New Gun Laws in California Would be in Supreme Court’s Crosshairs

Photo courtesy of krazydad/jbum, Flickr.

Photo courtesy of krazydad/jbum, Flickr.

Gun owners in California recently woke up to the news that the California Senate had passed a stack of bills putting new restrictions on the use of guns.

If they all become law, you’ll need a license to sell ammunition and a background check to buy it, magazines that hold more than 10 rounds will be illegal, more guns will be classified as “assault weapons,” homemade guns will need state serial numbers, and it will be a crime to loan a gun to anyone who isn’t a family member or a licensed hunter.

Are those proposed laws constitutional?

The Supreme Court said in 2008, in District of Columbia v. Heller, that Americans have the right as individuals to keep and bear arms. The court struck down Washington, D.C.’s, “absolute prohibition of handguns held and used for self-defense in the home.”

But the Heller decision left many questions unanswered, starting with whether the Second Amendment was binding on the 50 states as well as on the District of Columbia.

When the first 10 amendments to the Constitution were ratified in 1791, nobody thought they applied to the states. Chief Justice John Marshall wrote in 1833 that if Congress had intended the Bill of Rights to bind the states, “they would have declared this purpose in plain and intelligible language.”

That understanding still prevailed at the start of the 20th century, as bank robber “Gunplay” Maxwell discovered. In 1900 he complained that Utah had denied his Sixth Amendment right to trial by jury, but the U.S. Supreme Court said the first 10 amendments “were not intended to and did not have any effect upon the powers of the respective states,” adding, “This has been many times decided.”

The Supreme Court never said the whole Bill of Rights applies to the states. Instead, there was a gradual process of selectively declaring particular rights to be “fundamental” to liberty. That makes them apply to the states through the Fourteenth Amendment, which says the states can’t deny liberty to any person without due process of law.

“Gunplay” Maxwell was ahead of his time. The Supreme Court decided that trial by jury was “fundamental” to liberty in 1968.

In 2010, two years after the Heller decision, the right to keep and bear arms was declared “fundamental” in McDonald v. Chicago.

This gradual “incorporation” of the Bill of Rights into the Fourteenth Amendment has been going on for about 90 years and has silently transferred power from state legislatures to federal courts. For example, in 2011 the Supreme Court struck down a California law that banned the sale of violent video games to minors. The justices said California had not shown the court a “compelling” reason to have a law that infringes the First Amendment rights of video game creators.

Soon, California may have to show the court a “compelling” reason for laws that infringe the Second Amendment rights of gun owners.

For 90 years, the justices have invented balancing tests and “scrutiny” levels to guide decisions in these cases, but it remains what Justice Felix Frankfurter called it in 1947: “merely subjective.”

Does California have a “compelling” reason to require background checks for ammunition purchases? One justice may think so, but another may find the reason “only rational.” Five votes for “compelling” would uphold such a law, while five “only rationals” would be enough to strike it down.

Over the next decade, Second Amendment rights will be profoundly affected by the personal values of the justices appointed by the president who’s elected this November.

The NRA made an early endorsement and started the fight before June.

Threats of Increased Gun Control Result in Increased Statewide Sales

GunCalifornia’s experience with gun control and gun sales has created an ironic situation with significant implications for policy: Tighter regulations have increased along with firearms purchases.

The phenomenon cuts both for and against the prevailing party platforms on the political Left and Right. “The increase in handgun sales coincides with a dip in gun-related crimes,” for example, as the San Francisco Chronicle reported, lending support to conservatives’ insistence that most gun owners have no interest in breaking the law and no greater inclination toward violence. “The number of aggravated assaults in California involving a firearm dropped from more than 23,000 in 2005 to less than 16,000 last year,” the paper added. “The number of gun-related murders fell from 1,845 to 1,169 over the same time period.”

Growing unease

On the other hand, the statistics also reinforce the liberal contention that even very strict controls on guns can leave the Second Amendment intact, preserving citizens’ sport shooting and self-defense interests. In a further irony, however, the data indicates that robust gun sales have been boosted by a widespread perception among current gun owners that access to weaponry is being progressively sealed off.  “While more handguns are being sold in California, it doesn’t necessarily mean there are more gun owners. Some researchers have found the number of American households that own a firearm is at a 40-year low, even though transactions are climbing. This suggests a smaller group of people is collecting more weapons,” the Chronicle surmised.

The state’s 2014 ban on openly carrying unloaded guns, going into effect at the beginning of 2016, was “not expected to slow the growth in gun sales,” as SFist noted. Other new rules taking effect on the first of the year required that “pellet, BB, and airsoft guns must be brightly colored, to help distinguish them,” and that “concealed carry permit holders will no longer be allowed to bring their weapons onto school grounds or college campuses,” as the Christian Science Monitor reported.

But another impending law has raised the ire of a relatively broad group of activists and interest groups. January 1 triggers legislation, written and passed in the aftermath of the Isla Vista shooting, that “gives the police or family members the option to petition the courts to seize the guns and ammunition of someone they think poses a threat,” as the Guardian observed — “the first law of its kind in the country.”

Diminishing returns?

But, the paper noted, this so-called gun violence restraining order “has raised concerns from lawmakers and pro-gun groups about civil liberties and questions about how effective it will really be.” The now-customary wave of litigation set to emerge from the uncertain legal landscape was expected to refine the law’s implications, which legislators in Sacramento haggled over on the way to passage. “It will become clearer after petitions begin to flow through the California courts what kind of evidence, minimally, could result in the issuance of a temporary firearms restraining order,” according to the Guardian.

Other new restrictions on guns proposed this election season have raised further questions. While Lt. Gov. Gavin Newsom has begun campaigning on a policy that “would prohibit their possession and require anyone who has them to sell to a licensed firearm dealer, transfer them out of state or relinquish them to law enforcement for disposal,” as the Sacramento Bee reported, Gov. Jerry Brown has instead played up the limits of California restrictions that aren’t mirrored or reinforced by neighboring states and the federal government. “We have among the strictest gun control regulations in the country, and it doesn’t do us that much good if other states and the federal government is basically passive in this effort to keep guns out of the wrong hands,” Brown told CNN, according to the Bee.

Originally published by CalWatchdog.com

California’s Gun Sales Break Records

As reported by the Contra Costa Times:

Amid a new round of debate over gun control, Californians have already bought a record number of firearms in 2015, including major spikes in sales on Black Friday and the days after the San Bernardino attacks, an analysis of new federal and state data show.

Firearms purchases in California triggered 1.51 million federal background checks in the first 11 months of the year, breaking the previous annual record of 1.47 million set last year.

And December typically brings even more firearms purchases than any other month, whether for holiday gifts or getting ahead of new gun restrictions the new year might bring.

The gun dealers’ holiday season got off to a rousing start. State data requested by this newspaper show that sales transactions spiked on …

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Gun Rights Lawsuit Targets L.A.’s Prohibition of High-Capacity Magazines

IMG_0383With gun rights and regulations emerging as a hot-button issue in California politics, the city of Los Angeles has provoked a high-profile lawsuit against a recent prohibition on so-called high-capacity magazines.

“This summer, the City Council banned possession of magazines that hold more than 10 rounds of ammunition,” the Associated Press recalled. “Owners have until Nov. 18 to sell the magazines, take them out of the city or surrender them to police.” Failure to abide by the new law would result in a misdemeanor. The July ban came in the wake of reports issued by the L.A. city attorney, accordingto Courthouse News; it went into effect last month.

Bringing suit

The response from law enforcement and gun enthusiasts has been swift. Thirty sheriffs statewide brought suit against the ban, joined by the California Reserve Peace Officers Association and the Golden State’s National Rifle Association affiliate, the California Rifle and Pistol Association, noted the Los Angeles Daily News. “Since 2000, California has outlawed manufacturing or selling high-capacity magazines, but Los Angeles’ ordinance goes further, making it illegal to possess them,” the paper added.

That statewide rule factored into the logic driving the lawsuit. According to the plaintiffs, “when Los Angeles banned gun magazines that hold more than 10 rounds in July, it ‘land locked’ gun owners who already had the legal weapons,” Courthouse News reported:

“Lead plaintiff Shasta County Sheriff Thomas Bosenko says that California has regulated the sale, possession and use of high-capacity magazines — those that hold more than 10 bullets — since Jan. 1, 2000. High-capacity magazines legally acquired before that date were exempt from the state’s ‘regulatory scheme’ and grandfathered in, according to the Oct. 23 lawsuit.”

But some legal analysts have already suggested that the lawsuit could be in vain. “Cities including Sunnyvale and San Francisco also ban possession of high-capacity magazines and have successfully fended off lawsuits from the NRA,” the Daily News observed.

A broader battle

At the same time, the Los Angeles ban follows on the heels of a similar law in San Francisco, whose former mayor and now Lt. Gov. Gavin Newsom has vowed to extend the prohibition across all of California. “He proposes a statewide ban on possession — not just sales — of high-capacity ammunition magazines holding more than 10 rounds,” as George Skelton noted in the Los Angeles Times. In an interview with Skelton, Newsom said that his plan to circumvent the Legislature by putting the ban on the ballot illustrated “why direct democracy was conceived.” But he remained “vague,” Skelton suggested, about how to enforce the proposed rules, which would require owners “to sell them to a licensed dealer, take them out of state or turn them over to law enforcement.”

Although the plaintiffs challenging L.A.’s law have warned of a patchwork quilt of prohibitions too hard for gun owners to discern and obey, that kind of regime has emerged as the likely alternative to Newsom-style regulations covering the whole of California. Gov. Jerry Brown, known as a relative skeptic toward ever-stricter gun control, has effectively become the only officeholder capable of derailing new statewide rules cracking down on guns or ammunition.

In 2013, on the heels of another threatened lawsuit by the NRA, Brown rejected what would have been among the toughest of state laws. “Brown vetoed Senate Bill 374, which would have banned semi-automatic rifles with detachable magazines and required firearm owners to register even low-capacity rifles as assault weapons,” the Washington Post reported. “In a message to the Legislature, Brown wrote he didn’t ‘believe that this bill’s blanket ban on semi-automatic rifles would reduce criminal activity or enhance public safety enough to warrant this infringement on gun owners’ rights,’” the Post added.

Originally published by CalWatchdog.com

Will New L.A. Ordinance Turn Gun Owners Into Outlaws?

GunIf you’re a gun owner in the city of Los Angeles, you may soon be a criminal.

The City Council has passed an ordinance that bans the possession of any firearms magazine with a capacity greater than 10 rounds. With the mayor’s signature Friday, owners of the prohibited magazines now will have 60 days to turn them over to police, destroy them personally or move them to a location outside the city limits. The ordinance says owners can sell them, but don’t try it — state law prohibits the sale of “large-capacity” magazines and has since Jan. 1, 2000.

Because that state law banned the sale but not the possession of large-capacity magazines, existing property was effectively “grandfathered.” The Los Angeles ordinance makes no such accommodation.

“With a stroke of a pen the Los Angeles City Council has not only turned hundreds of thousands of law-abiding L.A. residents into criminals, they have made property that was legally purchased under state and federal law illegal to possess overnight,” said Paul Nordberg, director of the Calguns Foundation and president of Calguns.net, a highly trafficked online forum for California gun owners. “To the best of my knowledge there is no method or funding for informing the public of their change in status from law-abiding citizen to criminal.”

Nordberg says the people who will be hardest hit are those who participate in the sport of competitive shooting, enthusiasts who have spent tens of thousands of dollars on fees and equipment. Magazines with a capacity of 15 rounds are standard in national competitions. “I refuse to call them ‘high capacity,’” he said, “Fifteen rounds is the standard, and words have meaning.”

People who don’t live in Los Angeles are unaffected by the ordinance, unless they drive through L.A. to get to a shooting range or competition in an area outside the city’s boundaries. Then, Nordberg says, they risk “arrest, confiscation of property and possible loss of civil rights for simply doing the same thing they did the day before and have done for years, simply going to the shooting range with the legal property they have owned for over a decade.”

The City Council is working on a second ordinance that would mandate the use of gun locks in the home. That ordinance is modeled on laws in San Francisco and Sunnyvale that have so far been upheld by the federal courts.

But that may not last. Supreme Court Justice Clarence Thomas was not happy with the lower courts’ decision to uphold the mandatory gun lock law. “Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it,” he wrote.

Still, the Supreme Court decided not to hear a challenge to the mandatory gun lock law — yet. So Los Angeles jumped right in to pass a similar ordinance.

California is one of only six states that has no “right to keep and bear arms” in its state constitution. In Nevada, for example, the state constitution says, “Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.”

The Arizona constitution says, “The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.” In Texas, “Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.”

But in California the state constitution is silent, so gun owners in the Golden State must depend on the federal courts’ interpretation of the Second Amendment to protect their rights from infringement. That means lawsuits will be filed to challenge the two city ordinances, and city taxpayers will incur the costs of defending the ordinances in federal court.

To better protect Second Amendment rights in California, an amendment to the state constitution is needed that secures for Californians the protections that gun owners have in 43 other states. Without that, we’re at the mercy of politicians who like to score political points by criminalizing the actions of people who didn’t do anything to anybody.

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Susan Shelley is a San Fernando Valley author, a former television associate producer and twice a Republican candidate for the California Assembly. Reach her at [email protected], or follow her on Twitter: @Susan_Shelley.

California Gun Limits Face Court Challenge

As reported by the Wall Street Journal:

California’s requirement that residents looking to carry firearms in public have a good reason to do so is facing a high-level court challenge, one that gets to a key question surrounding the Second Amendment’s right to bear arms.

On Tuesday, 11 judges of the Ninth U.S. Circuit Court of Appeals in San Francisco will hear arguments over California’s requirement that applicants show “good cause” before they are allowed to carry a concealed handgun in public. The challengers are taking issue with the rules in two California counties — San Diego and Yolo — where sheriffs say that concern for one’s personal safety alone isn’t considered justification enough for a concealed-carry permit.

In a 2008 case, District of Columbia v. Heller, the U.S. Supreme Court ruled definitively that people had the right to bear arms in their homes, even in municipalities with strict gun-control laws. But aside from a 2010 case that extended the reach of that ruling, the court has been quiet on how far the right extends beyond the front door, largely leaving lower courts little guidance. The California case will likely give the high court another opportunity to more clearly define the law.

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Teachers demand CalSTRS unload firearms investments

As reported by the Sacramento Bee:

When a gunman slaughtered 26 children and adults at a Connecticut elementary school, California’s teacher pension fund responded with a forceful denunciation of gun violence and said it was rethinking its investment in the company that manufactured the firearm used in the shooting.

Two years later, the investment remains intact, and some of CalSTRS’ chief constituents – schoolteachers – are losing patience.

The California Federation of Teachers plans a protest outside a CalSTRS board meeting in West Sacramento on Thursday, demanding the pension fund follow through on its pledge to unload its investment in Cerberus Capital Management, the private equity firm that owns gun manufacturer Freedom Group.

Prop. 47 Amendment — Common Sense Gun Policy

Assemblywoman Melissa Melendez (R-Lake Elsinore) recently introduced Assembly Bill 150, which would amend California’s Proposition 47. Before the passage of Prop. 47, the stealing of any firearm was considered felony grand theft. Now that Prop. 47 has been enacted, the charge has been reduced to a misdemeanor as long as the gun is valued under $950. AB150 would amend that provision in Prop. 47, which would reinstate the felony grand theft charge, regardless of the gun’s value.

If the bill passes both houses, it would be included on the 2016 ballot as a stand-alone provision that voters could either reaffirm or reject.

“Currently, the legislature is pushing for hasher gun control laws for law-abiding citizens and it doesn’t make sense that we would relax the penalty for gun-stealing criminals,” Melendez explains. “Criminals don’t steal guns to go duck hunting; they steal guns to commit crimes.”

The bill Melendez has proposed is a common sense bill that should pass our Legislature. No one wants guns in the hands of criminals. And we all know that any one who steals someone else’s gun is, more than likely, going to use that gun for a criminal act.

Because most handguns are under $950, very few criminals would see the felony grand theft charge.

I give Assemblywoman Melendez credit for this bill. To bring gun legislation to the California Assembly is a bold move, but it’s one that would protect responsible gun owners.

In the words of the NRA’s Wayne LaPierre, “The only way to stop a bad guy with a gun is a good guy with a gun.”

Gun owners thank you, Assemblywoman Melendez. Now it’s up to us, the voters, to encourage our representatives to pass this legislation and get it on the 2016 ballot.

SF Gun Case May Be Heading For Supreme Court

More than a dozen Second Amendment groups are asking the U.S. Supreme Court to take up a high-profile challenge to a San Francisco gun-control measure.

Led by the Firearms Policy Coalition, gun groups say the Ninth Circuit Court of Appeals erred in its decision to uphold San Francisco’s safe-storage law.

Under the ordinance implemented in 2007, the city “requires all residents who keep handguns in their homes for self-defense to stow them away in a lock box or disable them with a trigger lock whenever they are not physically carrying them on their persons.”

The groups referenced the 2007 case before the U.S. Supreme Court, District of Columbia vs. Heller, which upheld an individual right to “keep and bear arms” in the Second Amendment.

“The court should grant certiorari to reaffirm key principles concerning the scope and substance of the Second Amendment,” the groups wrote in their amicus brief. “Many lower courts have taken great pains to avoid the consequences of these decisions — defying a fundamental constitutional limitation this court made explicit in Heller. … At the forefront of this resistance is the lower courts’ refusal to follow this court’s command, made in Heller and reiterated in McDonald, that Second Amendment claims are not to be judged by unrestrained judicial interest balancing.”

Gun groups point to Heller decision

Last March, a unanimous three-judge panel of the Ninth Circuit Court of Appeals upheld the local restrictions on gun ownership, finding that gun storage mandates save lives.

“The record contains ample evidence that storing handguns in a locked container reduces the risk of both accidental and intentional handgun-related deaths, including suicide,” Judge Sandra Ikuta wrote in the ruling for the panel. She added that gun safes “may be readily accessed in case of an emergency.”

San Francisco wikimediaSecond Amendment groups have focused their arguments on the legal precedents, arguing that San Francisco’s regulations contradict the Heller decision, as well as McDonald vs. Chicago in 2009, which held the Second Amendment also applied to state laws.

“The Ninth Circuit’s lamentable decision in Jackson shows why it is the most overturned circuit court in the nation,” said Firearms Policy Coalition President Brandon Combs, one of the state’s leading gun rights activists. “The Supreme Court should take up this case not only to correct a clear wrong, but to stem the tide of judicial resistance in recognizing the right to keep and bear arms as fundamental Constitutional rights.”

He added, “The Second Amendment doesn’t protect second-class rights, and it’s time for courts to take the enumerated right to keep and bear arms at least as seriously as they do unenumerated rights like abortion.”

Other gun groups that have joined the Firearms Policy Coalition in filing the friend-of-the-court brief include the Second Amendment Foundation, the Calguns Foundation, Firearms Policy Foundation and California Association of Federal Firearms Licensees.

San Francisco City Attorney has “faith in the judiciary”

Six San Francisco residents, with the help of the National Rifle Association and the San Francisco Veteran Police Officers Association, first challenged the safe storage law in 2009. The case underscores the lengthy process of seeing gun-control restrictions ultimately become established law.  Long after the press conferences and publicity stunts, government attorneys struggle to defend the restrictions.

Scales of justice, wikimedia“I have complete faith in the judiciary to affirm our position that San Francisco’s gun safety laws protect the public in a manner that’s both reasonable and constitutional,” San Francisco City Attorney Dennis Herrera said in a 2013 press release on the case. “San Francisco has been a top target of the NRA for many years, and I’m proud of the efforts we’ve made to aggressively battle these legal challenges, and protect sensible gun laws that can save lives.”

As CalWatchdog.com has previously noted, the nation’s leading Second Amendment advocacy groups have begun to shift their efforts from the California Legislature to the courthouse. Since 2009, The Calguns Foundation has found great success in its legal challenges, which have targeted the implementation of concealed weapon permits and mandatory waiting periods.

A copy of the brief in the case of Espanola Jackson, et al. vs. City and County of San Francisco, et al., can be viewed at the Firearms Policy Coalition’s website.

Originally published at CalWatchdog.com

CA Bans Wildlife Hunting Contests

Wile E. Coyote is smirking.

Despite a robust and thriving population, coyotes have just received an unprecedented degree of legal protection from the Golden State. Bringing a longstanding rural tradition to an end, the California Fish and Game Commission cracked down on competitive hunting events, including those used to cull the animals.

Perhaps ironically, coyotes — and other “nongame species and fur-bearing animals” like bobcats and and beavers covered by the prize hunting ban — had a single, lone wolf to thank.

Animal conservation activists became aware that a particular wolf, known by the designation OR7 and nicknamed “Journey,” could have placed itself on a migratory collision course with a so-called “Coyote Drive.” The event, stretching across three days in California’s remote northeast county of Modoc, had already attracted the attention of protestors, as the San Francisco Chronicle observed.

Last year’s seventh annual drive drew fire from a score of conservation groups. In the contest, pairs of hunters aimed to win by killing the most coyotes; ties went to whichever team bagged the most coyotes in the least time.

While event organizers presented the drive as a means of population control, Project Coyote and other organizations succeeded in pushing the federal Bureau of Land Management to prohibit the drive on terrain it controls.

That effective mobilizing effort prepared the way for a second round of activism targeting California law. Claiming the Coyote Drive was simply one aspect of a larger problem, Project Coyote once again teamed with environmentalists and wildlife activists, pressing state regulators to wipe out prize hunting at a single stroke.

Again, they succeeded. By a 4-1 vote, the state Fish and Game Commission outlawed hunting competitions of any kind. In a statement, commission head Michael Sutton proclaimed the hunts “an anachronism” with “no place in modern wildlife management.” (Conservationists had argued that the Coyote Drive actually increased the animals’ breeding, as a result of the effectively random way it reduced their numbers.)

Persistent incentives

Although cash prizes in the Coyote Drive ran as high as $500, ranchers and rural Californians said plenty of incentives remained for them to kill coyotes that threaten their livelihood. The Fish and Game Commission did not ban one-off killings, and big money of a different kind awaits those willing to train a gun on the often marauding animals.

As Fox News noted, the latest numbers from the U.S. Department of Agriculture revealed cattle ranchers in-state “lost more than $4 million in 2010 to predators, and coyotes accounted for the largest number of attacks.”

Buck Parks, president of a Modoc County fishing and hunting club, told Fox News ranchers would “encourage folks to get out and help manage these predators by hunting them,” even if no prize events could be held.

Tolerant

Until further notice, California will remain as tolerant toward informal coyote kills as other states, most of which have not imposed bag limits on individual hunters. Outlawing or reducing that activity would pose a much greater challenge to activists, for whom the case for a ban would hinge more on animal-rights claims than on conservation.

Nevertheless, the defeat of the Coyote Drive has shifted policy in California far away from what state regulations permit around the country. “Frenchville, Pennsylvania, saw 4,000 hunters sign up for its 22nd annual coyote hunt earlier this year,” reported National Public Radio’s Nathan Rott. “Florida has its Python Challenge, and Texas, its Big Nasty Hog Contest.”

But Camilla Fox, one of Project Coyote’s founders, told Rott she and her fellow activists saw California’s prize hunt ban as a model with nationwide applicability. Hinting at a broader approach to come, she conjectured that “just as we have, as a nation, banned cockfighting and dog fighting, I do think that we will see an end to wildlife-killing contests.”

This article was originally published at CalWatchdog.com