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Cal. Penal Code §§ 25400(A)(1), §§ 25850(A), and 25850(C)(6) are likely invalid under US Supreme Court decision in BRUEN which makes public carrying of firearms presumptively legal

The United States Supreme Court decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen (2022) 142 S. Ct. 2111 renders possession of a concealed firearm and criminalizing carrying a loaded firearm on your person or in a vehicle in any public place or on a public street and (California Penal Code sections 25400(a) and 25850(a)) unconstitutional under the Second and Fourteenth Amendments of the U.S. Constitution.

§ 25400(a)(1) and 25850(a) fail Bruen’s Second Amendment test.

The Bruen court reiterated the proper standard for applying the Second Amendment: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. The test “requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”

Second Amendment and right to self defense

Cal. Penal Code §§ 25400(a)(1), §§ 25850(a), and 25850(c)(6) impermissibly restrict the right of self-defense in the Second Amendment’s text as interpreted by Bruen.

The Second Amendment states that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The Bruen court confirmed that “individual self-defense is the central component of the Second Amendment right.” The Court’s identification of self-defense as the central component of the Second Amendment led it to specifically hold “that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”

The Court noted that “[n]othing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms.” The Court said “[t]o confine the right to ‘bear’ arms to the home would nullify half of the Second Amendment’s operative protections.” The operative protections are rooted in the “individual right to possess and carry weapons in case of confrontation,” which the Court  noted “can surely take place outside the home.”

Cal. Penal Code §25850(a) (carrying a loaded firearm in a public place)  when  not the registered owner of the firearm (PC §§25850(c)(6)). required an individual to have obtained a concealed carry permit for the gun that they are charged with illegally possessing.

Gun owners can avoid criminal liability under § 25400 only by obtaining a concealed carry permit. See Cal. Penal Code § 25655 (“Section 25400 does not apply to…a person who is authorized to carry [a] weapon in a concealed manner…”).

Sections 25850(a) and 25400(a)(1) are presumably unconstitutional under Bruen because they impermissibly restrict individual self-defense, the central component of the Second Amendment.

California’s concealed carry licensing scheme contains a “good cause” provision similar to the one struck down by Bruen. Cal. Penal Code § 26150(a)(2) (“[w]hen a person applies for a license to carry a…firearm capable of being concealed upon the person, the sheriff of a county may issue a license to that person upon proof [that] [g]ood cause exists for issuance of the license”).

On  June 24, 2022, the California Attorney General issued a legal alert to all California District Attorneys  notifying them that “the Bruen majority specifically identifies California as one of six States that has an analogue to New York’s ‘proper cause’ standard.

The Attorney General’s view is that the Court’s decision renders California’s ‘good cause’ standard to secure a permit to carry a concealed weapon in most public places unconstitutional.” The AG’s directive states that Bruen should not affect the other public-carry licensing requirements of good moral character, residency or business in the county of licensing, and completion of firearms training.

Under §25400(a), public carry within a vehicle is presumptively illegal. Under §25850(a), public carry on the person or in a vehicle is presumptively illegal. Those sections subject anybody carrying a firearm in a public place or in a car to prosecution. These general prohibitions are  contrary to Bruen, which ruled public carry to be presumptively legal: The “Second Amendment and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” Bruen, 142 S. Ct. at 2122. “The Second Amendment’s plain text … presumptively guarantees [the] right to ‘bear’ arms in public for self-defense.” Id. at 2135.  The  licensing scheme is a prior restraint on a fundamental right.

People v. Diaz, No. 21FE019850 (Superior Court of Sacramento, July 27, 2022.) ruled that PC §§ 25400(a)(3)  and 25850(a) are unconstitutional, based on Bruen. The Sacramento court took note of the AG’s position and also noted that “[t]he Bruen unequivocally holds that public carry is presumptively legal. States may regulate public carry, but the regulation must be rooted in our Nation’s history of gun regulation as interpreted by Bruen.”

No historical exists for restrictions analogous to those imposed by Cal. Penal Code § 25400(a)(1) or §25850(a)

The Bruen court found no tradition of prohibitions on public carry in the historical record.

The Bruen majority identified certain public settings, or “sensitive places,” where complete prohibitions on the public carry of firearms would be constitutionally permissible.  The Court’s list of sensitive places, which included legislative assemblies, polling places, and courthouses, did not name any methods of transportation, and therefore this carveout does not apply to § 25400(a)(1), which deals exclusively with vehicles, or §25850(a), which includes vehicles.

§ 25400(a) AND 25850(a) cannot withstand scrutiny under Bruen’s Second Amendment Test.

 Gun owners can avoid criminal liability under § 25400 only by obtaining a concealed carry permit. See Cal. Penal Code § 25655 (“Section 25400 does not apply to…a person who is authorized to carry [a] weapon in a concealed manner…”).

Cal. Penal Code §§ 25850(a), 25850(c)(6), 11106, 25400 and 25655 are unconstitutional under Bruen because they impermissibly restrict individual self-defense, the central component of the Second Amendment. Under §25850(c)(6), a gun owner must be the registered owner pursuant to §11106. That section directs owners to obtain licenses under §§ 26150, 26155, 26170 or 26215. These are all concealed carry permitting sections. The gun owners can only avoid criminal liability under §§ 25850(a) and 25400(a)(1) by obtaining a concealed carry permit. However, these sections contain a “good cause” provision similar to the one struck down by Bruen. See Cal. Penal Code § 26150(a)(2) (“When a person applies for a license to carry a…firearm capable of being concealed upon the person, the sheriff of a county may issue a license to that person upon proof [that] [g]ood cause exists for issuance of the license”).

The government has the burden under Bruen to “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

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