California AG Suggests Unconstitutional Discrimination in Carry Permits

On June 24th, 2022, one day after the long awaited Supreme Court decision in the New York State Rifle & Pistol Association v. Bruen case, the Office of the Attorney General of California sent out a legal alert about how the case affects the issue of concealed carry permits in the state. 

Justice Clarence Thomas, in Bruen set out considerable guidance about how "shall-issue" regimes need to issue permits in order to be considered abiding by Second Amendment. From page 36, footnote 9:

Rather, it appears that these shall-issue regimes,which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.” Ibid. And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials, Shuttlesworth v. Birmingham, 394 U. S. 147, 151 (1969), rather than requiring the “appraisal of facts, the exercise of judgment, and the formation of an opinion,” Cantwell v. Connecticut, 310 U. S. 296, 305 (1940)—features that typify proper-cause standards like New York’s. That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.

The Attorney General of California appears to advise permit issuers in California to go considerably beyond those guidelines. The AG claims that only the "good cause" is affected by Bruen, other criteria such as "good moral character" are not affected.   From CA AG Legal Alert page 1:

Moreover, because the Court’s decision in does not affect the other statutory requirements governing public must still require proof that “the applicant is of good moral character,” (2) the applicant is a resident of the relevant county or city (or has their principal place of business or employment in that county or city), and (3) the applicant has completed a course of training. Id. §§ 26150(a), 26155(a). Issuing authorities may also still require psychological testing. Id. § 26190(f). 

The AG continues to give examples of ways in which issuing authorities can find reasons to deny the issuance of carry permits. 

Existing public-carry policies of local law enforcement agencies across the state provide helpful examples of how to apply the “good moral character” requirement. The Sacramento County Sheriff’s Office, for example, identifies several potential reasons why a public license may be denied (or revoked), which include “[a]ny arrest in the last 5 years, regardless of the disposition” or “[a]ny conviction in the last 7 years.” It is reasonable to consider such factors in evaluating applicant’s proof of the requisite moral character to safely carry firearms in public. See, e.g., Bruen slip op. p. 63 (referencing “law-abiding citizens”). Other jurisdictions list the personal characteristics one reasonably expects of candidates for a public-carry license who do not pose a danger to themselves or others. The Riverside County Sheriff’s Department’s policy, for example, currently provides as follows: “Legal judgments of good moral character can include consideration of honesty, trustworthiness, diligence, reliability, respect for the law, integrity, candor, discretion, observance of fiduciary duty, respect for the rights of others, absence of hatred and racism, fiscal stability, profession-specific criteria such as pledging to honor the constitution and uphold the law, and the absence of criminal conviction.” 

The AG appears to be suggesting actions blatantly contrary to the guidance in Bruen. 

Judgements about "honesty, trustworthiness, diligence, reliability, respect for the law, integrity, candor, discretion, observance of fiduciary duty, respect for the rights of others, absence of hatred and racism, fiscal stability," seem precisely the opposite of "narrow, objective, and definite standards".

It has been far too long for the right of the people to keep and bear arms to be restored in the United States. Denial of the right to carry in California will have legal challenges popping up like fireworks on the Fourth of July. New challenges to denials of Second Amendment rights will not be long in appearing before the courts. 

 

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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