BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
1
5
2
AB 1527 ( Portantino) 7
As April 10, 2012
Hearing date: June 26, 2012
Business and Professions Code; Penal Code
SM:dl
OPENLY CARRYING LONG GUNS
HISTORY
Source: California Police Chiefs Association; Peace Officer
Research Association of California
Prior Legislation: AB 144 (Portantino) - Chapter 725, Statutes
of 2011
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: California Chapters of the Brady Campaign Against
Gun Violence; California Peace Officers Association;
Coalition Against Gun Violence; Los Angeles Sheriff's
Department; Women Against Gun Violence; Law Center to
Prevent Gun Violence
Opposition:California Rifle and Pistol Association; National
Association for Gun Rights; Save Our State; National
Rifle Association of America
(More)
AB 1527 (Portantino)
Page 2
Assembly Floor Vote: Ayes 44 - Noes 29
KEY ISSUES
SHOULD IT BE A MISDEMEANOR, PUNISHABLE BY UP TO SIX MONTHS IN A
COUNTY JAIL, OR A FINE OF UP TO $1,000, OR BOTH, FOR A PERSON TO
CARRY AN UNLOADED FIREARM THAT IS NOT A HANDGUN ON HIS OR HER
PERSON OUTSIDE A VEHICLE WHILE IN AN INCORPORATED CITY OR CITY
AND COUNTY, EXCEPT AS SPECIFIED?
(CONTINUED)
SHOULD THIS OFFENSE BE PUNISHABLE BY UP TO ONE YEAR IN THE COUNTY
JAIL, OR A FINE OF UP TO $1,000, OR BOTH, IF THE FIREARM AND
UNEXPENDED AMMUNITION CAPABLE OF BEING FIRED FROM THAT FIREARM ARE
IN THE IMMEDIATE POSSESSION OF THAT PERSON AND THE PERSON IS NOT IN
LAWFUL POSSESSION OF THAT FIREARM?
PURPOSE
The purpose of this bill is to (1) make it a misdemeanor,
punishable by up to six months in a county jail, or a fine of up
to $1,000, or both, for a person to carry an unloaded firearm
that is not a handgun on his or her person outside a vehicle
while in an incorporated city or city and county; (2) make this
offense punishable by up to one year in the county jail, or a
fine of up to $1,000, or both, if the firearm and unexpended
ammunition capable of being fired from that firearm are in the
immediate possession of that person and the person is not in
lawful possession of that firearm; (3) establish numerous
exemptions from this prohibition; (4) create an exemption from
the existing prohibition against carrying an exposed and
unloaded handgun outside a vehicle in a public place for a
(More)
AB 1527 (Portantino)
Page 3
licensed hunter while actually engaged in the training of a dog
for the purpose of using the dog in hunting that is not
prohibited by law, or while transporting the firearm while going
to or returning from that training; and (5) create an exemption
from the existing prohibition against carrying an exposed and
unloaded handgun outside a vehicle in a public place for a
person in compliance with specified provisions related to
carrying a firearm in airports and commuter passenger terminals,
as specified.
Existing law makes it a misdemeanor punishable by imprisonment
in the county jail not to exceed six months, by a fine not to
exceed $1,000, or both, for any person to carry an exposed and
unloaded handgun outside a vehicle upon his or her person while
in any public place or on any public street in an incorporated
city, or in any public place or public street in a prohibited
area of an unincorporated county. (Penal Code § 26350(a)(1).)
Existing law makes the crime of openly carrying an unloaded
handgun punishable by imprisonment in the county jail not to
exceed one year, or by a fine not to exceed $1,000, or by that
fine and imprisonment if the handgun and unexpended ammunition
capable of being discharged from that firearm are in the
immediate possession of the person and the person is not the
registered owner of the firearm. (Penal Code § 26350(a)(2).)
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. This offense is a misdemeanor,
punishable by up to one year in the county jail, a fine of up to
$1,000, or both, unless various aggravating circumstances are
present, in which case this offense it is punishable as a
felony. (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
(More)
AB 1527 (Portantino)
Page 4
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:
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
(More)
AB 1527 (Portantino)
Page 5
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).)
This bill makes it a misdemeanor punishable by imprisonment in a
county jail not to exceed six months, or by a fine not to exceed
$1,000, or both, for a person to carry an unloaded firearm that
is not a handgun on his or her person outside a vehicle while in
an incorporated city or city and county, and makes this offense
punishable by imprisonment in the county jail not exceeding one
year, or by a fine not to exceed $1,000, or both, if the firearm
and unexpended ammunition capable of being fired from that
firearm are in the immediate possession of that person and the
person is not in lawful possession of that firearm.
This bill states that the sentencing provisions of this
prohibition shall not preclude prosecution under other specified
provisions of law with a penalty that is greater.
This bill states that the provisions of this prohibition 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 the provisions relating to the carrying
of an unloaded firearm that is not a handgun on his or her
person outside a vehicle in specified areas does not apply under
any of the following circumstances:
By a person when done within a place of business, a
place of residence, or on private property, or if done with
(More)
AB 1527 (Portantino)
Page 6
the permission of the owner or lawful possessor of the
property.
When the firearm is either in a locked container or
encased and it is being transported directly from any place
where a person is not prohibited from possessing that
firearm and the course of travel includes only those
deviations that are reasonably necessary under the
circumstances.
If the person possessing the firearm reasonably believes
that he or she is in grave danger because of circumstances
forming the basis of a current restraining order issued by
a court against another person or persons who has or have
been found to pose a threat to his or her life or safety,
as specified.
By any peace officer or by an honorably retired peace
officer if that officer may carry a concealed firearm, as
specified.
By any person to the extent that person is authorized to
openly carry a loaded firearm as a member of the military
of the United States.
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 or agent of that
business.
By a duly authorized military or civil organization, or
the members thereof, while parading or rehearsing or
practicing parading, when at the meeting place of the
organization.
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 the target ranges or
incident to the use of a handgun at that target range.
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.
By a member of an organization chartered by the Congress
(More)
AB 1527 (Portantino)
Page 7
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.
Within a licensed gun show.
Within a school zone, as defined, with the written
permission of the school district superintendent, his or
her designee, or equivalent school authority.
When in accordance with the provisions relating to the
possession of a weapon in a public building or State
Capitol.
By any person while engaged in the act of making or
attempting to make a lawful arrest.
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, making,
repair, transfer, pawn, or the use of firearms, or related
to firearms training.
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 the participant
or authorized employee or agent is at that production
event.
Incident to obtaining an identification number or mark
assigned for that handgun from the Department of Justice
(DOJ).
At any established public target range while the person
is using that firearm upon the target range.
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.
Complying with specified provisions of law relating to
the regulation of firearms.
Incident to, and in the course and scope of, training of
(More)
AB 1527 (Portantino)
Page 8
or by an individual to become a sworn peace officer as part
of a course of study approve by the Commission on Peace
Officer Standards and Training.
Incident to, and in the course and scope of, training of
or by an individual to become licensed to carry a concealed
weapon.
Incident to and at the request of a sheriff or chief or
other head of a municipal police department.
If 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 firearm that is not a handgun is to be
auctioned or otherwise sold for the nonprofit public
benefit mutual benefit corporation; and
o The unloaded firearm that is not a handgun is to be
delivered by a licensed firearms dealer.
By a person who has permission granted by Chief
Sergeants at Arms of the State Assembly and the State
Senate to possess a concealed firearm within the State
Capitol.
By a person exempted from the prohibition against
carrying a loaded firearm within the Governor's Mansion.
By a person who is responsible for the security of a
public transit system who has been authorized by the public
transit authority's security coordinator, in writing, to
possess a weapon within a public transit system.
On publicly owned land, if the possession and use of a
handgun is specifically permitted by the managing agency of
the land and the person carrying the handgun is the
registered owner of the handgun.
The carrying of an unloaded firearm that is not a
handgun by a person who holds a specified permit.
By a licensed hunter while actually engaged in training
a dog for the purpose of using the dog in hunting that is
not prohibited by law, or while transporting the firearm
(More)
AB 1527 (Portantino)
Page 9
while going to or returning form the training.
By a person in compliance with specified provisions
related to carrying a firearm in an airport.
By a person who is engaged in the business of
manufacturing ammunition and who is licensed to engage in
that business, or an authorized representative or
authorized agent of the person while the firearm is being
used in the lawful course and scope of the licensee's
activities, as specified.
This bill states that, for purposes of the prohibition on openly
carrying an unloaded firearm that is not a handgun , the
definition of "firearm" does not include any antique firearm.
This bill exempts security guards and retired peace officers who
are authorized to carry an unloaded firearm that is not a
handgun from the prohibition against possessing a firearm in a
school zone.
This bill exempts from the prohibition against carrying an
exposed and unloaded handgun outside a vehicle in a public place
a licensed hunter while actually engaged in the training of a
dog for the purpose of using the dog in hunting that is not
prohibited by law, or while transporting the firearm while going
to or returning from that training.
This bill exempts from the prohibition against carrying an
exposed and unloaded handgun outside a vehicle in a public place
a person in compliance with specified provisions related to
carrying a firearm in airports and commuter passenger terminals.
This bill makes conforming technical changes.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
(More)
AB 1527 (Portantino)
Page 10
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
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,
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
(More)
AB 1527 (Portantino)
Page 11
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. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
(More)
AB 1527 (Portantino)
Page 12
AB 1527 makes it a misdemeanor for carrying an unloaded long
gun in public, vehicle or street in incorporated communities
in California and in unincorporated communities that meet
certain criteria. The bill contains specific exemptions for
law enforcement personnel as well as licensed hunters. It is a
follow-up to AB 144 of last year that banned the open carry of
handguns.
Open carry creates a potentially dangerous situation when
police officers respond to calls from the public when
confronted with someone carrying a rifle or shotgun. It's a
bad situation for everyone - the police, the gun owner and
innocent bystanders who could be injured by this risky
behavior. In addition, it wastes time, money and attention
when police have to roll-out and respond to these unnecessary
calls.
If AB 1527 becomes law, violations are punishable by six
months in county jail and a fine up to $1,000. The measure is
backed by the California Brady Campaign Against Gun Violence,
PORAC- Peace Officers Research Association of California and
the California Police Chiefs Association which refers to AB
1527 as "one of our most important bills in this session".
"This bill just makes sense. Sooner or later, somebody's going
to get hurt. If you see somebody walking around a mall or
main street with a shotgun, it's pretty intimidating. It's
unnecessary and it is just going to lead to trouble. I had
hoped that the earlier measure banning open carry of handguns
would solve this problem but when long gun advocates attended
a police fundraiser it became clear that there was more work
to do. When law enforcement asks the legislature for help
because of a public safety risk, we should help them.
Open carry advocates are now taking the opportunity to openly
carry rifles and shotguns in urban areas of the state.
Invariably, these demonstrations result in a call to the
police or sheriff's departments to respond. This causes the
waste of police time and assets besides causing an unnecessary
(More)
AB 1527 (Portantino)
Page 13
risk to public safety. Attached are several articles that
detail such incidences. In one case open carry advocated
carried long guns to a city police department fund raiser.
In a Redondo Beach protest in May, an open carry advocate was
reported carrying a 12 gauge shotgun through the Redondo Beach
pier and adjoining Veterans Park. In the attached photographs
you can clearly see that at least 4, maybe 5 or more Redondo
Police officers responded to this open carry. In a time when
many city and county police and sheriff departments are facing
severe budget cuts, our law enforcement agencies shouldn't be
squandering scarce resources following open carry advocates
around incorporated areas of the state.
2. The Open-Carrying of Rifles and Shotguns in Public
In response to the enactment of AB 144 (Portantino) -1 Chapter
725, Statutes of 2011, some gun rights advocates have shifted
their focus to openly carrying rifles and shotguns in public
places. This bill is intended to outlaw that practice. Last
October the San Francisco Chronicle reported:
SAN LEANDRO -- Now that a new California law banning
the open carrying of pistols is loaded for action, the
big guns are coming out.
Rifles, that is. And shotguns.
Gun owners who are upset that the anti-carry state law
will go into effect Jan. 1 intend to start packing
their biggest heat in open as often and as visibly as
they can, beginning with a gathering in San Leandro
today.
They expect at least 50 gun-toting Second Amendment
enthusiasts to show up on Hesperian Boulevard at
Bayfair mall from noon to 1 p.m. From target-plinking
.22-caliber rifles and .270-caliber deer-hunting
weapons to 12-gauge shotguns that can blow a gaping
hole in a wall - expect any or all long guns that are
(More)
AB 1527 (Portantino)
Page 14
legal to own in California, organizers say.
The point is to be provocative enough to spur action
by the courts or legislators to repeal the new law and
restore the right to pack unloaded pistols in the
open.
"People are really upset about this law, and if they
won't let us carry handguns, we just have to defend
ourselves with the next thing available," said
co-organizer Yih Chau Chang of Dublin, who intends to
bring his unloaded pump-action shotgun to today's
rifle meet-up. "This just shows that here in
California, our gun-control laws have gotten out of
control."
Gun opponents say this new tactic, which follows last
year's open-carry displays of handguns by many of
those now promoting rifles, is reprehensible.
There will be change, all right, they say - but not
the kind the gun advocates want.
'Alarms the public'
"Actually, this kind of event is an invitation to ban
long rifles in public now," said Juliet Leftwich,
legal director of Legal Community Against Violence, a
gun-control group founded in San Francisco in response
to the 101 California St. massacre of 1993 in which
nine people died.
"Open carrying of any guns, pistols or rifles alarms
the public and it wastes law enforcement resources
while they have to monitor the people carrying them,"
Leftwich said. "It would be best if it were totally
banned."
Motivation for tactic
The law spurring this new tactic is AB144, which Gov.
(More)
AB 1527 (Portantino)
Page 15
Jerry Brown signed Oct. 10. Introduced in January
right after the shooting in Tucson that left six dead
and 13 wounded including Rep. Gabrielle Giffords,
D-Ariz., the law forbids anyone from openly carrying
handguns in public.
Previously, Californians could tote handguns any way
they wished, in holsters or in their hands, as long as
they were unloaded. Violation of the new law is a
misdemeanor punishable by up to a year in prison.
California is the fifth state, including Florida and
Texas, to outlaw openly carrying pistols. The District
of Columbia also forbids it. Thirty-three states allow
unrestricted open carry, and 12 require permits.
Gun advocates say the California law is doomed
whenever a lawsuit gets filed - and they say one will
be - because two federal court rulings in the past
year asserted the legality of open-carry rights. The
rulings upheld rejections of several individual
concealed-weapons-permit applications in San Diego and
Yolo counties, saying the old open-carry law negated
the need to pack a hidden gun.
Gun-control advocates say the gun-rights crowd
shouldn't pin any hopes on those rulings.
They say the danger is too acute to play politics
with, citing figures from the Brady Center to Prevent
Gun Violence showing that America's annual toll of
30,000 gun-related deaths far outstrips those of any
other Western country. Britain, for example,
experiences about 50 gun-related deaths a year.
Seal Beach rampage cited
Gun advocates say those same statistics just prove
their point.
(More)
AB 1527 (Portantino)
Page 16
"What you will see if you restrict people's gun rights
is more of what happened in Seal Beach last week,
where people don't have the right to defend
themselves," said Jeff Dunhill, an open-carry
organizer who spent this week hunting elk in Colorado.
He was referring to a rampage in which eight people
were shot to death at an Orange County beauty salon,
allegedly by a man involved in a child-custody battle
with one of the victims.
"They are arguing that patrons at the nail salon in
Seal Beach should have had firearms with them?" said
Leftwich. "That's crazy."
(Handgun Law Riles Activists - They'll Carry Rifles, San
Francisco Chronicle, Saturday, October 22, 2011,
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/10/21/BAVU1
LKGRM.DTL)
3. Is Banning Open Carrying of Rifles and Shotguns
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
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:
(More)
AB 1527 (Portantino)
Page 17
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.
(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
(More)
AB 1527 (Portantino)
Page 18
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.)
(More)
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
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.)
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 rifles and shotguns in public.
IS A BAN ON OPEN CARRYING OF RIFLES AND SHOTGUNS IN PUBLIC
(More)
AB 1527 (Portantino)
Page 20
CONSTITUTIONAL?
4. Argument in Support
The Peace Officer Research Association states:
The practice by individuals and organizations to
"openly carry" firearms in public places in order to
challenge law enforcement and firearms 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 possible 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.
5. Argument in Opposition
The National Association for Gun Rights states:
Rifles and shotguns are hardly the weapons of choice
for the common criminal. This is yet another attempt
to prohibit something because it "looks scary."
In a recent press release, Assemblyman Anthony
Portantino admitted this bill is merely retaliation
AB 1527 (Portantino)
Page 21
against law-abiding citizens who chose to peacefully
exercise their First Amendment right of free speech in
support of their Second Amendment rights after passage
of last year's Open Carry Ban.
Punishing citizens for engaging in lawful public
demonstration is an outrageous abuse of power, further
infringing on their constitutionally protected rights.
Currently twenty-eight states allow for the Open Carry
of firearms in some form without a permit, and an
additional thirteen allow Open Carry with a permit.
Eight states and the District of Colombia ban open
carry; half of which are remnants of the "Jim Crow"
era where the intent was to prevent African-Americans
from possessing firearms.
Open Carry should be viewed in the same light as Ý ]
concealed carry: if a person is legally able to
purchase a firearm, it is not the place of the state
to deny their right to carry it.
***************