Ban on possession on a firearm by ex-felon is constitutional

People v. Bey (Cal. Ct. App., Jan. 16, 2025, No. B335964) 2025 WL 209939, at *1

Summary: Bey appealed his conviction of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); and carrying a loaded firearm in public (§ 25850, subd. (a).  Bey claimed it violated his Second Amendment rights; and California’s concealed carry license laws are unconstitutional under New York State Rifle & Pistol Ass’n v. Bruen (2022) 597 U.S. 1, 10, (Bruen). The Court disagreed and affirmed.

Felon in Possession of a Firearm Conviction Does Not Violate His Second Amendment Rights

Bey asserts the statute prohibits conduct that is protected by the Second Amendment, and the government cannot support that banning possession of firearms by felons who have served their terms of incarceration is consistent with historical tradition.

Section 29800, subdivision (a)(1) prohibits any person who has been convicted of a felony to possess a firearm. Although this statute punishes conduct that is presumptively protected by the Second Amendment, the prohibition is consistent  with historic tradition. (See Anderson, supra, 104 Cal.App.5th at pp. 586, 588.)

In District of Columbia v. Heller (2008) 554 U.S. 570, 635, (Heller), the Supreme Court struck down the District of Columbia’s prohibition on possessing usable handguns in the home. However, while holding “that the Second Amendment conferred an individual right to keep and bear arms”, the court recognized that “[l]ike most rights, the right secured by the Second Amendment is not unlimited” The Heller  court emphasized, “nothing in [its] 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.”

The Supreme Court recognized that “the Second Amendment is [not] a regulatory straightjacket” (Bruen, supra, 597 U.S. at p. 30) and stressed that “nothing in our analysis should be interpreted to suggest the unconstitutionality of … licensing regimes” that “require applicants to undergo a background check or pass a firearms safety course” because these “are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’ ”

In United States v. Rahimi (2024) 602 U.S. 680, 690–693 (Rahimi) the Supreme Court applied its analysis from Bruen to reject a Second Amendment challenge to a federal statute (18 U.S.C. § 922(g)(8)) prohibiting possession of a firearm by a person subject to a domestic violence restraining order. The Rahimi court concluded that: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”  And “many such prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.’ ”

California Courts of Appeal have consistently upheld section 29800 against constitutional challenge.

In Alexander, supra, 91 Cal.App.5th at pages 473–474, the court applied the Bruen analytical framework to conclude that California’s statutes barring felons from possessing firearms (§ 29800, subd. (a)(1)) and ammunition (§ 30305, subd. (a)(1)) do not violate the Second Amendment. The court reasoned that possession of firearms and ammunition by felons—is not covered by the Second Amendment, “because according to Heller and Bruen only law-abiding citizens are included among ‘the people’ whose right to bear arms is protected by the Second Amendment.”

Bey’s Conviction for Carrying a Loaded Firearm in Public Is Valid

Relevant law

Section 25850, subdivision (a) provides that “[a] person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place.”

Section 25850 is the enforcement mechanism of a regulatory regime that grants licenses to those who may lawfully carry firearms and withholds licenses from those who may not.” The limitations set by sections 25850 and 25400 do not apply to an individual who is licensed to carry a concealed firearm (§§ 25655, 26010), one of “numerous exceptions” to the general prohibitory scheme. (Peruta, supra, 824 F.3d at pp. 925–926.)

California’s concealed carry licensing regime is governed by sections 26150 through 26235. Am application for a concealed carry license required proof of “good cause” for issuance of the license, and licensing authorities retained discretion on whether to issue a license. Effective January 1, 2024, the Legislature amended sections 26150 and 26155 by providing that licensing authorities “shall issue” (instead of “may issue”) licenses, and by eliminating the “good cause” requirement, among other changes. The former statutory scheme  is the subject of Bey’s Appeal.

D.L., supra, 93 Cal.App.5th at pages 163–164, determined that the “good cause” provisions in former sections 26150 and 26155 are severable from the remainder of California’s licensing requirements. The Legislature’s recent amendments to the statutes, including its deletions of the “good cause” provisions, demonstrate just how severable the provisions were. Given the severability of the former “good cause” provisions, facial invalidation of California’s concealed carry licensing scheme is unwarranted.

Also, the Supreme Court has recognized the general viability of licensing regimes with “ ‘narrow, objective, and definite standards’ ” that are “designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’ ” (Bruen, supra, 597 U.S. at p. 38, fn. 9.) “California’s firearm licensing framework—and the criminal penalties under section 25850—remain valid.” (D.L., supra, 93 Cal.App.5th at p. 165, 310 Cal.Rptr.3d 562.)

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