How Will California Defend Its Carry Ban for Non-Residents?

(AP Photo/Brennan Linsley)

We’ll be talking with California Rifle & Pistol Association president Chuck Michel about the brand new lawsuit taking some of California’s ridiculous requirements for concealed carry applicants on Wednesday’s Cam & Co, and I’m curious to get his thoughts on what kind of defense Attorney General Rob Bonta might offer when it comes to the state’s prohibition on concealed carry for non-residents. I think it’s gonna be awfully tough for Bonta to muster up any kind of rationale that’s going be acceptable to a judge in light of the history, text, and tradition test that’s required, but honestly, it’s hard to defend that ban on bearing arms for non-residents even under the kind of interest-balancing approach that the Supreme Court has rejected.

In their initial complaint, the plaintiffs make it clear that, as far as California lawmakers are concerned, if you’re not a resident of the Golden State your Second Amendment rights become null and void as soon as you cross the state line. It doesn’t matter if you have a valid concealed carry license from another state, because California doesn’t recognize those permits. And if you want to apply for a California CCW you can’t, because there’s no process for non-residents to do so.

In other words, if you are visiting California from another state, or if you need to cross into the state regularly for work, you check your federally enumerated right to carry for self-defense at California’s border.

… California has no more authority to deny nonresidents’ rights to public carry than it does to deny their rights to speak within its borders. On the contrary, the Second Amendment’s reference to “‘the people[]’ … unambiguously refers to all members of the political community, not an unspecified subset.”

An analogous issue was already decided in 2015. Because Ohio would not allow for same sex marriages, James Obergefell and John Arthur decided to marry in Maryland. After learning that Ohio would not recognize their marriage, they filed a lawsuit. The Supreme Court ultimately held, in pertinent part, that “[t]he Fourteenth Amendment requires a State . . . to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.” Obergefell v. Hodges, 576 U.S. 644, 644 (2015). In reaching this conclusion, the Court explained that:

For some couples, even an ordinary drive into a neighboring State to visit family or friends risks causing severe hardship in the event of a spouse’s hospitalization while across state lines. In light of the fact that many States already allow same-sex marriage—and hundreds of thousands of these marriages already have occurred—the disruption caused by the recognition bans is significant and ever-growing. As counsel for the respondents acknowledged at argument, if States are required by the Constitution to issue marriage licenses to same-sex couples, the justifications for refusing to recognize those marriages performed elsewhere are undermined.

This holding and its logic, with respect to an unenumerated right, apply just as much to the enumerated right to bear arms, and thus applies equally to CCW permits issued by other states as the Supreme Court instructs that it does to marriage licenses issued by other states. California may not completely deny Americans the right to carry for self-defense within California’s borders just because they are not California residents.

In the free speech context, an individual “faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license.” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969). Similarly, if a non-resident’s permit is not honored in California, and there is no way for them to get a California CCW permit, their only avenue to exercise their right to carry in defiance of California law.

I’m so glad to see the plaintiffs attorneys cite civil rights cases like Shuttlesworth v. City of Birmingham to highlight the dangers of California’s anti-rights regime, because this too is a civil rights issue.

That particular case involved Birmingham minister and civil rights icon Fred Shuttlesworth and his conviction for violating a local ordinance that required any “parade or procession or other public demonstration” to have a permit issued by the city commission; a permit that was never going to be granted to anyone like Shuttlesworth. In fact, Shuttlesworth sent a representative to the city commission to ask for a permit before he and other ministers led parishioners on a walk through downtown Birmingham, but was told by police commissioner Bull Connor, “No, you will not get a permit in Birmingham, Alabama to picket. I will picket you over to the City Jail.”

On Good Friday in 1963, in defiance of that ordinance and in protest of the Jim Crow laws still in place, Shuttlesworth and two other pastors, along with 52 parishioners, made it four blocks before they were arrested by the local police. Shuttlesworth was convicted and sentenced to 90 days in jail for his “crime”, an act which was ruled unconstitutional by the Supreme Court six long years later.

In California, carrying without a valid license is punishable by 365 days in jail and a $1,000 fine, even if you possess a carry permit from another state. As Michel and the other attorneys argue in their initial brief, not only does this violate the Second Amendment rights of gun owners like Stephen Hoover who live in other states but want to lawfully carry when they visit California, it violates their Fourteenth Amendment rights as well.

… the United States Supreme Court has consistently held that regulations and classifications that impose a penalty or an impermissible burden on the right to travel violate the Equal Protection Clause of the Fourteenth Amendment, unless absolutely necessary to promote a compelling government interest. Saenz v. Roe, 526 U.S. 489 (1999); Shapiro v. Thompson, 394 U.S. 618 (1969). Accordingly, California’s policy of denying out-of-state residents the ability to lawfully exercise their constitutionally protected right to be armed in public for self-defense inhibits the free interstate passage of citizens and violates equal protection doctrines by treating Americans differently merely on account of their state of residency.

Furthermore, the Privileges and Immunities Clause of Article IV, § 2 of the United States Constitution provides that “The Citizens of each State shall be entitled to all privileges and immunities of Citizens in the several States.” The Privileges and Immunities Clause bars discrimination against citizens of other states based on their status as a citizen of another state. Toomer v. Witsell, 334 U.S. 385 (1948).

We’ve seen Bonta try to use 18th and 19th-century statutes that have no resemblance to California’s modern-day gun control laws in other cases, but unless he’s going to argue that residents in the other 49 states are a class of people who are excluded from the protections of the Second Amendment, like Catholics and slaves were treated by some states in the 1800s, I can’t imagine how he’s going to defend the indefensible prohibition on concealed carry for non-residents.

Bonta did refuse to defend a California gun control on constitutional grounds last year after Newsom signed a bill into law that not only empowered private citizens to sue gun makers and distributors who sold “assault weapons”, but also imposed a new legal standard on anyone suing the state over the constitutionality of California gun laws; unless the plaintiffs were successful with every one of their complaints, the state would be entitled to recover attorneys’ fees from the plaintiffs (and perhaps even their attorneys as well). If, on the other hand, the plaintiffs did manage to win on every count included in their lawsuit, the state wouldn’t have to pay them a penny to recover their court costs.

It would be smart for Bonta to do the same here, because there’s just no winning argument when it comes to preventing non-residents from exercising their right to keep and bear arms when they’re visiting California. We’ll have to wait a few weeks to see if Bonta’s going to preemptively throw in the towel or come up with some nonsensical reason why we should lose our Second Amendment rights when we cross state lines, but I’m looking forward to hearing Chuck Michel’s take on tomorrow’s Cam & Co.