BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 144 (Portantino)
As Amended June 1, 2011
Hearing date: June 7, 2011
Business and Professions Code and
Penal Code
SM:dl
OPEN CARRYING OF UNLOADED HANDGUNS
HISTORY
Source: California Police Chiefs Association
Prior Legislation: AB 1934 (Saldana) - 2010, died on Assembly
Concurrence
AB 98 (Cohn) - 2005, held on Suspense in Assembly
Appropriations
AB 2501(Horton) - 2004, failed passage in Assembly
Public Safety
AB 2828 (Cohn) - 2004, failed passage in Assembly
Public Safety
Support: Brady Campaign to Prevent Gun Violence (California
Chapters); City of Beverly Hills; City of Los Angeles;
City of West Hollywood; Coalition Against Gun Violence;
Friends Committee on Legislation; Legal Community
Against Violence; Los Angeles Sheriff's Department;
Peace Officers Research Association of California
(PORAC); over 200 individual citizens
Opposition:California Rifle and Pistol Association; Capitol
Resource Family Impact; Diablo Valley Gun Works; Gun
Owners of California; National Rifle Association;
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Responsible Citizens of California; 20 individual
citizens
Assembly Floor Vote: Ayes 46 - Noes 29
KEY ISSUES
SHOULD IT BE A MISDEMEANOR PUNISHABLE BY UP TO SIX MONTHS IN
COUNTY JAIL AND A $1,000 FINE TO OPENLY CARRY AN UNLOADED
HANDGUN ON ONE'S PERSON OR IN A VEHICLE?
(Continued)
SHOULD IT BE A MISDEMEANOR PUNISHABLE BY UP TO ONE YEAR IN COUNTY
JAIL AND A $1,000 FINE TO OPENLY CARRY AN UNLAWFULLY POSSESSED
UNLOADED HANDGUN AND AMMUNITION IN PUBLIC IN AN INCORPORATED CITY?
SHOULD SPECIFIED EXCEPTIONS TO THIS PROHIBITION BE ESTABLISHED?
SHOULD IT BE A MISDEMEANOR, PUNISHABLE BY UP TO SIX MONTHS IN JAIL
AND A FINE OF UP TO $1,000 FOR THE DRIVER OF A VEHICLE TO KNOWINGLY
ALLOW A PERSON TO BRING AN OPENLY CARRIED, UNLOADED HANDGUN INTO THE
VEHICLE?
PURPOSE
The purpose of this bill is to (1) make it a misdemeanor
punishable by up to 6 months in jail and a $1,000 fine to openly
carry an unloaded handgun on one's person or in a vehicle; (2)
make it a misdemeanor punishable by up to one year in county
jail and a $1,000 fine to openly carry an unlawfully possessed
unloaded handgun and ammunition in public in an incorporated
city; (3) establish specified exceptions to this prohibition;
(4) make it a misdemeanor, punishable by up to six months in
jail and a fine of up to $1,000 for the driver of a vehicle to
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knowingly allow a person to bring an openly carried, unloaded
handgun into the vehicle; and (5) make conforming and
nonsubstantive technical changes to affected statutes.
Existing law defines "handgun" as any "pistol," "revolver," or
"firearm capable of being concealed upon the person." (Penal
Code § 16640(a).)<1>
Existing law prohibits carrying a concealed weapon, loaded or
unloaded, unless granted a permit to do so. Except as otherwise
provided, a person is guilty of carrying a concealed firearm
when he or she:
Carries concealed within any vehicle which is under his
or her control or direction any pistol, revolver, or other
firearm capable of being concealed upon the person;
Causes to be concealed within any vehicle in which the
person is an occupant any pistol, revolver, or other
firearm capable of being concealed upon the person; or,
Carries concealed upon his or her person any pistol,
revolver, or other firearm capable of being concealed upon
the person. (Penal Code § 25400(a).)
Existing law provides that carrying a concealed firearm is
generally a misdemeanor, punishable by up to one year in a
county jail; by a fine of up to $1,000; or both. However, there
are several circumstances in which carrying a concealed weapon
may be punishable as a felony or alternate felony-misdemeanor:
A felony where the person has previously been convicted
of any felony or of any crime made punishable by the
Dangerous Weapons Control Law;
A felony where the firearm is stolen and the person
knew, or had reasonable cause to believe, that the firearm
--------------------------
<1> SB 1080, Chap. 711, Stats. 2010, and SB 1115, Chap. 178,
Stats. 2010, recast and renumbered most statutes relating to
deadly weapons without any substantive change to those statutes.
Those changes will become operative January 1, 2012. All
references to affected code sections will be to the revised
version unless otherwise indicated.
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was stolen;
A felony where the person is an active participant in a
criminal street gang;
A felony where the person is not in lawful possession of
the firearm, as defined, or the person is within a class of
persons prohibited from possessing or acquiring a firearm;
An alternate felony-misdemeanor where the person has
been convicted of a crime against a person or property or
of a narcotics or dangerous drug violation; and,
An alternate felony-misdemeanor where:
o Both the concealable firearm and the unexpended
ammunition for that firearm are either in the immediate
possession of the person or readily available to that
person or where the firearm is loaded; and,
o The person is not listed with the Department of
Justice (DOJ) as the registered owner of the firearm.
(Penal Code § 25400(c).)
Existing law provides a number of exceptions and limitations to
the prohibition on carrying a concealed firearm including
methods to lawfully carry firearms in a vehicle, a home, or a
business, etc. (Penal Code §§ 25600, 25605, 25610, 25505-25595,
25450-25475, 25615-25655, and 26150-26255.)
Existing law authorizes the sheriff of a county, or the chief or
other head of a municipal police department of any city or city
and county, upon proof that the person applying is of good moral
character, that good cause exists for the issuance, and that the
person applying satisfies any one of specified conditions, and
has completed a course of training, as specified, to issue to
that person a license to carry a pistol, revolver, or other
firearm capable of being concealed upon the person in either one
of the following formats:
A license to carry concealed a pistol, revolver, or
other firearm capable of being concealed upon the person.
Where the population of the county is less than 200,000
persons according to the most recent federal decennial
census, a license to carry loaded and exposed in only that
county a pistol, revolver, or other firearm capable of
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being concealed upon the person.
(Pen Code § 26150-26255.)
Existing law prohibits the carrying of a loaded firearm on his
or her person or in a vehicle while in any public place or on
any public street in an incorporated city or a prohibited area
of unincorporated territory. The penalty provisions for this
prohibition are substantially similar to those provided in Penal
Code Section 25400(c) and provide numerous exceptions and
limitation to this prohibition. (Penal Code § 25850.)
Existing law provides that a firearm shall be deemed to be
loaded for the purposes of Penal Code Section 12031 when there
is an unexpended cartridge or shell, consisting of a case that
holds a charge of powder and a bullet or shot, in, or attached
in any manner to, the firearm, including, but not limited to, in
the firing chamber, magazine, or clip thereof attached to the
firearm; except that a muzzle-loader firearm shall be deemed to
be loaded when it is capped or primed and has a powder charge
and ball or shot in the barrel or cylinder. (Penal Code §
16840(b).)
Existing law provides in the Fish and Game Code that it is
unlawful to possess a loaded rifle or shotgun in any vehicle or
conveyance or its attachments which is standing on or along or
is being driven on or along any public highway or other way open
to the public. (Fish and Game Code § 2006.)
Existing law provides that a rifle or shotgun shall be deemed to
be loaded for the purposes of this section when there is an
unexpended cartridge or shell in the firing chamber but not when
the only cartridges or shells are in the magazine. (Id.)
Existing law provides that carrying a loaded firearm is
generally a misdemeanor, punishable by up to one year in a
county jail; by a fine of up to $1,000; or both. However, there
are several circumstances in which the penalty may be punishable
as a felony or alternate felony-misdemeanor:
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A felony where the person has previously been convicted
of any felony or of any crime made punishable by the
Dangerous Weapons Control Law;
A felony where the firearm is stolen and the person knew
or had reasonable cause to believe that the firearm was
stolen ;
A felony where the person is an active participant in a
criminal street gang;
A felony where the person is not in lawful possession of
the firearm, as defined, or the person is within a class of
persons prohibited from possessing or acquiring a firearm;
An alternate felony-misdemeanor punishable by
imprisonment in the state prison; by imprisonment in a
county jail not to exceed one year; by a fine not to exceed
$1,000; or by both that imprisonment and fine where the
person has been convicted of a crime against a person or
property or of a narcotics or dangerous drug violation.
An alternate felony-misdemeanor punishable by
imprisonment in the state prison; by imprisonment in a
county jail not to exceed one year; by a fine not to exceed
$1,000; or by both that imprisonment and fine where the
person is not listed with the DOJ as the registered owner
of the firearm.
(Penal Code § 25858(c).)
Existing law , the "Gun-Free School Zone Act," prohibits a
person, without appropriate permission, as specified, from
possessing a firearm within an area that the person knew or
reasonably should have known was a "school zone," defined as an
area in or on the grounds of or within 1,000 feet of the grounds
of any public or private K-12 school. (Penal Code § 626.9.)
Existing law provides that any person who has ever been
convicted of a felony and who owns or has in his or her
possession or under his or her custody or control a firearm is
guilty of a felony, punishable by 16 months, 2 or 3 years in
prison. (Penal Code § 29800(b).)
Existing law provides that every person who, except in
self-defense, draws or exhibits any firearm in public, loaded or
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unloaded, in the presence of another person, in a rude, angry or
threatening manner is guilty of a misdemeanor and shall be
imprisoned for not less than three months nor more than one year
in the county jail; fined $1,000; or both. (Penal Code §
417(a).)
Existing law provides that every person who, except in
self-defense, draws or exhibits any firearm, loaded or unloaded,
in a rude, angry or threatening manner in public, in the
presence of a peace officer, who a reasonable person would know
was in the performance of his or her duty, is guilty of an
alternate misdemeanor/felony and shall be imprisoned for not
less than nine months and up to one year in the county jail or
in the state prison for 16 months, 2 or 3 years. (Penal Code §
417(c).)
This bill provides that it shall be a misdemeanor, punishable by
up to 6 months in the county jail, a fine of up to $1,000, or
both, for any person to carry an exposed and unloaded handgun
outside a vehicle upon his or her person or inside or on a
vehicle, whether or not on his or her person, while in:
A public place or public street in an incorporated city
or city and county.
A public street in a prohibited area of an
unincorporated area of a county or city and county.
A public place in a prohibited area of a county or city
and county.
This bill provides that it shall be a misdemeanor punishable by
imprisonment in a county jail for up to one year, a fine of up
to $1,000, or both, for any person to carry an exposed and
unloaded handgun inside or on a vehicle, whether or not on his
or her person, while in a public place or public street in an
incorporated city or city and county is, if both of the
following conditions exist:
The handgun and unexpended ammunition capable of being
discharged from that handgun are in the immediate
possession of that person.
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The person is not in lawful possession of that handgun.
This bill provides that the above-stated provisions shall not
preclude prosecution under any other law with a penalty that is
greater.
This bill provides that the above-stated provisions are
cumulative, and shall not be construed as restricting the
application of any other law. However, an act or omission
punishable in different ways by different provisions of law
shall not be punished under more than one provision.
This bill provides that, notwithstanding the fact that the term
"an unloaded handgun" is used in this section, each handgun
shall constitute a separate and distinct offense.
This bill provides that the crime of openly carrying an unloaded
handgun does not apply to, or affect, the following:
The open carrying of an unloaded handgun by
any peace officer or by an honorably retired peace
officer authorized to carry a handgun, as specified;
The open carrying of an unloaded handgun by
any person authorized to openly carry a loaded
handgun, as specified;
The open carrying of an unloaded handgun as
merchandise by a person who is engaged in the business
of manufacturing, wholesaling, repairing or dealing in
firearms and who is licensed to engaged in that
business or an authorized representative of that
business;
The open carrying of an unloaded handgun by
duly authorized military or civil organizations while
parading, or the members thereof when at the meeting
places of their respective organizations;
The open carrying of an unloaded handgun upon
the person by a member of any club or organization
organized for the purpose of practicing shooting at
targets upon established target ranges, whether public
or private, while the members are using handguns upon
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the target ranges or incident to the use of a handgun
at that target range;
The open carrying of an unloaded handgun by a
licensed hunter while engaged in lawful hunting;
The open carrying of an unloaded handgun
incident to transportation of a handgun by a person
operating a licensed common carrier or an authorized
agent or employee thereof when transported in
conformance with applicable federal law;
The open carrying of an unloaded handgun by a
member of an organization chartered by the Congress of
the United States or nonprofit mutual or public
benefit corporation organized and recognized as a
nonprofit tax-exempt organization by the Internal
Revenue Service while an official parade duty or
ceremonial occasions of that organization;
The open carrying of an unloaded handgun upon
the person within a gun show, as specified;
The open carrying of an unloaded handgun
within a school zone, as defined, with the written
permission of the school district superintendent, his
or her designee, or equivalent school authority;
The open carrying of an unloaded handgun when
in accordance with the provisions relating to the
possession of a weapon in a public building or State
Capitol;
The open carrying of an unloaded handgun by
any person while engaged in the act of making or
attempting to make a lawful arrest;
The open carrying of an unloaded handgun
incident to loaning, selling, or transferring the
same, as specified, so long as that handgun is
possessed within private property and the possession
and carrying is with the permission of the owner or
lessee of that private property;
The open carrying of an unloaded handgun by a
person engaged in firearms-related activities, while
on the premises of a fixed place of business which is
licensed to conduct and conducts, as a regular course
of its business, activities related to the sale,
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making, repair, transfer, pawn, or the use of
firearms, or related to firearms training;
The open carrying of an unloaded handgun by an
authorized participant in, or an authorized employee
or agent of a supplier of firearms for, a motion
picture, television, or video production or
entertainment event when the participant lawfully uses
the handgun as part of that production or event or
while rehearsing or practicing, or while the
participant or authorized employee or agent is at that
production event or rehearsal or practice;
The open carrying of an unloaded handgun upon
the person incident to obtaining an identification
number or mark assigned for that handgun from the
Department of Justice (DOJ);
The open carrying of an unloaded handgun upon
the person at any established target range, whether
public or private, while the person is using the
handgun upon the target range.
The open carrying of an unloaded handgun by a
person when that person is summoned by a peace officer
to assist in making arrests or preserving the peace
while he or she is actually engaged in assisting that
officer;
The open carrying of an unloaded handgun upon
the person incident to any of the following:
o Complying with requirements for
importing that handgun or curio or relic into
California;
o Reporting disposition of a handgun
to DOJ, as specified;
o The sale or transfer of that firearm
to a government entity, as specified;
o Complying with requirements related
to the transfer of a handgun obtained by gift or
inheritance;
o Complying with requirements for
taking possession or title of that handgun;
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The open carrying of an unloaded handgun
incident to a private party transfer through a
licensed firearms dealer;
The open carrying of an unloaded handgun by a
person in the scope and course of training by an
individual to become a sworn peace officer;
The open carrying of an unloaded handgun in
the course and scope of training to in order to be
licensed to carry a concealed weapon;
The open carrying of an unloaded handgun at
the request of a sheriff or chief or other head of a
municipal police department;
The open carrying of an unloaded handgun upon
the person within a place of business, within a place
of residence, or on private property if done with the
permission of the owner or lawful possessor of the
property;
The open carrying of an unloaded handgun upon
the person when all of the following conditions are
satisfied:
o The open carrying occurs at an
auction or similar event of a nonprofit or mutual
benefit corporation event where firearms are
auctioned or otherwise sold to fund activities.
o The unloaded handgun is to be
auctioned or otherwise sold for the nonprofit
public benefit mutual benefit corporation.
o The unloaded handgun is delivered by
a licensed dealer.
The open carrying of an unloaded handgun by a
person authorized to carry a handgun in the State
Capitol or residences of the Governor or other
constitutional officers;
The open carrying of an unloaded handgun by
authorized public transit officials, as specified;
The open carrying of an unloaded handgun on
publicly owned land, if the possession and use of a
handgun is specifically permitted by the managing
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agency of the land and the person carrying the handgun
is in lawful possession of that handgun;
The carrying of an unloaded handgun if the
handgun is carried either in the locked trunk of a
motor vehicle or in a locked container.
This bill provides that the "Gun Free School Zones Act"
described above does not apply to or affect the following
persons:
A security guard authorized to openly carry an unloaded
handgun pursuant to the provisions of this bill;
An honorably retired peace officer authorized to openly
carry an unloaded handgun pursuant to the provisions of
this bill.
This bill provides that it shall be a misdemeanor, punishable by
up to 6 months in county jail, a fine of up to $1,000, or both,
for a driver of any motor vehicle or the owner of any motor
vehicle, whether or not the owner of the vehicle is occupying
the vehicle, to knowingly permit any other person to carry into
or bring into the vehicle an openly carried unloaded handgun, as
specified.
This bill makes conforming and nonsubstantive technical changes.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
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plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
The absence of a prohibition on "open carry" has
created an increase in problematic instances of guns
carried in public, alarming unsuspecting individuals
and causing issues for law enforcement. Simply put,
open carry creates a potentially dangerous situation
for the Citizens of California.
Often, when an individual is openly carrying a
firearm, law enforcement is called to the scene with
few details other than one or more armed individuals
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are present at a location.
In these tense situations, the slightest wrong move by
the gun-carrier could be construed as threatening by
the responding officer, who may feel compelled to
respond in a manner that could be lethal. In this
situation the practice of "open carry" creates an
unsafe environment for all parties involved; the
officer, the gun-carrying individual, and for any
other people who happen to be in the line of fire.
Additionally, the increase in "open carry" calls
placed to law enforcement has taxed departments
dealing with under-staffing and cutbacks due to the
current fiscal climate in California, preventing them
from protecting the public in other ways.
2. Background - The "Open Carry Movement" in California
California has some of the nation's strictest regulations
regarding gun ownership. One practice that has remained
unregulated is carrying an unconcealed, unloaded handgun. In
2004 and 2005, and then again last year there were unsuccessful
attempts to prohibit this practice. (AB 2828 (Cohn) (2004); AB
2501 (Horton) (2004); AB 98 (Cohn) (2005), AB 1934 (Saldana)
(2010).) A new movement to promote the open carrying of
firearms in California and around the country has heightened
debate around the issue, as reported in the New York Times:
For years, being able to carry a concealed handgun has
been a sacred right for many gun enthusiasts. In
defending it, Charlton Heston, the actor and former
president of the National Rifle Association, used to
say that the flock is safer when the wolves cannot
tell the difference between the lions and the lambs.
But a grass-roots effort among some gun rights
advocates is shifting attention to a different goal:
exercising the right to carry unconcealed weapons in
the 38 or more states that have so-called open-carry
laws allowing guns to be carried in public view with
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little or no restrictions. The movement is not only
raising alarm among gun control proponents but also
exposing rifts among gun rights advocates.
The call for gun owners to carry their guns openly in
the normal course of business first drew broad
attention last summer, when opponents of the Obama
administration's health care overhaul began appearing
at town-hall-style meetings wearing sidearms. But in
recent weeks, the practice has expanded as gun owners
in California and other states that allow guns to be
openly carried have tested the law by showing up at
so-called meet-ups, in which gun owners appear at
Starbucks, pizza parlors and other businesses openly
bearing their weapons.
"Our point is to do the same thing that concealed
carriers do," said Mike Stollenwerk, a co-founder of
OpenCarry.org, which serves as a national forum.
"We're just taking off our jackets."
The goal, at least in part, is to make the case for
liberalized concealed weapon laws by demonstrating how
uncomfortable many people are with publicly displayed
guns. The tactic has startled many business owners
like Peet's Coffee and Tea and California Pizza
Kitchen, which forbid guns at their establishments. So
far, Starbucks has resisted doing the same. (Locked,
Loaded, and Ready to Caffeinate, New York Times, March
7, 2010.
http://www.nytimes.com/2010/03/08/us/08guns.html?pagewa
nted=print.)
3. Is Banning Open Carrying of Handguns Unconstitutional?
The Second Amendment to the United States Constitution states,
"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". (U.S. Const., Second Amend.) For many
years, courts have wrestled with the question of whether the
Second Amendment protects the individual's right to own a
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weapon. In United States vs. Cruikshank (1875) 92 U.S. 542, the
Supreme Court held that the Second Amendment guaranteed states
the right to maintain militias but did not guarantee to
individuals the right to possess guns. Subsequently, in United
States vs. Miller (1939), the Court upheld a federal law banning
the interstate transportation of certain firearms. Miller, who
had been arrested for transporting a double-barreled sawed-off
shotgun from Oklahoma to Arkansas, claimed the law was a
violation of the Second Amendment.
The Court rejected Miller's argument, stating:
In the absence of any evidence tending to show that
possession or use of a "shotgun having a barrel of
less than eighteen inches in length" at this time has
some reasonable relationship to the preservation or
efficiency of a well regulated militia, we cannot say
that the Second Amendment guarantees the right to keep
and bear such an instrument. Certainly it is not
within judicial notice that this
weapon is any part of the ordinary military equipment
or that its use could contribute to the common
defense. (United States v. Miller, 307 U.S. 174, 178
(1939).)
For many years following the Supreme Court's decision
in United States vs. Miller, the orthodox opinion
among academics and federal appeals courts alike was
that the Second Amendment to the United States
Constitution did not protect possession of firearms
unrelated to service in the lawfully established
militia. (Merkel, Parker v. District of Columbia and
the Hollowness of the Originalist Claims to Principled
Neutrality, 18 Geo. Mason U. Civil Right L. Journal,
251, 251.)
That changed in June 2008, when the United States Supreme Court
ruled in District of Columbia vs. Heller that a District of
Columbia complete ban on possession of a handgun in the home was
an unconstitutional violation of the Second Amendment.
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(District of Columbia v. Heller (2008) 128 S. Ct. 2783, 2797.)
After a lengthy discussion of the historical context and meaning
of the Second Amendment, the Court stated:
Putting all of these textual elements together, we
find that they guarantee the individual right to
possess and carry weapons in case of confrontation.
This meaning is strongly confirmed by the historical
background of the Second Amendment. We look to this
because it has always been widely understood that the
Second Amendment, like the First and Fourth
Amendments, codified a pre-existing right. The very
text of the Second Amendment implicitly recognizes the
pre-existence of the right and declares only that it
'shall not be infringed.' As we said in United States
v. Cruikshank Ýcitation omitted] 'Ýt]his is not a
right granted by the Constitution. Neither is it in
any manner dependent upon that instrument for its
existence. The Second Amendment declares that it
shall not be infringed ...' " (Heller at 2797.)
However, in the Heller decision, the Supreme Court also
stated:
Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts
routinely explained that the right was not a right to
keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose. For example, the
majority of the 19th-century courts to consider the
question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or
state analogues. Although we do not undertake an
exhaustive historical analysis today of the full scope
of the Second Amendment, nothing in our 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
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schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale
of arms. n26
FOOTNOTES
n26 We identify these presumptively lawful regulatory
measures only as examples; our list does not purport
to be exhaustive. (District of Columbia v. Heller,
128 S. Ct. 2783, 2816-2817 (2008), citations omitted.)
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Therefore, while the Heller decision established that the right
to own a firearm is a personal right, not one limited to
ownership while serving in a "well-regulated militia," it also
held that the government may place reasonable restrictions on
that right such as restricting "carrying firearms in sensitive
places." It is not clear whether the Supreme Court would
include in its list of lawful regulatory measures prohibiting
the open carrying of unloaded handguns in public.
IS A BAN ON OPEN CARRYING OF HANDGUNS IN PUBLIC CONSTITUTIONAL?
4. Arguments in Support
The Peace Officer Research Association of California states:
The practice by individuals and organizations to
"openly carry" firearms in public places in order to
challenge law enforcement and firearm statutes in
California is increasing in frequency. While PORAC
understands that most of these open carry
demonstrations are being done by law abiding citizens,
it places law enforcement and the public in a
precarious and possibly dangerous situation. Most
often, law enforcement is called to the scene based on
a citizen or merchant complaint. When the officer
arrives at the scene, it is their obligation to
question those persons carrying the firearms and to
inquire as to whether the firearm is loaded. Until
that officer has physically seen if the firearm is
loaded, that officer must assume that their lives and
the lives of those around them may be in danger.
Again, these situations are potentially dangerous and
should not occur in a public place wherein any number
of things could go wrong. We believe this bill will
be very helpful in preventing these potentially unsafe
incidents from happening.
(More)
AB 144 (Portantino)
PageT
5. Arguments in Opposition
The National Rifle Association and the California Rifle and
Pistol Association state:
By denying individuals the ability to carry an
unloaded firearm, SB 144 directly violates the
constitutional right to keep and bear arms for
self-defense. We urge you to oppose this attack on the
rights of the law abiding population to carry a
firearm in case of a self-defense emergency should
they so choose.
In addition, we write to notify you that the problems
facing SB 144 are compounded by the current state of
California's concealed carry weapons (CCW) permitting
system. Should AB 144 pass, it will wreak havoc on
California's CCW permitting system. In most areas of
California, CCW permits are rarely issued, and are
usually reserved for those with political clout and
the wealthy elite. Because of this reality, "open
carrying" is the only method available to the
overwhelming majority of law-abiding individuals who
wish to carry a firearm for self-defense. Accordingly,
by banning the open carrying of even unloaded
firearms, SB 144 effectively shuts the door on the
ability of law-abiding Californians to carry a firearm
for self-defense at all.
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