Post-Bruen

So on June 23, 2022, the United States Supreme Court issued the decision in New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 597 U.S. ___ [142 S.Ct. 2111], available online at https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf, which found unconstitutional New York's public carry laws. In doing so, NYSRPA v. Bruen laid out a standard that questions the constitutionality of pretty much every firearm-related law. The Supreme Court now requires that firearms-related (or maybe all weapons-related law) be supported by the text, history, and tradition of the Second Amendment. This means that lawyers will have to engage in what has been derisively called "law office history," because it's basically scanning old statutes without any historical context or analysis.

As far as I can tell the case name is pronounced nigh-sur-pah v. bruin.

New York's public carry laws are very similar to California's laws. In California, you can neither conceal carry (violation of PC25400) nor carry a loaded firearm in public (violation of PC25850) without a "License to Carry," often called a CCW (Carry Concealed Weapon or Concealed Carry of Weapon) license under PC26150 and PC26155. A License to Carry in California allows a person to both conceal carry and carry a loaded firearm in public.

In response to NYSRPA v. Bruen, California Attorney General Rob Bonta sent a press release about how California DAs should treat weapons cases, which is at https://oag.ca.gov/system/files/media/legal-alert-oag-2022-02.pdf

So defense attorneys up and down the state have been filing demurrers and non-statutory motions to dismiss PC25400 and PC25850 cases because the whole license scheme under PC26150/PC26155 is unconstitutional, and so along with that, PC25400/PC25850 is unconstitutional. Al Menaster sent a CACJ Flash about how to argue Bruen for weapons-related charges.

So lots of people have already heard Sacramento County Public Defenders' great success in getting Sacramento Judge Steve White to sustain a demurrer. First successful demurrer at File:Diaz-SustainingDemurrer-Order.pdf. Second successful demurrer at File:21FE016941 People v Mosqueda Juanita Jaime Order Sustaining Demurrers.pdf. Third successful demurrer at File:Order Sustaining Demurrer. 09082022.pdf Orange County Public Defenders also get a dismissal out of Orange County Judge James Rogan. Decision at http://wiki.waylandchang.com/images/0/0b/Fuentes-Dismissal.pdf

The template for the Sacramento County Public Defenders' demurrers is at File:Bruen Demurrer 995.doc

I'm guessing prosecutors across the state are panicking. Attorney General Rob Bonta has sent out another press release at https://oag.ca.gov/system/files/media/legal-alert-oag-2022-03.pdf that PC25400 and PC25850, and all the rest of California's gun laws for that matter, are still good laws. The press release tells DAs to copy and paste Sacramento DA and Los Angeles City Attorney briefs, available at https://oag.ca.gov/sites/default/files/combined-garcia-jimenez.pdf

Yesterday, the Legislature attempted to pass SB918, available at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB918 which would have tried to completely revamp the firearms in public laws, though I would opine in an unconstitutional manner. The committee bill analysis even mentioned court review of the law was immediately apparent. It was kind of amazing, because I think there were four different votes in the Assembly last night, with the closest one being 53 votes. AG Rob Bonta was on the Assembly floor trying to cajole votes according to the AP news story at https://apnews.com/article/gun-violence-us-supreme-court-california-politics-anthony-portantino-8f491b7dc121a437632442e4be80c5b9 SB918 was an effectively immediately urgency bill, so it required 54 votes in the Assembly to pass. So we are probably left with the current statutes for the rest of the calendar year.

And just to round out what about other Californian firearms laws.

Jones v. Bonta (9th Cir. 2022) 34 F.4th 704, available at https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/11/20-56174.pdf and mentioned in a CACJ flash. was a 9th Circuit case about California's prohibition on under-21 having firearms. It was decided before NYSRPA v. Bruen. That's probably getting reheard or going en banc.

Kanter v. Barr (7th Cir. 2019) 919 F.3d 437 is a 2-1 case about felon-in-possession laws. The "1" is very interesting because it's a then-Judge Amy Coney Barrett, writing about the lack of history behind gun prohibitions based on convictions, and how they're unconstitutional. Barrett thinks it's constitutional to ban people based on violent crimes, but not necessarily all felonies. Barrett is now a Supreme Court justice, and historical analysis is what the Supreme Court majority (including Barrett) dictated in NYSRPA v. Bruen. But all of the United States Supreme Court cases (Bruen, Heller, McDonald) mention in passing that felon-in-possession is a constitutional law. United States v. Yancey (7th Cir. 2010) 621 F.3d 681, also discusses the historical tradition of felon-in-possession and the prohibition against drug users.

Large-capacity magazine laws are currently being litigated in the 9th Circuit in Duncan v. Bonta, and 3rd Circuit in Association of New Jersey Rifle & Pistol Clubs, v. Bruck.

Assault weapons laws are being litigated in the 4th Circuit in Banchi v. Frosh, and in two cases now in the Southern District of California, Miller v. Bonta, and in the Central District of California, Rupp v. Bonta.

There's more public carry lawsuits bouncing around in the 9th Circuit, Nichols v. Newsom, and Young v. Hawaii.

Batons and billyclubs under PC22210 are being challenged in the 9th Circuit under Fouts v. Bonta.

A judge told me that after NSYRPA v. Bruen, he thinks that 90% of California's weapons laws are unconstitutional. So yeah, everything is on the table now.