• Second Amendment Right to Bear Arms
• Convicted Felons and the Second Amendment

It remains a crime for convicted felons or own or possess firearms or ammunition, despite the “right to bear Arms” protections of the Second Amendment.

Defendant Alex Joseph Alexander was convicted in 2006 of attempted murder.  He did his prison time, was released, and presumably began living the life of a law-abiding citizen, . . . at least up until 2021 when he was caught in the possession of a firearm and ammunition.  Tried and convicted with being a felon in possession of a firearm (Pen. Code § 29800(a)(1)) and ammunition (Pen. Code § 30305(a)(1)), and sentenced to prison for two years and eight months, defendant appealed.  On appeal, defendant argued that the relevant statutes violated the Second Amendment right to bear arms and were therefor unconstitutional.

The Fourth District Court of Appeal (Div. 2) affirmed, upholding defendant’s conviction.  This case, obviously, depends upon an interpretation of the Second Amendment. As written, the Second Amendment provides as follows:  “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.”  In recent years, the United States Supreme Court has issued three very significant case decisions, striking down attempts by various jurisdictions to outlaw or restrict the possession, use and/or carrying of firearms by private citizens. 

1.  Heller:  The first case was District of Columbia v. Heller (2008) 554 U.S. 570 [171 L.Ed.2nd 637; 128 S.Ct. 2783].  In Heller, the issue was the constitutionality of laws enacted by the District of Columbia (a federal enclave) banning the possession of operable handguns inside the home. The Supreme Court in Heller struck down these laws as unconstitutional.  In so doing, however, the Court recognized the fact that the Second Amendment (as with all the amendments in the Bill of Rights) is not absolute.  There are exceptions.  Per the Court in Heller, “the Second Amendment guarantees ‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’” (Italics added.) This right was violated by the District of Columbia’s attempt to ban the possession of operable weapons in the home.  But note the reference to “law-abiding, responsible citizens.”  It is assumed that when talking about a citizen’s right to bear arms in his or her own home that that person has not disqualified himself by acting irresponsibly.  As phased by the Heller Court: “(T)he Second Amendment is not unlimited” and is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”  (Heller, at p. 626.) “Nothing (in the Court’s opinion) should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” (Italics added; Heller, at pp. 626–627; noting also at fn. 26 that this is not an exhaustive list.)

2.  McDonald:  Two years later, the Supreme Court decided the case of McDonald v. City of Chicago, Ill. (2010) 561 U.S. 742 [177 L.Ed.2nd 894; 130 S.Ct. 3020].  Chicago had a City ordinance that prohibited the possession of any firearm absent a “valid registration certificate for such firearm.” The Code then prohibited registration of most handguns, thus effectively banning handgun possession by almost all private citizens who resided in the City.  Per the statute, it was “unlawful for any person to possess . . . any firearm,” a term that includes “pistols, revolvers, guns and small arms . . . commonly known as handguns.” (Chicago, Ill., Municipal Code §§ 8-20-040(a), 8-20-050(c) (2009)) The Supreme Court in McDonald struck down theses statutes as a violation of the Second Amendment. The significance of McDonald is that it applied the rule of Heller to the states via the Fourteenth Amendment’s due process clause.  Also, however, the Court in McDonald reiterated the rule of Heller to the effect that there are exceptions to the Second Amendment’s protections.  In so doing, the Court noted that “(w)e made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.’. . .  We repeat those assurances here.” (Italics added; McDonald, at p. pg. 786.) 

3.  Bruen:  Following these two cases, the lower courts started applying a two-step analysis in deciding Second Amendment cases.  (E.g., see People v. Gonzalez (2022) 75 Cal.App.5th 907, 912.)  The U.S. Supreme Court rejected this two-prong approach in the third of its landmark Second Amendment decisions; New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 597 U.S. __ [213 L.Ed.2nd 387; 142 S.Ct. 2111].  In so doing, the Bruen Court imposed the following rule: “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 (restricting the possession of firearms) by demonstrating that it (i.e., the questioned statute) is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” (Bruen, 142 S.Ct. at pp. 2129–2130.) In other words, firearms restrictions enacted by a state or local government are presumed to be unconstitutional absent the state being able to prove otherwise.  The Court further held that in assessing whether a firearms-related statute has a “relevantly similar” historical analogue, courts should consider “at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed defense.” (Id., at p. 2133, italics added.) In Bruen, the issue was the constitutionality of a New York State statute that restricted the issuance of a public-carry license to if and when the applicant was able to demonstrate a “special need” for self-defense.  New York was but one of six states that required some additional “special need” in order to obtain a permit to carry a firearm in public.  (California is another.)  Such states are described as “may issue” concealed carry licensing regime states, as opposed to “shall issue” jurisdictions where permits to carry a firearm must be issued merely by applicants making application and answering certain basic suitability questions (e.g., as relevant here, not having a felony record). (Id., at p. 2123) In New York, a person’s mere desire to carry a firearm out of a general concern for his or her own safety was insufficient to meet this standard.  The Bruen Court ruled that New York’s licensing requirements violated the Second Amendment “in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” (Id., at p. 2156.)  The ruling in Bruen was determined to be “consistent with Heller and McDonald,” both of which had “recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.”  And it must be further noted that the Bruen Court reiterated the language in both Heller and McDonald that there are exceptions, among which are individuals with a previous felony conviction.  (Id.. at p. 2162.)  

4. Alexander: Defendant Alex Alexander in this instant case appealed his conviction, arguing that the above authority should be interpreted to mean that Penal Code sections 29800(a)(1) and 30305(a)(1) are unconstitutional; i.e., “that . . . the prohibitions against felons possessing firearms and ammunition . . . violate the Second Amendment right to possess firearms for self-defense.”  The Fourth District Court here had no problem rejecting defendant’s arguments on this issue.  In so ruling, the Court first noted that both Heller and Bruen (as well as McDonald) held that “only law-abiding citizens are included among ‘the people’ whose right to bear arms is protected by the Second Amendment.”  Defendant is a convicted felon.  In stating the obvious: “A felon is ‘[s]omeone who has been convicted of a felony.’ (Black’s Law Dict. (11th ed. 2019).) In California, a felony is defined as ‘a crime that is punishable with death, by imprisonment in the state prison,’ or incarceration in the county jail under specified circumstances. ((P.C.) § 17, subd. (a).) A felon, by definition, is therefore someone who has committed a crime and as such is not law-abiding.”  In considering the first prong of Bruen’s “two metrics, how and why” analytical framework, including the prior Heller and Bruen decisions, the Fourth District Court in Alexander held that the government did in fact demonstrate that the statutes in question here were consistent with the Nation’s historical tradition of firearm regulation, recognizing the “longstanding prohibitions on the possession of firearms by felons.”  The Court further rejected defendant’s argument that the prohibiting language in the prior cases should be ignored in that it was merely “dicta” (i.e., not necessary to the Courts’ decisions and therefore not binding).  Not disagreeing with defendant in that some of the language was in fact dicta, the Court noted that the dicta was still “consistent with the Court’s explanation of the scope of the Second Amendment,” and thus binding.  Defendant further argued that the term “law-abiding citizen” includes a “law-abiding ex-felon.”  Bruen, however, shot down that argument years ago, noting that people who have suffered a felony conviction “in the past,” whether or not her or she is presently committing additional crimes, are not included in what the Court considered to be “law-abiding, responsible citizens.”  (Bruen, supra, 142 S.Ct. at p. 2138, fn. 9.)  “It follows that the Second Amendment right afforded to law-abiding citizens does not extend to convicted felons who are presently refraining from committing additional crimes.”  Defendant, therefore, being ineligible to possess firearms or ammunition, was lawfully convicted for having done so.