California’s concealed carry licensing framework is Constitutional

In re D.L. (Cal. Ct. App., July 3, 2023, No. A164432) 2023 WL 4342391, at *1

Summary: D.L., a minor at the time of his offense, appealed his conviction for possession of a loaded firearm in San Francisco. (Pen. Code, § 25850, subd. (a).) Citing the United States Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen (2022) ––– U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 (Bruen), D.L. argues that section 25850 must be unconstitutional on its face as a result of its relationship to California’s laws for obtaining a license to carry a concealed weapon. The Court rejected  D.L.’s contention and affirmed.

California’s “good cause” requirement for a concealed carry license

Before Bruen, California required an applicant for a concealed carry license to show “good cause” exists for the license, usually by establishing a specific need to carry a gun for self-defense. (§§ 26150, subd. (b)(2), 26155, subd. (b)(2).) D.L. claims  that this “good cause” requirement is substantially similar to the “proper cause” requirement for an unrestricted firearm license in New York, which the United States Supreme Court struck down in Bruen. (Bruen, supra, 142 S.Ct. at p. 2156.) D.L. argued that, since California’s “good cause” licensing requirement was unconstitutional, “it was also unconstitutional to punish persons who carried a firearm in public solely because they were unlicensed.”

The Attorney General concedes that California’s “good cause” requirement for a concealed carry license did not survive Bruen. Within a day of the Bruen decision, the Attorney General instructed firearm-permitting agencies that proof of “good cause” is no longer required in order for an applicant to receive a concealed carry license. But the Attorney General argues that the “good cause” requirement is severable from the rest of the requirements for obtaining a concealed carry license, preserving both  California’s regulatory framework for gun possession and D.L.’s conviction. D.L. responds that California’s concealed carry licensing statutes (§§ 26150, 26155) can be construed constitutionally without the “good cause” requirement going forward, but severability cannot be applied retroactively to cure the harm from pre-Bruen convictions based on unlicensed possession.

The Court concluded  that the “good cause” requirement in sections 26150 and 26155 is severable from the balance of California’s concealed carry licensing framework. It remains constitutional to punish someone without a license for carrying a loaded gun in public.

In 2008, the United States Supreme Court identified a constitutionally protected right to possession of handguns in the home in District of Columbia v. Heller (2008) 554 U.S. 570, 635 (Heller). Under District of Columbia law, it was a crime to carry an unregistered firearm, and the registration of handguns was prohibited.  The District of Columbia required its residents to keep their lawfully owned and registered firearms “ ‘unloaded and dissembled or bound by a trigger lock or similar device’ unless they are located in a place of business or are being used for lawful recreational activities.”

The majority in Heller found that the Second Amendment “guarantee(s) the individual right to possess and carry weapons in case of confrontation,” and that this meaning was “strongly confirmed by the historical background of the Second Amendment.”  The Heller majority interpreted the phrases “keep arms” and “bear arms” as “unconnected with service in a militia” and inclusive of “ ‘self-preservation,’ ” or “the natural right of defense ‘of one’s person or house.’ ” It concluded that the District of Columbia “handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for [the] lawful purpose” of “self-defense.” The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.”

The Bruen majority stated that, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply promote an important interest. The  government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’ ”

California’s Statutory Framework for Gun Safety

Criminal Prohibitions in Section 25850

Section 25850 provides that a person “is guilty of the offense of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.” (§ 25850, subd. (a).) Section 25850 does not criminalize possession of a firearm, but rather prohibits carrying a loaded firearm. It also does not criminalize possession in any public place, but rather applies to a public place or street in an incorporated city or in a prohibited area of an unincorporated territory.

A person properly licensed to carry a firearm will not be criminally liable just for possessing one. (§ 26010.) Section 25850 “does not apply to the carrying of any handgun by any person as authorized pursuant to Chapter 4 (commencing with Section 26150) of Division 5,” which are provisions for applying for a license to carry a firearm.4 (§ 26010.)

 Minors and Firearms

California law does not provide for  a minor relying on a firearm for self-defense. California bans minors, like D.L., from even possessing a handgun or a semiautomatic centerfire rifle—let alone obtaining a concealed carry license. (§ 29610, subds. (a), (b).) A small number of exceptions exist to that general rule.

Concealed Carry Licenses in California

California’s procedures for obtaining a license to carry a concealed firearm are set out in sections 26150 (for applications made to a sheriff’s office) and 26155 (for applications made to a police department).

The requirement that an applicant show “good cause” for issuance of a concealed carry license is the second of four conditions set out in the licensing statutes. Section 26150 provides, in relevant part: “(a) When a person applies for a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person, the sheriff of a county may issue a license to that person upon proof of all of the following:

(1) The applicant is of good moral character.

 (2) Good cause exists for issuance of the license.

 (3) The applicant is a resident of the county or a city within the county, or the applicant’s principal place of employment or business is in the county or a city within the county and the applicant spends a substantial period of time in that place of employment or business.

 (4) The applicant has completed a course of training as described in Section 26165.

 (b) The sheriff may issue a license under subdivision (a) in either of the following formats:

 (1) A license to carry concealed a pistol, revolver, or other firearm capable of being concealed upon the person.

 (2) Where the population of the county is less than 200,000 persons according to the most recent federal decennial census, a license to carry loaded and exposed in only that county a pistol, revolver, or other firearm capable of being concealed upon the person.” (§ 26150, subds. (a)–(b).)

An applicant for a license is fingerprinted and must pass a background check.6 (§§ 26185, subd. (a), 26195, subd. (a).) The background check is intended to confirm the applicant is not disqualified from possessing or owning a firearm (for example, due to prior felony convictions or past acts of domestic violence). (§§ 26185, subd. (a)(2), 26195, subd. (b)(1), 29800, 29805.)

The firearm training program permits an applicant to obtain a “Firearm Safety Certificate” to be able to purchase a gun; the certificate must be shown to a licensed dealer before being able to make the purchase. (§§ 26840, 27540, subd. (e).)7 For new license applicants, the training course must be between 8 and 16 hours long, and include “instruction on firearm safety, firearm handling, shooting technique, and laws regarding the permissible use of a firearm” as well as “live-fire shooting exercises on a firing range and shall include a demonstration by the applicant of safe handling of, and shooting proficiency with, each firearm that the applicant is applying to be licensed to carry.” (§ 26165, subds. (a)(1)–(3).)

Analysis of Section 25850 After Severing “Good Cause” Licensing Requirement

The  “good cause” requirement from sections 26150 and 26155 is severable, California’s firearm licensing framework—and the criminal penalties under section 25850—remain valid.

California courts have recently rejected facial challenges to the constitutionality of other statutes regulating firearm possession, including possession of firearms and ammunition by felons. A felon is, by definition, “someone who has committed a crime and as such is not law-abiding,” and so felons “are not included among the class of people afforded rights under the Second Amendment.”

Bruen did not expand “the categories of people who may lawfully possess a gun,” and that those convicted of a felony are squarely in a category where gun possession is off-limits due to their prior criminal conduct. The remaining concealed carry licensing requirements, after severing the “good cause” condition, are consistent with the goals of ensuring Californians who carry firearms are responsible and law-abiding, live in or have substantial contact with the licensing jurisdiction (since local law enforcement is tasked with licensee compliance), and know how to safely handle a gun. Section 25850 is enforceable and is not unconstitutional on its face. It does not pose a present total and fatal conflict with applicable constitutional prohibitions.

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