry concealed firearm.
HOUSE LOCATION :  ASM
+LAST AMENDED DATE  :  04/13/2009


TYPE OF BILL :
            Active
            Non-Urgency
            Non-Appropriations
            Majority Vote Required
            State-Mandated Local Program
            Fiscal
            Non-Tax Levy

LAST HIST. ACT. DATE:  04/21/2009
LAST HIST. ACTION   :  In committee:  Set second hearing.
 Failed passage. Reconsideration granted.
COMM. LOCATION :  ASM PUBLIC SAFETY

TITLE :  An act to amend Section 12050 of the Penal Code,
relating to firearms.

It would seem that AB 357 is dead for this session.

Great - and sad - article.

I found this article about a very sad, but all too typical situation on a new blog: Big Hollywood.

I'm Against Guns And Violence Unfortunately Reality Has Intruded On My Delusional Paradise.

My first reaction was to think about how much I loathe southern California, and my second was to remind myself that these stalking situations happen anywhere. It also reminded me that there is a funny little exception to the prohibition to carrying a concealed weapon.

People that have a restraining order against an individual can carry concealed weapons in the state. No other approval is necessary. I think they have to carry a copy of the order to prove to any officer that stops them, but it is legal.

California gun law is curious mixture of strict prohibitions and occasional freedoms.

AB357 - Update: April 14 Hearing Canceled

Here is an update on Assembly Bill 357:

CURRENT BILL STATUS


MEASURE :  A.B. No. 357
AUTHOR(S) :  Knight.
TOPIC :  Firearms: license to carry concealed firearm.
HOUSE LOCATION :  ASM

TYPE OF BILL :
          Active
          Non-Urgency
          Non-Appropriations
          Majority Vote Required
          State-Mandated Local Program
          Fiscal
          Non-Tax Levy

LAST HIST. ACT. DATE:  03/09/2009
LAST HIST. ACTION   :  Referred to Com. on  PUB. S.
COMM. LOCATION :  ASM PUBLIC SAFETY
COMM. ACTION DATE   :  04/14/2009
COMM. ACTION :  Set, first hearing.  Hearing cancelled at
the request of
author.
HEARING DATE :  04/14/2009

TITLE :  An act to amend Section 12050 of the Penal Code,
relating to firearms.

So, it looks to me like the hearing has been canceled at the request of the author, Assemblyman Knight. However, as an anonymous comment on my previous article AB 357 - California CCW Reform? suggested, we should contact the members of the Committee on Public Safety indicating our support of this bill. A new hearing may be scheduled for AB 357 at any time, so let's get our support on record now.

Remember, when you write to a representative, be sure to include your full, real name, address, and telephone number. Representatives will only pay attention to California residents, so if the address is not included, the letter or e-mail will not be counted.

AB 1167 - CCW Reciprocity for California

Assembly Member Jim Neilsen (R - 2nd District) has introduced a bill to add Section 12058 to the Penal Code that would direct the Department of Justice to enter into reciprocity agreement with other states to honor California CCW permits.

The text of the bill is short:

12058. (a) Persons holding a valid permit or license to carry a
concealed handgun from any state or a political subdivision of a
state shall be deemed a licensee under subparagraph (A) of paragraph
(1) of subdivision (a) of Section 12050.
(b) The Department of Justice shall enter into reciprocity
agreements with all other states that have the legal authority to
enter into those agreements so that licensees under Section 12050 may
carry firearms in those states pursuant to the conditions imposed by
Section 12050. The department shall each month maintain and publish
a list of those states with which this state has established
reciprocity.

Clearly, holders of permits issued in other states would have concealed carry privileges in this state if this bill becomes law.

The white elephant in the room is that some states shall issue concealed weapon permits to residents of other states, including California. Most notable in this regard is Utah, a popular state for concealed carry permits because of Utahs wide reciprocity agreements.

The effect of this bill would be to circumvent Section 12050 of the Penal Code, so of course AB 1167 has no chance of passing. California LEO agencies simply hate the idea of citizens with concealed weapons, despite the favorable history of such laws in other states.

AB 357 - California CCW Reform?

In a previous post I told everyone to not hold their breath waiting for reform of California's CCW law. A bill introduced in the California Assembly may change that prediction. Here are the facts as I understand them. First, the text of the legislation, which amends Section 12050 of the Penal Code as follows:

SECTION 1. Section 12050 of the Penal Code is amended to read:
12050. (a) (1) (A) The sheriff of a county, upon proof that the
person applying is of good moral character , that good cause
exists for the issuance, and that the person applying
satisfies any one of the conditions specified in subparagraph (D) and
has completed a course of training as described in subparagraph (E),
may shall issue to that person a
license to carry a pistol, revolver, or other firearm capable of
being concealed upon the person in either one of the following
formats:
(i) A license to carry concealed a pistol, revolver, or other
firearm capable of being concealed upon the person.
(ii) Where the population of the county is less than 200,000
persons according to the most recent federal decennial census, a
license to carry loaded and exposed in that county a pistol,
revolver, or other firearm capable of being concealed upon the
person.

That is all. No other changes are proposed in this bill that I could find.

My question is this: do these incredibly modest changes to the text substantially change the status quo with CCW issuance in California? I am not a lawyer, not am I a legislator, so the changes that to me seem crucial, may in fact be inconsequential. If this bill passes and is signed into law, will it change the how CCW permits are issued, or will the agencies be able to wiggle around what appears to be a big change?

Here is the current status for the bill:

CURRENT BILL STATUS


MEASURE : A.B. No. 357
AUTHOR(S) : Knight.
TOPIC : Firearms: license to carry concealed firearm.
HOUSE LOCATION : ASM

TYPE OF BILL :
Active
Non-Urgency
Non-Appropriations
Majority Vote Required
State-Mandated Local Program
Fiscal
Non-Tax Levy

LAST HIST. ACT. DATE: 02/19/2009
LAST HIST. ACTION : Read first time. To print.

TITLE : An act to amend Section 12050 of the Penal Code,
relating to firearms.

This bill was introduced by Assembly Member Steve Knight, whose office is located in Palmdale, CA, a southern California city in a generally conservative region, which should be no surprise.

So, what is next? I would sent Assemblyman Knight a message indicating your support of his bill. And I would send a message to your own Assembly member also indicating your support for this bill. As can be seen in the history, this bil has not even been sent to a committee for initial consideration. Perhaps out support could move it along.