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C.A. Panels See No Bar to Gun-Possession Prosecutions
Third, Sixth Districts Find Last Year’s U.S. Supreme Court Decision Inapplicable to Cases at Bar
By a MetNews Staff Writer
Two courts of appeal have rejected stances that gun possession prosecutions under California statutes are barred by the U.S. Supreme Court’s decision last year that a New York law requiring a showing of “good cause” to obtain a gun permit violates the Second and Fourteenth Amendments.
The opinions, filed Thursday, find inapplicable the federal high court’s ruling in New York State Rifle & Pistol Association, Inc. v. Bruen.
Justice Jonathan K. Renner wrote for the Third District in saying that a Sacramento Superior Court judge erroneously dismissed a prosecution of Stephanie Miller for carrying a concealed firearm in a vehicle under her control. Justice Cynthia C. Lie of the Sixth District authored the majority opinion saying that constitutional rights of a youth, “T.F.-G,” were not abridged by the Santa Clara Superior Court adjudicating him to be a delinquent based, in part, on carrying a concealed weapon.
Third District Case
Miller was charged under the concealed-weapons statute, Penal Code §25400, a violation of which is generally a misdemeanor but, under specified circumstances, constitutes a felony.
Renner said that even if California’s licensing requirements are invalid, this has no bearing on prosecutions of persons who carry firearms without a license. He wrote:
“…Bruen did not suggest that where a state bans both concealed and open carry (or all carry), the concealed carry provisions are unconstitutional. Rather, Bruen quoted a Georgia case explaining that to the extent a statute that prohibited concealed carry also prohibited open carry, it was the open carry provision that conflicted with the Constitution and was void.… This conclusion controls the outcome of this case.”
He continued:
“Whatever constitutional defects may currently exist elsewhere in California’s multifaceted statutory scheme regulating firearms, section 25400 is not itself unconstitutional because of them. To the contrary, Miller’s arguments that California’s licensing scheme is invalid, if meritorious, would suggest other statutes such as the open carry prohibitions in sections 25850 and 26350 are unconstitutional, but the concealed carry prohibitions in section 25400 would remain valid post-Bruen because California would effectively no longer ban open carry.”
The case is People v. Miller, 2023 S.O.S. 3180.
Sixth District Decision
“T.F.-G” admitted that he had violated §25850(a)—which Renner indicated might be unconstitutional. It provides:
“A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.”
Lie wrote that “[a]lthough California’s ‘good cause’ licensing requirement” under §26150 and §26155 “is undisputedly unconstitutional under Bruen, the unconstitutionality of a discrete licensing requirement does not render section 25850 facially unconstitutional.”
She went on to say:
“Fundamentally, T.F.-G. argues that if any requirement for issuance of a license to carry a loaded firearm was unconstitutional, then the application of section 25850 to punish any unlicensed person must also be unconstitutional….Notwithstanding the conceded unconstitutionality of California’s ‘good cause’ requirement for issuance of a license as it was enforced pre-Bruen, California law continues to authorize the denial of license applications on statutory grounds not implicated by Bruen. Accordingly, T.F.-G. has not demonstrated that section 25850 is invalid in at least the generality or great majority of cases, much less that it is in total and fatal conflict with the Second and Fourteenth Amendments.”
Concurring Opinion
Justice Daniel H. Bromberg concurred in the judgment based on T.F.-G. having violated Penal Code §148 which applies to anyone “who willfully resists…any…peace officer” but said that the panel should not even discuss the applicability of Bruen. He argued:
“Under the Supreme Court’s developing Second Amendment jurisprudence, to establish the validity of a restriction on carrying firearms the government must show the restriction is ‘consistent with the Nation’s historical tradition of firearm regulation.’ And in assessing that tradition, the Supreme Court has analyzed difficult-to-obtain historical materials such as state statutes and judicial opinion from the colonial, early republic, and antebellum eras….Until case law defines the nation’s historical tradition of firearm regulation, I do not believe that we should apply the Second Amendment without the benefit of such historical materials.
“T.F.-G. has not offered any historical materials or analysis in support of his Second Amendment challenge. In addition to placing the government at an unfair disadvantage on appeal, and depriving this court of the trial court’s views, the failure to supply historical materials or analysis makes it difficult for this court to engage in the historical determination that the Supreme Court now appears to require. Consequently, I do not believe that we are in a position to properly evaluate T.F.-G. ‘s Second Amendment challenge and therefore should not entertain it.”
The case is People v. T.F.-G., 2023 S.O.S. 3172.
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