FPC Files Lawsuit: Ban on Non-Resident Carry Challenged in Court

Mural in US Capitol shows traveling with arms was common

On April 11, 2024, a lawsuit was filed against Rob Bonta in his capacity at the Attorney General of California. The lawsuit contends California infringes on the rights protected by the Second Amendment of the Bill  of Rights by prohibiting United States citizens who are not residents of California, from exercising rights protected by the Second Amendment, in California. From the lawsuit:

2. California, however, prevents law-abiding citizens of the United States who do not reside in California from exercising their constitutionally protected right to carry loaded, operable firearms in public. State law generally prohibits individuals from carrying firearms either openly or concealed in public, and non-residents are not eligible for a license to carry a firearm in public. Indeed, California’s unconstitutionally restrictive scheme provides no path for non-residents to carry a firearm lawfully in public at all. As a result, individuals like Plaintiffs Hoffman, Orrin,and Sensiba, who have been issued carry licenses in their respective home states (and are allowed by other states that either do not require a license, or which offer reciprocity based upon the license(s) they hold), are barred from lawfully carrying a firearm in public for self-defense when they visit California.

The lawsuit contends the ban on carry by non-residents is unconstitutional. U.S. citizens do not lose the protection of the Bill of Rights when they cross state lines. They do not lose the right to free speech, the right to practice their religion, or the protection from unreasonable searches or seizures.

This is not the first case which challenges the power of states to block the exercise of rights protected by the Second Amendment by non-residents. In the early challenge to highly restrictive California law on carry permits, in the Peruta case, Peruta contended he had a right to be issued a California permit because he resided in the state part of the time.  Peruta did not prevail, in part, because the case occurred before the current Supreme Court ruling in Bruen clarified how inferior courts were to apply the Heller decision.

Another case, CRPA v LASD, is ongoing. Among other issues, it challenges the power of
California to infringe on the rights of non-residents, which are protected by the Second Amendment. In a Massachusetts case, decided in 2023, a local judge ruled laws which prevent non-residents from carrying are infringements on rights protected by the Second Amendment. The decision in Massachusetts is not a precedential decision. It only applied to the person involved in the case.

When the Second Amendment was ratified in 1791, there were no prohibitions on carrying arms across state lines. Even the strictest colonial law, from 1686, made an exception for travelers. From the Bruen decision, in the amici curiae:

In 1686, East New Jersey enacted a law providing that no person “shall presume privately to wear any pocket pistol, skeines, stilettoes, daggers or dirks, or other unusual or unlawful weapons,”  and that “no planter shall ride or go armed with sword, pistol or dagger” except certain officials and “strangers, travelling upon their lawful occasions through this Province, behaving themselves peaceably.”3

There are many examples in statutes, in the history of the United States, which specifically exempt travelers from state weapons laws.  From the Bruen decision, p. 4: 

A short prologue is in order. Even before the Civil War commenced in 1861, this Court indirectly affirmed the importance of the right to keep and bear arms in public. Writing for the Court in Dred Scott v. Sandford, 19 How. 393 (1857), Chief Justice Taney offered what he thought was a parade of horribles that would result from recognizing that free blacks were citizens of the United States. If blacks were citizens, Taney fretted, they would be entitled to the privileges and immunities of citizens, including the right “to keep and carry arms wherever they went.” Id., at 417 (emphasis added)

Analysis: The state of California will counter these arguments. They will claim the Second Amendment only applies to residents of their home state, as residents are not allowed to vote in another state. They will claim it is particularly dangerous to allow residents of other states to carry in California. They will claim other states do not have the burdensome training and fee requirements which California requires to obtain a carry permit.  They will claim the usual Progressive arguments of "that was then, this is now", and "limitations on government power are bad". None of those arguments are valid.

The Court of Appeals for the Ninth Circuit has a reputation for being hostile to the free exercise of the Second Amendment. If the District Court rules for the plaintiffs, expect the state to appeal to a Ninth Circuit three judge panel. If the three judge panel rules for the plaintiffs, expect the ruling to be re-heard by an en banc panel. The only appeal after an en banc panel is to the Supreme Court.

 

©2024 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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