Is Penal Code § 25400 Unconstitutional under Bruen?

On June 23, 2022, the U.S. Supreme Court decided New York State Rifle & Pistol Associates, Inc. v. Bruen (2022) ___ U.S. ___, 142 S. Ct. 2111, holding that New York state’s public carry licensing regime requiring “proper cause” violated the Second and the Fourteenth Amendments. 

This ruling surprised many and was cheered by gun rights enthusiasts nationwide.  The ruling also suggested many laws in other states may similarly be unconstitutional, depending on how broadly or narrowly other states interpret Bruen.

Shortly after the Bruen decision was reported, the Sacramento County District Attorney’s Office charged Stephanie Miller under California Penal Code § 25400(a)(1) with carrying a concealed firearm in a vehicle under her control.  Ms. Miller was not licensed to carry a concealed firearm under Penal Code § 25665.  It was further alleged that Ms. Miller was not the registered owner of the firearm and the firearm was loaded and in her immediate possession and readily accessible to her (Penal Code § 25400(c)(6)).

Ms. Miller had never attempted to apply for a concealed carry license.

It should be noted that California law provides that, except when an individual is barred by federal or state law from owning, possessing or purchasing a firearm, “When a person applies for a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person,” the sheriff or head of the police department “may issue a license to the person under proof of all of the following: (1) the applicant is of good moral character; (2) good cause exists for issuance of the license; and (3) the applicant [meets relevant residency requirements]; and (4) the applicant has completed a course of training as described in Section 26165.”  Neither “good moral character” nor “good cause” is further defined by statute, suggesting the Bruen analysis may similarly apply to California’s concealed carry licensing law.

Ms. Miller filed a demurrer to the complaint, arguing that under Bruen, the charges against her were unconstitutional.  She contended that California’s licensing scheme is nearly identical to New York’s scheme invalidated in Bruen.  She then argued that because the law was unconstitutional, she could not be prosecuted for violating it.

The prosecutor opposed the demurrer, arguing that Ms. Miller lacked standing to assert this because she never applied for a license.  

Moreover, even if the “good cause” portion of California’s licensing statute was severed, the remainder of the statute remained constitutional and enforceable.

The trial court judge, however, sustained Ms. Miller’s demurrer and dismissed the complaint against her.

The People then appealed this ruling to the California Court of Appeal for the Third District in Sacramento.  The Third District reversed, overruling Ms. Miller’s demurrer.

Put another way, the Third District found that Ms. Miller’s demurrer was based on the flawed premise that Penal Code § 25400 is unconstitutional without a valid licensing scheme.  Indeed, even if the Third District were to decide that California’s licensing statutes are invalid, this would not render a charge under § 25400 unconstitutional as well.

Indeed, in District of Columbia v. Heller (2008) 554 U.S. 570, the U.S. Supreme Court explained, the “right secured by the Second Amendment is not unlimited.”  It is “not a right to keep and carry any weapon whatsoever in any manner and for whatever purpose.”  Id. at 626.  In particular, the nation’s highest court explained that “the majority of 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under Second Amendment or state analogues.”  Id.

The Third Appellate District ruling is rich in dicta about the Second Amendment.  It is noteworthy that in Bruen, the U.S. Supreme Court contrasted New York’s licensing regime with 43 “shall issue jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on perceived lack of need or suitability. 

On the other hand, only six states and the District of Columbia have “may issue” licensing laws, under which officials have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria.  Aside from New York, only California, the District of Columbia, Hawaii, Maryland, Massachusetts and New Jersey have analogues to the “proper cause” standard in Bruen.

We offer this summary to anyone facing a Penal Code § 25400 charge who may think Bruen helps him or her.  It does not and it would be a foolish “rookie mistake” to claim the statute is unconstitutional.