Does 2nd Amendment Bar Gun Licensing Requirements?

In San Bernardino County, in January, 2021, San Bernardino County Sheriff’s Deputies conducted a traffic stop of a car being driven by Joshua Paul Allen. Mr. Allen pulled his car into a motel parking lot.

Mr. Allen had a loaded firearm in the waistband of his pants. It was loaded with five rounds. There was also a box of 18 more bullets. Mr. Allen told police that he had taken the gun from another person to prevent that person from hurting someone else. Police also found methamphetamine and a glass pipe that appeared to have been used to smoke methamphetamine. Allen admitted the meth belonged to him.

At trial, Mr. Allen stipulated that he was not the registered owner of the firearm. The jury convicted him of one felony count of possessing a controlled substance while armed with a firearm (Health & Safety Code § 11370.1(a)) and one felony count of “carrying a loaded handgun on one’s person or in a vehicle” (Penal Code § 25850(a)). As to count 2, the jury found true the allegation that the gun was not registered (Penal Code § 25850(c)(6)).

The trial court judge sentenced Mr. Allen to two years in state prison on count 1 and sixteen months in state prison on count 2, concurrent with count 1.

Mr. Allen then appealed the facial validity of the law prohibiting possession of controlled substances while armed with a firearm (Health & Safety Code § 11370.1(a)) and carrying a loaded and unregistered firearm in a vehicle (Penal Code § 25850(a), (c)(6)). He argued that the laws were unconstitutional under New York State Rifle & Pistol Ass’n v. Bruen (2022) 597 U.S. ____, 142 S. Ct. 2111 because the United States has no historical tradition of analogous prohibitions.

The California Court of Appeal for the Fourth District (Riverside) offered a scholarly response to what we think was a rather weak appeal.

It began its analysis by simply setting forth that the Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

It then traced how California courts have ruled that the Second Amendment is not violated by California’s laws prohibiting felons from possessing firearms (Penal Code § 29800(a)(1)) and ammunition (Penal Code § 30305(a)(1)). People v. Alexander (2023) 91 Cal. App. 5th 469, at 477, 499. In reaching this conclusion, the court relied upon District of Columbia v. Heller (2008) 554 U.S. 570, wherein the U.S. Supreme Court explained that the Second Amendment confers “an individual right to keep and bear arms” for the “core lawful purpose of self-defense.” It found that the Second Amendment guaranteed “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller, supra at 635.

Heller nonetheless explained that “the Second Amendment is not unlimited” and is “not a right to keep and carry any weapon whatsoever in any manner and for whatever purpose.” Heller, supra, 554 U.S. at p. 626.

Following Heller, the U.S. Supreme Court held that the Second Amendment applies to the states through the Fourteenth Amendment. McDonald v. City of Chicago (2010) 561 U.S. 742, 791.

California then interpreted the Second Amendment as not extending to protect “a right to carry a gun while simultaneously engaging in criminal conduct.” People v. Gonzalez (2022) 75 Cal. App. 5th 907, 912 – 916 (specifically, Health & Safety Code § 11370.1).

In short, the Fourth District concluded the Second Amendment does not cover possession of a controlled substance while armed. Similarly, the court found that § 11370.1 was constitutional.

As to possession of an unregistered firearm in a vehicle, the Fourth District found that Mr. Allen’s challenge failed because Bruen did not invalidate all firearm registration schemes and, more importantly, Mr. Allen did not argue that California’s firearm registration scheme was invalid.

Moreover, California courts have already twice rejected the argument that such laws are unconstitutional under Bruen. In re D.L. (2023) 93 Cal. App. 5th 144, 147-148 (rejecting facial challenge to § 25850(a), carrying a loaded firearm) and In re T.F.-G. (2023) 94 Cal. App. 5th 893, 913 (carrying a loaded firearm in public unlawful if one does not meet one of the statutory exceptions).