BILL ANALYSIS
AB 2186
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Date of Hearing: April 13, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2186 (De Leon) - As Amended: March 18, 2010
SUMMARY : Creates a misdemeanor punishable by up to one year in
the county jail and/or a fine not more than $1,000 for any
person convicted of a misdemeanor offense of carrying a
concealed or loaded weapon, or allowing another person to bring
a loaded firearm into his or her car, and who, within 10 years
of the conviction, owns, purchases, receives, or has in his or
her possession or under his or her custody or control, any
firearm. The court, on forms prescribed by the Department of
Justice (DOJ), shall notify the DOJ of persons subject to this
requirement.
EXISTING LAW :
1)Provides a person is guilty of carrying a concealed firearm
when he or she does any of the following: 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; carries concealed upon his or
her person any pistol, revolver, or other firearm capable of
being concealed upon the person; or causes to be carried
concealed within any vehicle in which he or she is an occupant
any pistol, revolver, or other firearm capable of being
concealed upon the person. [Penal Code Section 12025(a)(1) to
(3).]
2)States any person who has been convicted of a felony under the
laws of the United States, the State of California, or any
other state, government, or country or of an offense involving
violent use of a firearm, or who is addicted to the use of any
narcotic drug, and who owns, purchases, receives, or has in
his or her possession or under his or her custody or control
any firearm is guilty of a felony. [Penal Code Section
12021(a).]
3)Provides that any person who has been convicted of a felony or
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of an offense involving violent use of a firearm, when that
conviction results from certification by the juvenile court
for prosecution as an adult in an adult court, as specified,
and who owns or has in his or her possession or under his or
her custody or control any firearm is guilty of a felony.
[Penal Code Section 12021(b).]
4)States any person who has been convicted of various
misdemeanors, and who, within 10 years of the conviction,
owns, purchases, receives, or has in his or her possession or
under his or her custody or control, any firearm is guilty of
a public offense, which shall be punishable by imprisonment in
a county jail not exceeding one year or in the state prison;
by a fine not exceeding $1,000; or by both that imprisonment
and fine. The court, on forms prescribed by DOJ, shall notify
DOJ of persons subject to this provision. [Penal Code Section
12021(c).]
5)Provides that it is a misdemeanor 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, knowingly to
permit any other person to carry into or bring into the
vehicle a firearm in violation of existing law. [Penal Code
Section 12034(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Under current
law, certain convictions that do not involve a firearm carry a
10-year prohibition on owning a firearm. Unfortunately,
individuals convicted of misdemeanors involving carrying a
concealed firearm in a motor vehicle, carrying a loaded
firearm or permitting firearms in their vehicles are not
prohibited from owning a firearm. These listed misdemeanors
that involve the illegal possession of a firearm should also
be included in the list of convictions that carry a 10-year
prohibition.
"In support of this policy, a study published in the Journal of
the American Medical Association found that handgun
purchasers, who had prior convictions for non-violent
firearm-related offenses such as carrying a concealed firearm
in public, but none for violent offenses, were at increased
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risk for later violent offenses. This proposal does not limit
the rights of law abiding individuals; rather, it would set a
10-year prohibition on individuals who have been convicted of
illegally possessing a firearm under the three specified Penal
Code sections. Simply stated, if an individual abuses his or
her right to possess a weapon by doing so illegally, he or she
should lose the right to own a gun for a period of time.
2)Second Amendment and Firearms Prohibition : The Second
Amendment to the United States Constitution was ratified in
1791 and 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., 2nd
Amend.) For many years, courts have wrestled with the
question of whether the Second Amendment protects the
individual's right to own a weapon. However, after the
seminal United States Supreme Court ruling in U.S. v. Miller
(1939) 307 U.S. 178, it seemed relatively settled that the
operative term in the Second Amendment is "militia" and that
must be considered in interpreting and applying the Second
Amendment; most scholars on the issue agreed. 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, sought the protection of
the Second Amendment.
The Court rejected Miller's argument, asserting that "we cannot
say that the Second Amendment guarantees the right to keep and
bear such an instrument. . . . As currently interpreted, the
Second Amendment does not pose a significant constitutional
barrier to the enactment or enforcement of gun control laws,
whether passed by Congress, state legislatures or local
governments." [Stephens & Scheb, American Constitutional Law,
Vol. II; Civil Rights and Liberties (hereinafter American
Constitutional Law) 2008, pg. 10.]
"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
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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
(hereinafter Merkel) 18 Geo. Mason U. Civil Right L. Journal
251, 251.]
In June 2008, the United States Supreme Court ruled in District
of Columbia vs. Heller that a District of Columbia ban on
possession of a handgun was an unconstitutional violation of
the Second Amendment. [District of Columbia vs. Heller
(hereinafter Heller) (2008) 128 S. Ct. 2783, 2797.] 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,
92 U.S. 542, 553, 23 L. Ed. 588 (1876), '[t]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.)
3)Possession of a Firearm : Under existing law, there are
instances in which possession of a handgun is illegal. A
felon may not possess a firearm. [Penal Code Section
12021(b).] A person who has been convicted of a specified
crime of violence charged as a misdemeanor may not possess a
firearm for a period of 10 years. [Penal Code Section
12021(c)(1).] A person may not possess a firearm in his or
her car except under specific circumstances, as specified.
[Penal Code Section 12025 (a) and (b).] Generally, a person
may not carry a loaded or concealed weapon in public. [Penal
Code Section 12025(a); Penal Code Section 12031(a)(1).]
However, unless a person is otherwise prohibited, nothing in
existing law states a person may not possess a handgun in his
or her home. Penal Code Section 12026(a) and (b) states:
"[Provisions of law prohibiting possession under specified
circumstances] shall not apply to or affect any citizen of the
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United States or legal resident over the age of 18 years who
resides or is temporarily within this state, and who is not
[otherwise prohibited] who carries, either openly or
concealed, anywhere within the citizen's or legal resident's
place of residence, place of business, or on private property
owned or lawfully possessed by the citizen or legal resident
any pistol, revolver, or other firearm capable of being
concealed upon the person." [Penal Code Section 12026(a).]
4)Argument in Support : According to the Los Angeles City
Attorney's Office , "The purpose of the law regarding
prohibited possessors is to restrict firearm possession to
secure the safety of the state's citizens. However, the list
of enumerated misdemeanors in PC section 12021(c)(1) fails to
include misdemeanor violations PC 12025 (carrying a concealed
weapon in a vehicle), 12031 (carrying a loaded firearm) and
12034(a) (permitting firearms in vehicle). As a result,
persons convicted of these misdemeanor gun crimes are not
prohibited from owning a firearm, while persons convicted of
something like simple assault, which may not have even
involving a firearm, are so prohibited. The rationale for
this bill is simple; defendants who commit crimes involving
firearms should be prohibited from owning, purchasing,
possessing, or receiving a firearm in the same manner that
defendants convicted of similar misdemeanors are so
prohibited."
5)Argument in Opposition : According to the California Outdoor
Heritage Alliance , "Out Alliance opposes AB 2186 because it
imposes an exceedingly harsh penalty (i.e. loss of firearm for
10 years) on licensed hunters and other sportsmen who may only
unintentionally or unknowingly violate certain provisions of
the Penal Code related to loaded firearms. For instance,
there are many areas of the state where the Fish and Game
Commission permits hunting or where hunting has historically
occurred but local ordinances technically preclude the
discharge of a firearm. In such cases, hunters may be cited
under Penal Code Section 12031 for carrying a loaded firearm
in a prohibited area of an unincorporated territory even as
they pursue otherwise lawful hunting activities.
"It should also be noted that loaded firearm violations are one
of the most common hunting-related violations. According to
2008 data from the Department of Fish and Game, there were 274
loaded firearm violations statewide representing the third
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most common type of hunting violation. This is due to a
number of factors, including hunters accidentally leaving
ammunition in their firearms, hunters unknowingly leaving
private lands and entering public roads or other public places
with loaded firearms, and discrepancies between the Penal Code
and Fish and Game Code as to what constitutes a loaded
firearm.
"While such minor violations may warrant citation by law
enforcement, our Alliance believes they should not result in
the severe penalties provided under AB 2186, as those
penalties would effectively preclude someone from
participating in almost all hunting activities for a ten year
period. Please also note that while state game wardens
generally cite hunting violations under provisions of the Fish
and Game Code, wardens and other rural law enforcement
routinely cite hunters under the Penal Code, including the
loaded firearms statutes referenced in the bill."
6)Related Legislation : AB 1498 (De Leon) would have expanded
the list of misdemeanor offenses for which a person may not
possess a firearm for 10 years to include carrying a concealed
weapon in a vehicle; carrying a loaded firearm, as specified;
possession of an assault weapon; and any misdemeanor committed
for the benefit of a criminal street gang, as specified. AB
1498 was held on the Assembly Committee on Appropriations'
Suspense File.
REGISTERED SUPPORT / OPPOSITION :
Support
Legal Community Against Violence
Los Angeles City Attorneys Office
Opposition
California Outdoor Heritage Alliance
California Sportsman's Lobby
Outdoor Sportsmen's Coalition of California
Safari Club International Foundation
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
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