Eastern District of California Blog

Second Amendment Protesters Outside Courthouse

As I walked to my office this morning, I saw about 40 Second Amendment protesters outside the federal courthouse.  I checked the docket and saw that a hearing on plaintiffs' motion to enjoin California laws regarding the open carrying of firearms in public (Cal. Pen. Code §§ 26150, 26155, 26350, 25850) was on calendar today.  Baird v. Becerra, 2:19-CV-617-KJM.  But apparently the hearing was continued at the last moment to tomorrow, 10/9, at 11 a.m.  

[10/9/19 update]:  After hearing oral argument on the plaintiffs' motion for a preliminary injunction and California's motion to dismiss, the Court took the matter under submission with a written order forthcoming.

EDCA Court Denies Challenge To California Semiautomatic Handgun Microstamping Law

Here is a summary from Courthouse News, 3/2/15 of Judge Mueller's 28-page ruling denying plaintiff's Second Amendment challenge in this lawsuit to a California law banning new or modified semiautomatic handguns unless they use microstamping that allow bullets to be traced after firing:

California's Unsafe Handguns Act, which bans new semiautomatic handguns that do not stamp identifying information on the cartridge when a bullet is fired, is constitutional, a federal judge ruled.

The Unsafe Handguns Act prohibits the manufacture or sale of any gun that does not meet certain safety requirements. The California Department of Justice keeps a roster of tested revolvers or semiautomatic pistols that have been deemed not to be unsafe.

The purpose of the law is to reduce crime by reducing the sale of cheap handguns, ensuring that handguns fire when they are supposed to and do not fire when dropped.

A 2007 amendment prohibited the manufacture or sale of handguns without microstamping technology, which identifies the gun's make, model and serial number through a code on a bullet's casing. The microstamping requirement took effect in 2013.

The Unsafe Handguns Act does not violate the constitutional right to bear arms because gun owners do not have a right to buy specific types of firearms, U.S. District Judge Kimberly Mueller ruled on Feb. 26.

See also SJ Mercury News, 2/26/15.

EDCA Court Finds 10-Day Waiting Period To Buy Guns Unconstitutional For Prior Gun Purchasers

A federal judge in Fresno on Monday ruled the state's 10-day waiting period for buying firearms is unconstitutional for those who've previously purchased weapons and cleared background checks.

U.S. District Court Judge Anthony W. Ishii issued the ruling after a March bench trial, as well as deposition testimony and numerous briefings that concluded at the end of June. Last December, he had denied a request by state Attorney General Kamala Harris to throw out the lawsuit. Harris, along with the California Department of Justice, were defendants in the suit.

"As an individual plaintiff I was ecstatic," said Madera County resident Brandon Combs. "It was years and an awful lot of work."

But as executive director of The Calguns Foundation, Combs said the decision is a step in what he sees as a restoration of gun rights that are part of the Constitution. Next up: almost certainly, another federal lawsuit, this one targeting the state's limit on handgun purchases to one every 30 days.

Fresno Bee, 8/25/14

Ninth Circuit Holds Yolo County Concealed Gun Permit Policy Violates Second Amendment

In Richards v. Prieto, No. 11-16255, the Ninth Circuit (Judges O'Scannlain, Thomas, and Callahan) held in an unpublished decision that, in light of Peruta v. County of San Diego, No. 10-56971 (9th Cir. Feb. 13, 2014), the EDCA district court "erred in denying plaintiff's'] motion for summary judgment because the Yolo County [concealed gun permit] policy impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense." Judge Thomas concurred.  Absent Peruta, Judge Thomas "would hold that the Yolo County's 'good cause' requirement is constitutional because carrying concealed weapons in public is not protected by the Second Amendment" and, alternatively, even if it did, the policy would survive intermediate scrutiny.  

EDCA Court: 10-Day Gun Waiting Period Potentially Unconstitutional

Thanks to the legal blog Volokh Conspiracy, I spotted Judge Ishii's order denying California's motion for summary judgment in a case raising constitutional challenges to California's 10-day gun waiting period in Silvester v. Harris, No. 1:11-CV-2137-AWI (E.D. Cal. Dec. 9, 2013).

UCLA Law Professor Eugene Volokh's blog post excerpts the portion of the opinion that suggests the waiting period may violate the Second Amendment and quotes from his law review article on the topic.

Ninth Circuit Affirms EDCA Ruling In Suit Over Sacramento County Concealed Firearms Licensing Policy

In Mehl v. Blanas, 08-15773, the Ninth Circuit yesterday affirmed the EDCA court's ruling in favor of Sacramento County in a challenge to its policy regarding licenses to carry concealed firearms.  The plaintiffs had claimed the policy, as applied to them, violated the Equal Protection Clause of the Fourteenth Amendment.   In footnote 2, the Court explained that plaintiffs clarified at oral argument that they did not challenge the licensing scheme as violating the Second Amendment.

EDCA Court Rules No Second Amendment Right To Carry A Concealed Gun In Public

Memorandum and Order, Richards v. Prieto , 5-16-11

A federal judge ruled Monday there is no constitutional right to carry a hidden gun in public -- a decision that dealt a setback to gun-rights advocates who had challenged how much discretion California law enforcement officials have in issuing concealed weapons permits.

U.S. District Court Judge Morrison England Jr. in Sacramento supported a policy by Yolo County Sheriff Ed Prieto that says applicants must have a reason, such as a safety threat, to legally carry a concealed weapon in his county northwest of Sacramento.

* * *

Gura filed a notice Monday saying the groups will appeal Judge England's decision to the 9th U.S. Circuit Court of Appeals in San Francisco.

Gura had argued that Prieto's policy gives the sheriff arbitrary discretion over a fundamental constitutional right to bear arms.

England countered that California law currently lets gun owners carry an unloaded weapon so it can be quickly loaded and used in self-defense if needed.

As a result, "Yolo County's policy does not substantially burden plaintiffs' right to bear and keep arms," England wrote in his 16-page decision.

Boston.com, 5/16/11.

EDCA Court Hears Argument On Summary Judgment Motions In Concealed Gun Permit Case

Welcome to the 21st Century! 

Yesterday, a juror posts a comment to the Bee's website explaining the jury's Drake Jones verdict.  Today, @CalgunsFdn had a live twitter feed covering this afternoon's argument before Judge England on the parties' cross-motions for summary judgment in Richards v. Prieto, No. 091-1235-MCE, a Second Amendment challenge to Sacramento and Yolo Counties' concealed gun permit policies.    

For background on the suit and a link to the civil complaint, see CBSNews.com, 5/6/09.

Fresno County Judge Rules Part of State Handgun Law Unconstitutional

A Fresno trial court judge has thrown out key sections of a state law restricting handgun ammunition sales, barring authorities from registering bullet buyers' thumbprints on the grounds that it would be unconstitutional.

Gun rights advocates applauded Tuesday's ruling by Fresno County Superior Court Judge Jeffrey Hamilton, saying the law would have created uncertainty by forcing local sheriffs and firearms shops to decide for themselves what caliber of bullets were covered under the regulations.

Fresno Bee, 1/19/11

Cutting Edge Second Amendment Motions

More and more cracks in government gun prosecutions are starting to develop as creative defense attorneys seek to apply the Supreme Court's Second Amendment holding in Heller in federal firearm prosecutions, such as this U.S. v. Engstrum district court opinion described in The Volokh Conspiracy as follows:

A federal court holds that someone being prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor is constitutionally entitled to present an affirmative defense "that he posed no prospective risk of violence" (which I take it must mean no prospective risk of violence beyond that posed by the average person). The jury would thus be instructed that, if it agrees with the defendant that he posed no prospective risk of violence, it should acquit despite the flat prohibition imposed by the statute.

See also this Volokh post on pro-defense, district court Second Amendment dicta and Prof. Berman's Readings for Second Amendment fans.  More Second Amendment Sources

Closer to home, this EDCA Motion to dismiss 922(g) charge (though unsuccessful before LKK) provides a sample for others who want to raise Second Amendment motions in 922(g) or other firearm prosecutions.