Briefing Report: Victims Of Their Own Success - Gun Control in California

Wednesday, April 23, 2014

“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” – District of Columbia v. Heller in 2008 (554 U.S. 570)

Regulating Constitutional Rights

For decades, California has consistently maintained its place atop the list of states with the most comprehensive and restrictive firearm laws. The state’s code books are packed with voluminous and confusing language intended to limit, ban or otherwise regulate every type of imaginable firearm from “assault weapons” to “zip guns.” Yet, the Democrat controlled Legislature remains unsatisfied. Despite the labyrinth of existing statutes, the accolades of gun control advocates and research suggesting that gun control may not have the desired effect of reducing homicide , they continue to introduce even more complex and restrictive measures aimed at limiting (or some might claim eliminating) the lawful ownership of firearms.

Over the past year, the Legislature has been particularly aggressive in this area, considering a hodgepodge of measures including the “Lifesaving Intelligent Firearms Enforcement (LIFE) Act,” which, among other things, attempts to regulate ammunition and ban all rifles with detachable magazines. This type of extreme legislation has had an unexpected impact: it has turned California into a hotbed of litigation over Second Amendment rights.

As California law regarding gun control has expanded to extremes, so has the number of lawsuits challenging the constitutionality of these provisions. Cases involving microstamping, waiting periods, “handgun ammunition” and “high capacity” magazines are among the dozens of lawsuits seeking to restore firearm rights to the citizens of California and the rest of the country.  One might even suggest that the Democrats in California have become victims of their own success; passing so many draconian measures that they now face legal challenges that may well undermine years of effort. This adage was clearly demonstrated in a recent case, Peruta v. San Diego , which deals with the ability of citizens to carry a weapon for the purpose of self-defense.

Considering Concealed Weapons

In Peruta, the Ninth Circuit considered the case of Edward Peruta, and a number of other individuals in similar circumstances, who were denied a license to carry a concealed weapon. Under California law, each city and county within the state has the power to issue a concealed-carry license if an applicant meets specified requirements set in local policy, such as: completing firearm training, being of “good moral character” and establishing “good cause.” In San Diego County, where Mr. Peruta lived, “good cause” was defined as “a set of circumstances that distinguish that applicant from the mainstream and cause him or her to be placed in harm’s way,” however, “one’s personal safety alone is not considered good cause.”

Wishing to carry handguns solely for the purpose of self-defense, and having no other “good cause,” Mr. Peruta challenged the counties policies in federal court. The district court ruled in favor of San Diego noting that there was an “important and substantial interest in public safety” which trumped Mr. Peruta’s Second Amendment interests. The court additionally pointed out that “as a practical matter, should the need for self-defense arise, nothing restricts the open carry of unloaded firearms and ammunition for instant loading.”  The case might have simply ended there; however, along with Mr. Peruta’s appeal, the Legislature, again pushing constitutional boundaries, passed a ban on the open carry of firearms citing it as “problematic” and “potentially dangerous.” 

Upon reaching the Ninth Circuit Couth of Appeals in 2014, the earlier decision was reversed. Following the precedent set by the U.S. Supreme Court in District of Columbia v. Heller 554 U.S. 570 , the court of appeals held that a law-abiding citizen’s ability to carry a gun outside the home for purpose of self-defense fell within the meaning of the Second Amendment.  Thus San Diego’s policy requiring “good cause” amounted to a “destruction of the Second Amendment right altogether” and impermissibly infringed on the exercise of those rights.

Legislative Excess

While this is clearly a victory for pro-gun advocates, the issue of “bearing arms” in California is a long way from securing any finality. In the Peruta case, Democrat Attorney General Kamala Harris has vowed to “defend the state’s statutory scheme” before the full Ninth Circuit which will undoubtedly cost the state millions of taxpayer dollars. However, California may not have even been in this situation had it not been for the Democrats’ insistence on overly restrictive firearm laws, in particular banning open carry. Judge Diarmuid O’Scannlain, stated on behalf of the Ninth Circuit panel that “We are not holding that the Second Amendment requires the states to permit concealed carry. But the Second Amendment does require that the states permit some form of carry for self-defense outside the home.”

This same type of overreach applies to many of the other California cases.  For example, in July 2013, the California Department of Justice implemented a statutory requirement for “microstamping.”  Under these provisions, all new firearms sold in California must now have a microscopic array of characters that identify the handgun and are imprinted on each cartridge case when the weapon is fired. As a result, firearm manufacturers, along with Second Amendment advocates are now engaged in what will undoubtedly be a long costly battle over a technology that does not improve firearm safety, has never been used by any firearms manufacturer and which academic studies suggest is completely unreliable. In the meantime, new handgun models have been banned from sale in California.

Looking Forward

Given the restrictive content of California’s existing law and the Legislature’s seemingly endless appetite for new gun control proposals, the challenges regarding state and local laws regulating firearms will undoubtedly continue. However, since the United States Supreme Court has recognized the Second Amendment as an individual right for citizens, it is likely Peruta, along with many other similar cases from within California and around the nation, will likely end up as part of a future decision by the high court dealing with the extent to which the Second Amendment allows one to actually “bear” arms. Unfortunately, until that happens California citizens will continue to be saddled with restrictive statutes while facing the inevitable barrage of impractical and unnecessary new legislative proposals which will simply further deny lawful citizens their rights under the guise of improving public safety.

For more information on this report or other public safety issues, contact Eric Csizmar, Senate Republican Office of Policy at (916)651-1501.


1 Kates, Don and Gary Mauser. “Would Banning Firearms Reduce Murder and Suicide?” Harvard Journal of Law and Public Policy, Vol 30 (2013): 650 (http://www.law.harvard.edu/students/orgs/jlpp/Vol30_No2_KatesMauseronline.pdf)

2 Edward Peruta v. County of San Diego. 10-56971 (http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000722)

3 [1] Order Granting Defendants’ Motion for Summary Judgment, Peruta v. County of San Diego, No. 09-2371 (S.D. Cal. 2010)

4 See AB 144 (Portantino)(Ch. 725, Stats. 2011) which was actually the fifth attempt by Democratic members to impose some type of “open carry” prohibition.

5 Heller was a 2008 U.S. Supreme Court decision which established that the Second Amendment “right to keep and bear arms” provides an individual with a right to possess weapons for self-defense purposes, particularly in the home.