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Status Of California Laws FAQ
Since McDonald came out, I've seen a lot of the same questions over and over, and I thought I'd put together a little FAQ about the status of California laws after McDonald and what Calguns Foundation and other groups are doing to protect our Second Amendment rights. If you have further questions that aren't on this list, just ask away in the thread. If I can answer it, and it belongs here, I'll add it to the list.
Some of this post deals with ongoing litigation. This information was last brought up to date on May 13, 2011. The latest status on the items CGF is responsible for can generally be found at the Calguns Foundation Wiki:
The focus of this post is not to give a detailed overview of every single case we're working on. Rather, there seem to be a lot of questions about what is being done to challenge particular laws, and this is trying to answer those questions from the "What is being done to challenge the roster?" perspective, as opposed to the "What's the status of Peña?" perspective. I've also included cases that are being run by other individuals and organizations, but note I may not be up to speed on the latest information on these items. This post shouldn't be considered an up-to-the-minute status on anything, but a general clearinghouse for "what's being done about this particular law?"
What Was The Decision in Heller?
In Heller The Supreme Court held that the Second Amendment protects an individual right to keep arms for the primary purpose of self defense in the home. We're optimistic that future decisions will make it clear it also protects more than this, but that's the state of the law, today. Importantly, because this case was against laws in Washington, D.C., it only constrained the Federal government - not states, cities or counties.
What Was The Decision in McDonald?
In McDonald The Supreme Court held that the Second Amendment also applies to the states - that states, cities and counties may not pass laws that violate the Second Amendment.
What Changes Does McDonald Cause In California Law, Today?
None. There is nothing that was illegal on June 1 that's legal today because of McDonald.
Well, Then, What's The Big Deal About McDonald If I Still Can't Buy The Gun I Want?
Courts work through a system of precedents. If a superior court says an argument is invalid, it can't be made again. Mr. Gura has been following a very clear and simple strategy to knock down the antis' arguments, one at a time.
Imagine it's 1998. You're arrested for Loaded Open Carry. You go to court, and say, "I have a Second Amendment right to own and bear arms, this law is unconstitutional." The other side would have said, "The Second Amendment confers a collective right to the states, not to an individual, so the law is fine," and you'd lose and stay in jail.
Imagine it's now 2009. You're arrested for Loaded Open Carry. You make the same argument, and their reply is, "Well, obviously, he has an individual right to own the gun at the Federal level, but the Second Amendment doesn't apply to the states, so the law is fine," and you'd stay in jail.
Now, it's July, 2010. You're arrested for Loaded Open Carry. You make the same argument, and their reply is, "Well, obviously, he has an individual right to own the gun, and the Second Amendment applies that to the state of California, but Heller just says you have the right to keep it in your home for self defense, and he was out walking around," and you'd stay in jail.
I know many of you are frustrated at this point, because "it never ends, we just keep filing lawsuits and keep not getting our rights back". However, the analogy has been put out that this is like a chess game, and it's a good one. You don't win a chess game on the first move. In Heller, we took their queen. In McDonald, we took a rook. As we progress, taking their capital pieces, their defense gets weaker and weaker, more vulnerable to future attacks. Let's see how the end-game might play out:
Imagine it's now 2012. Alan Gura has won his North Carolina suit. You're arrested for Loaded Open Carry. You make the same argument, and their reply is, "Well, obviously, he has an individual right to own the gun, and the Second Amendment applies that to the state of California, and he has a right to bear as well per the North Carolina case, but we have a compelling state interest in preventing people from running around in public with guns," and you'd stay in jail (though you're now at the point that you could reasonably mount a legal fight).
Imagine it's now 2013. Alan Gura (or perhaps someone else) has won a case stating that, as a right that Fundamental to our system of ordered liberty, any restrictions on the right to keep and bear arms must pass the "strict scrutiny" test. You're arrested for Loaded Open Carry. You make the same argument, and their reply is, "Well, obviously, he has an individual right to own the gun, and the Second Amendment applies that to the state of California, and he has a right to bear as well per the North Carolina case, but we have a compelling state interest in preventing people from running around in public with guns," and the judge overrules them since strict scrutiny applies, and releases you, because they are out of arguments. Your lawyer puts together a Section 1983 Civil Rights lawsuit and recovers damages because your rights were infringed, and they train all their officers that Loaded Open Carry is legal.
But, They'll Just Come Up With More Arguments!
Doubtless they'll try something. But, from a legal perspective, every step they take, their arguments get easier to defeat and are legally weaker. We have a lot of great minds on our side that spend a lot of time trying to anticipate their next argument, and we're pretty confident what's left after we exhaust those arguments isn't going to be very persuasive.
So, How Do We Know What To Challenge, Next?
We look at the argument the other side is going to make at each point, and we bring a carefully crafted case, with sympathetic plaintiffs to attack only that argument (as much as possible - sometimes it's not possible to be that simple). Once we get to that final step - strict scrutiny for restrictions on "keep" and "bear", applied to the states - then we can unleash the great flotilla of lawsuits to challenge every single law that is causing you heartburn. Until that happens, we need to restrict what we're doing so the legal arguments we make are crisp, precise, and irrefutable.
Also, some cases are likely to be politically harder than others. The more solid precedents we have that we can cite that show that gun ownership is a fundamental right, the easier it will be to convince judges that they should allow some of the less politically favorable items to be legal.
What's This Whole "Scrutiny" Thing?
Courts have found, over the past two centuries, that there are certain restrictions of fundamental rights that are allowed. Classic examples from the First Amendment are libel, and "falsely shouting fire in a theater and causing a panic". Courts attempt to balance how fundamental the right is, versus how bad the restriction is, versus how important the goal of the restriction is.
In general, laws have to have a "rational basis" - which, like most legal terms, doesn't mean what your average non-lawyer would guess. In this case, it means "Can the legislature come up with some conceivable argument for why it's a good idea?"
Above that is "intermediate scrutiny", in which the government has to show that they have a compelling interest, and that the way they're achieving that is substantially related to it. For example, under intermediate scrutiny they couldn't ban the publication of all newspapers because they might contain libels.
The top level is "strict scrutiny", in which the restriction must be "narrowly tailored" and be "the least restrictive means" to achieve the government's goals. This is supposed to be applied if the right is "fundamental" to our concept of "ordered liberty" (for example, as is freedom of speech).
We don't yet know what standard of scrutiny the courts will hold gun laws up to. We do know from Heller it won't be "rational basis", so it's either "intermediate" or "strict". Obviously, we want strict, but we're optimistic most of the most onerous gun laws wouldn't stand up to "intermediate", either. One of our big strategic focuses right now is getting a case that is likely to get us "strict" scrutiny, as soon as possible. If we get that, we'll be able to challenge a lot more, more quickly. There is some reason to be optimistic that it will be "strict", based on the McDonald opinion's constant referral to the right as "fundamental".
(Continued in first reply...)
Brett Thomas - @the_quark on Twitter -
Founding CGF Director and Treasurer; NRA Life Member; Ex-CRPA Director and Life Member; SAF Life Member; Peña Plaintiff
Last edited by the_quark; 05-12-2011 at 11:16 PM.. Reason: Changed the update date to 1/9/11