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April 20, 2009

Are there any unique California criminal laws that should now be subject to Heller attacks?

As noted here at How Appealing, a unanimous Ninth Circuit panel today held in this opinionthat "the Second Amendment is indeed incorporated against the states."  And at the Volokh Conspiracy, Eugene Volokh already has this remarkable series of follow-up posts:

Of course, Eugene and others who focus on all aspects of Second Amendment litigation will surely have a lot more useful insights and questions about this decision and its aftermath than I ever will.  But, regular readers can perhaps already predict the spin I have: this ruling means that California criminal defendants subject to prosecution for certain very broad state or local gun crimes may now have one less hurdle to overcome when arguing that Heller makes their state prosecution constitutionally problematic.

My spin, however, is predicated on a big assumption --- namely that California has certain very broad state or local gun crimes that Heller might make constitutionally problematic.  This, then, provides the basis for today's bleg question in the title of this post:  can readers report on any unique California criminal laws that should now be subject to Heller attacks in the wake of the Ninth Circuit's ruling?

April 20, 2009 at 05:37 PM | Permalink


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"...can readers report on any unique California criminal laws that should now be subject to Heller attacks in the wake of the Ninth Circuit's ruling?"

California state laws, no. Not sure about local. Looking into San Francisco ordinances is like opening the container that's been in your fridge so long you don't know how long.

Posted by: Kent Scheidegger | Apr 20, 2009 6:05:34 PM

Perhaps the banned handgun list, especially given that the exact model Heller was about is on the CA list?

Not uniquely Californian, but I believe CA is the source for that bit of nonsense.

Posted by: Soronel Haetir | Apr 20, 2009 7:14:56 PM

Cal. Penal code 12020(a)(1) makes it a misdemeanor to manufacture or possess various irregular weapons, including nunchaku, billy clubs, and short-barreled shotguns and rifles. However, anyone challenging that provision would have to establish that those are protected "arms" within the meaning of the Second Amendment, which is far from obvious.

Posted by: anon attorney | Apr 20, 2009 8:16:42 PM

anon attorney,

didn't Miller establish that short-barreled shotguns are not protected firearms under the Second Amendment?

Posted by: Mike Rivers | Apr 20, 2009 10:43:08 PM


If Miller were read honestly the answer is no. The Miller ruling sent the case back to district court to get an answer to that question, however Miller was already dead by the time the opinion issued so there were no further proceedings. Contrary to statements in both the Heller majority and Stevens dissent Miller was never actually convicted of an NFA violation because the district court had ruled for Miller.

And then the test Miller elucidated basically got ignored by everyone else.

Posted by: Soronel Haetir | Apr 20, 2009 11:41:59 PM

There might be one on the way.

California gun laws could get tighter

On the tenth anniversary of the deadly high school shootings in Columbine, Colo., California lawmakers announced new efforts to keep guns and ammunition away from people who are barred from possessing those items.

Posted by: George | Apr 21, 2009 2:42:55 AM

Does this mean that the Second Amendment has now been incorporated through the 14th Amendment as applied in all states? I have a case pending inthe NC Court of Appeals where a guy with a 20 year drug possessin felony had a dozen inoperable guns locked up in a gun cabinet in his bedroom. The Court is considering the case today and I am thinking of sending up Nordyke as supplemental authority on the Second Amendment claim I made in the case. Normally, we don't view federal circuit decisions as binding authority on state appellate courts but this one strikes me as different, particularly since the Nordyke court construed this as a question of first impression.

Thoughts anyone?

bruce cunningham

Posted by: bruce cunningham | Apr 21, 2009 11:26:58 AM

Well, yes, of course you should send it up to support the proposition "that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments." (Nordyke, at 4496.) Of course, that's not going to help your client unless you find a way around "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons...." (Heller, at 54.)

Posted by: Kent Scheidegger | Apr 21, 2009 12:46:38 PM

bruce, as everyone knows, I'm not a lawyer, but out of curiosity, since the prior is 20 years old and now there is a constitutional right to own a gun, what if you argued there should be a balancing test? On the one scale, the right to own guns, on the other, the state's interest in banning guns from those who were once unlawful. For one example, in civil commitment law the state must prove dangerousness and civil commitment is not punishment or imprisonment. In other words, the state would have to prove your client is currently dangerous and should not process weapons. How many felons are currently dangerous or more prone to violence than the average Joe-sixpack gun owner? Of course it may depend on the circumstances leading to the police finding the guns. If, for example, a domestic dispute with any violence, it would not fly. Ideally, it would an anonymous tip and no other reason to suspect criminal activity or dangerousness. Of course, the government could argue your client was unlawfully possessing guns, and is therefore still criminal, unless there is some question of if your client understood the law. Ideally, the best test case would be a long ago non-violent felon who wants to buy a gun for self protection but can't.

Posted by: George | Apr 21, 2009 1:29:25 PM

Does this mean that the Second Amendment has now been incorporated through the 14th Amendment as applied in all states?

Not in all states. It is in the 9th Circuit. It's not in the 2d Circuit (see Maloney v. Cuomo). You're in the 4th Circuit where, I assume, it's still an open question.

As it's a case of first impression in your court, Nordyke is almost certainly worth sending up for its persuasive value, at least--Judge O'Scannlain does an extensive analysis of the incorporation question.

As Mr. Scheidegger notes, however, the caveat in Heller probably remains a problem.

Posted by: anonymous | Apr 21, 2009 5:41:45 PM

thanks. folks. Kent, it seems to me that the "caveat" by Scalia is the purest of dictum. I'm surprised that he included a sentence which strikes me as essentially a prohibited advisory opinion. Also, I think what we're talking about here is a question of burden of proof and presumptiveness of constitutionality, not some blanket statement about not "casting doubt." Not sure what that means.

bruce cunningham

Posted by: bruce cunningham | Apr 22, 2009 8:19:49 AM

Yes, it is dictum, but most judges will not rule contrary to an unequivocal statement in a Supreme Court opinion, even if it is dictum. How many times in this blog has our host expressed frustration that judges are not using Heller to attack sentencing laws?

Posted by: Kent Scheidegger | Apr 23, 2009 1:00:28 PM

The main California firearm laws that need to be repealled are the approved handgun roster from the CA-DOJ, and the ban on semi-auto rifles that look like military rifles. Right now we only get bolt action rifles, pump shotguns and revolvers. Same thing they had 100 years ago.

12276. As used in this chapter, "assault weapon" shall mean the following designated semiautomatic firearms:

Full list of contraban firearms is not listed below due to length of list. (everything that everyone else in the country has basically is banned in CA)

(a)...(5) Colt AR-15 series..... AKs etc.
(e) The term "series" includes all other models that are only variations, with minor differences, of those models listed in subdivision (a), regardless of the manufacturer.

The California State Supreme Court ruled on June 28, 2001 (Harrott vs
Kings County) that, basically, in order for a firearm to be considered a "series" AR-15, the Attorney General must specifically list it by make and model.....

12276.1. (a) Notwithstanding Section 12276, "assault weapon" shall also mean any of the following:
(1) A semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and any one of the following:
(A) A pistol grip that protrudes conspicuously beneath the action of the weapon.
(B) A thumbhole stock.
(C) A folding or telescoping stock.
(D) A grenade launcher or flare launcher.
(E) A flash suppressor.
(F) A forward pistol grip.
(2) A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.
(3) A semiautomatic, centerfire rifle that has an overall length of less than 30 inches.
(d) The following definitions shall apply under this section:
(1) "Magazine" shall mean any ammunition feeding device.
(2) "Capacity to accept more than 10 rounds" shall mean capable of accommodating more than 10 rounds, but shall not be construed to include a feeding device that has been permanently altered so that it cannot accommodate more than 10 rounds.

Most rifles should have a pistol grip and a detachable magazine. As for bayonet lugs and grenade launchers they are kinda useless against home invasion, and you are probably not going to charge a deer with a bayonet. I don't think we should be importing firearms from outside the U. S. America makes the best firearms. America first!

Posted by: Curt | Apr 23, 2009 1:40:23 PM

Mr Cunningham,

If you can get a minute - I posted a question for you in regards to Sex Offender Registration issues. I'm hoping you may be able to clarify a few issues my husband has been having here - and he is looking at a possible 3-6 yrs +

Thank You

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