By Robert Phillips, Deputy District Attorney (Ret).

Second Amendment Update: What’s new under New York State Rifle & Pistol Assn., Inc. v. Bruen, the Second Amendment, and the regulation of firearms? 

Since the U.S. Supreme Court’s landmark decision of New York State Rifle & Pistol Assn., Inc. v. Bruen (June 23, 2022) 597 U.S. ___ [213 L. Ed.2nd 387; 142 S.Ct. 2111], setting out the standards to be used in evaluating the constitutionality of every state’s Second Amendment statutes, we’ve been receiving from the appellate courts a case-by-case reevaluation of California’s restrictions on the owning and carrying of firearms. 

In a nutshell, Bruen had the effect of striking down statutes in six states: California, New York, Hawaii, Maryland, Massachusetts and New Jersey, and the District of Columbia, each of which imposed a “proper cause” requirement for a citizen to obtain a permit to carry a concealed firearm in public.  

California’s requirement was worded a bit differently, requiring “good cause.” The California attorney general has conceded, however, that the difference in wording is irrelevant; that the two phrases mean the same thing. (E.g., In re D.L., infra, at pg. 148.) The attorney general has similarly conceded (without any specific case decision that has so held) that the Bruen decision also had the effect of making unconstitutional California’s requirement that to obtain a permit to carry a concealed firearm, an applicant must first show “good cause” for needing to do so. (Ibid, referring to Pen. Code, §§ 26155(a)(2) and 26150(a)(2)).  

Since Bruen, the cases, including those in California and the Ninth Circuit, dealing with how far the new Bruen standards can be stretched are becoming quite common.  

For instance:  

• In re D.L. (July 3, 2023) 93 Cal.App.5th 144 (First District Court of Appeal, Div.2): Penal Code § 25850(a) carrying a loaded firearm, generally a felony offense (Subd. (c)(1)-(6), remains in effect in that the “good cause” requirement of Penal Code §§ 26155(a)(2) and 26150(a)(2) for obtaining a license to carry a concealable firearm is severable from the rest of California’s licensing and carrying framework. As such, the Bruen decision had no effect on whether a state can make illegal the carrying of a loaded firearm absent the person being legally licensed to do so. Bottom line is that while a showing of “good cause” is not necessary for a person to obtain a CCW (carrying concealed a weapon) permit, he must still get that permit. Carrying a concealed firearm without such a permit is still illegal. 

• In re T.F.-G. (Aug. 24, 2023) __ Cal.App.5th __ [2023 Cal.App. LEXIS 639] (Sixth District Court of Appeal): California’s Sixth District Court of Appeal agreed with the First District case discussed above to the effect that the continuing enforcement of Penal Code § 25850(a) was not affected by the Bruen decision. A person is required to obtain a permit before carrying a concealed firearm even though he or she need not first show a “good cause” for needing such a permit. (This case, by the way, also discusses the interesting issue of a subject fleeing from an officer’s attempt to detain him, determining that to do so is a violation of Penal Code § 148(a)(1), interfering with an officer in the performance of his duties, at least when the officer’s attempt to detain was lawful.)  

• People v. Miller (Aug. 24, 2023) __ Cal.App.5th __ [2023 Cal.App. LEXIS 642] (Third District Court of Appeal): The defendant in Miller was arrested for possessing a loaded concealable firearm in a vehicle under her control, pursuant to Penal Code § 25400(a)(1). The trial court granted the defendant’s demurrer to the complaint charging her with a violation of this section under the theory that Bruen made this section unenforceable. The Third District Court of Appeal reversed, holding that Bruen only invalidated the “good cause” requirement in California’s firearm licensing statutes. Penal Code § 25400(a)(1) remained otherwise constitutional pursuant to the severability doctrine, as discussed in D.L. and T.F.-G., above. 

• People v. Ceja (Aug. 30, 2023) __ Cal.App.5th __ [2023 Cal.App. LEXIS 657] (Fourth District Court of Appeal, Div. 3): The defendant was convicted of being a felon in possession of ammunition, a felony pursuant to Penal Code, § 30305(a)(1), along with other crimes. The defendant, who had a felony record, argued on appeal that due to the Bruen decision, section 30305 violates the Second Amendment and is therefore unenforceable. The court noted, however, that the Second Amendment protects the rights of “law-abiding, responsible citizens” to possess firearms and/or ammunition. Convicted felons, by definition, are not law abiding. Felons, therefore, are not among the people who have an individual right to possess firearms or ammunition under the Second Amendment. 

• Baird v. Bonta (Sep. 7, 2023) __ F.4th __ [2023 U.S.App. LEXIS 23760] This case dealt with California’s “open carrying” of a handgun statutes, Penal Code §§ 25850(a) (loaded) and 26350(a) (unloaded). The plaintiffs moved for a preliminary injunction, seeking a prohibition against enforcement of California’s open carry statutes, arguing that the Supreme Court’s Bruen decision rendered them unconstitutional. Without making that decision for the district court, the Ninth Circuit Court of Appeal merely held that the district (trial) court applied the wrong test in deciding against the plaintiffs and remanded the case for reconsideration. The court held that in evaluating whether plaintiffs were entitled to an injunction, the district court needs to decide whether under Bruen, a government may constitutionally regulate the issue of open carry; i.e., whether the regulation is identical or closely analogous to a firearm regulation broadly in effect at that time when the Second or Fourteenth Amendment was first ratified in 1791 and 1868, respectively. The court here determined that the district court failed to apply the Bruen standard (see immediately below) and remanded the case for that purpose. 

Each of the above cases, at some point, discuss the rules as set out by Bruen. Quoting from Baird v. Bonta, supra, here are those rules: 

“(I)f the Second Amendment’s plain text covers the regulated conduct, the regulation will stand only if the government can ‘affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms’ in the United States. (Bruen, 142 S. Ct. at 2127). While the government need not identify a ‘dead ringer’ for its modern regulation, it must locate a ‘well-established and representative historical analogue’ that was in effect when the Second or Fourteenth Amendment was ratified. (Id. at 2132-33). To qualify, the analogue must be close: the historical regulation must have been ‘relevantly similar’ to the challenged regulation in ‘how and why’ it ‘burden[ed] a law-abiding citizen’s right to armed self-defense.’ (Id). As the Supreme Court has cautioned, upholding a modern regulation that only ‘remotely resembles a historical analogue’ would entail ‘endorsing outliers that our ancestors would never have accepted’ and thus be inconsistent with the historical inquiry required by Bruen. Id. at 2133 (quoting Drummond v. Robinson Twp., 9 F.4th 217, 226 (3rd Cir. 2021)).” 

First Amendment vs. Second Amendment Concerns 

Junior Sports Magazines Inc. v. Bonta (9th Cir. Sept. 13, 2023) __ F.4th __ [2023 U.S.App. LEXIS 24254].)  

This case, while noting that “California’s gun restriction laws are considered among the strictest of any state in the nation,” is about California’s legislative attempt to ban a truthful ad about firearms legally used by adults and minors because the ad “reasonably appears to be attractive to minors.” As such, the case deals with First Amendment freedom of speech issues as opposed to the Second Amendment right to bear arms. Under the First Amendment: “(S)ates can ban truthful and lawful advertising only if it ‘materially’ and ‘directly’ advances a substantial government interest and is no more extensive than necessary.”  

The legislation discussed in this case is Business and Professions Code § 22949.80 (AB 2571, effective June 30, 2022, as later amended by AB 160, effective Sept. 29, 2022). This statute mandates that “[a] firearm industry member shall not advertise, market or arrange for placement of an advertising or marketing communication offering or promoting any firearm-related product in a manner that is designed, intended or reasonably appears to be attractive to minors.” (Subd. (a)(1)). It applies only to marketing or advertising, which it defines as making, “in exchange for monetary compensation...a communication, about a product, the primary purpose of which is to encourage recipients of the communication to engage in a commercial transaction.” (Subd. (c)(6))  

Notably, the law does not apply to communications “offering or promoting” firearm safety programs, shooting competitions, hunting activities, or membership in any organization. (Subd. (a)(3)). Determining that “the proliferation of firearms to and among minors poses a threat to the health, safety and security of all residents of, and visitors to, [the] state,” as “[t]hese weapons are especially dangerous in the hands of minors,” the legislature chose to regulate the advertising of firearms only instead of California’s firearm-possession laws for minors, which, as noted by the court, “could spark opposition from many Californians who use firearms lawfully.” Section 22949.80 would be enforced with civil penalties not exceeding $25,000 for each violation and injunctive relief where “the court deems necessary to prevent the harm described in this section.” (Subd. (e)(1), (4).).  

Plaintiff Junior Sports Magazines Inc. sought injunctive relief in federal court, challenging the statute’s constitutionality under the First and Fourteenth Amendments. The plaintiff’s request for injunctive relief was denied by the district (trial) court. The Ninth Circuit Court of Appeals reversed.  

The controlling authority is Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (1980) 447 U.S. 557. Under Central Hudson, a court must determine first whether the advertising at issue is misleading or concerns unlawful activity. If so, the advertising at issue is not entitled to the protections of the First Amendment. If not, it becomes the state’s burden to show that the statute directly and materially advances a substantial governmental interest and that it is not more extensive than is necessary to further that interest. While noting that “California has a substantial interest in reducing gun violence and unlawful use of firearms by minors,” the legislation at issue here “does not ‘directly’ and ‘materially’ further either goal,” the court ruled.  

The court ultimately held that Section 22949.80 unlawfully attempting to regulate speech that, standing alone, is neither misleading nor concerns any unlawful activity. As such, California failed to justify its infringement on protected speech under the Supreme Court’s Central Hudson framework. Noting, therefore, that the plaintiff would likely succeed on the merits, the court reversed the district court’s ruling and remanded the case for further proceedings. 

Conclusion 

As noted above, Second Amendment “right to bear arms” cases are coming down fast and furious as the courts reevaluate the general thinking on the Second Amendment issue in light of Bruen. And Bruen is merely the icing on the cake, having been preceded by two other landmark U.S. Supreme Court case decisions. 

First, in District of Columbia v. Heller (2008) 554 U.S. 570, the Supreme Court identified a constitutionally protected right to the possession of an operable handgun in the home. Two years after Heller, the Supreme Court decided McDonald v. Chicago (2010) 561 U.S. 742, holding that the due process clause of the Fourteenth Amendment incorporates Second Amendment rights, making them applicable to the states and not just the federal government.  

All this was followed by Bruen, which, as noted, provides us with the standards to be used when evaluating just how far those Second Amendment rights may be extended. Based upon these cases, we can well expect more constitutional challenges to the various statutes in California that seek to regulate the possession and use of firearms, and ammunition.  

As they come down, I will continue to group them in further updates and provide you with the information you need to stay abreast of this interesting, and continually changing, issue.