State of the Law
California has one of the most, if not the most, complex and convoluted regulatory structures relating to firearms in the entire United States. The system created by the legislature has been a thorn in the side of those who must comply with the law and those who must enforce it.
After the passage of the state’s “assault weapon” laws, Sen. Don Rogers described confusion among law enforcement with the new law in a letter to Governor George Deukmejian re: Sen. Bill No. 2444 (1989-1990 Reg. Sess.) Aug. 23, 1990:
I am writing to request your signature on SB 2444 which would enable law enforcement personnel in the field the means to be able to recognize what actually is or is not an “assault weapon,” as defined under state law. . . . Unfortunately, a great many law enforcement officers who deal directly with the public are not experts in specific firearms identification. . . . There are numerous makes and models of civilian military-looking semi-automatic firearms which are not listed by California as “assault weapons” but which are very similar in external appearance. This situation sets the stage for honest law-enforcement mistakes resulting in unjustified confiscations of non-assault weapon firearms. Such mistakes, although innocently made, could easily result in unnecessary, time-consuming, and costly legal actions both for law enforcement and for the lawful firearms owners affected.
The confusion was not limited to law enforcement alone. In Rash v. Lungren (1997) 59 Cal.App.4th 1233, it became clear that Judges were equally confused. Perhaps California Appeals Court Justice William Bedsworth, writing about firearm laws, said it best:
At first blush, the statutes seem impenetrable. Reading them is hard, writing about them arduous, reading about them probably downright painful. The [complexity] makes for tough sledding. As Alfred North Whitehead wrote of rationalism, the effort is, itself, an adventure in the clarification of thought.
Even one of cinema’s greatest action heroes found the state’s plethora of firearm laws confusing. In his 2005 veto message to Senator Jack Scott, Gov. Arnold Schwarzenegger stated:
California's laws already impose strict liability on gun owners who allow a child to access their firearm. Ensuring firearms are stored properly is an important public health goal and that is why I support the current criminal storage laws. The additional firearm storage restrictions proposed by SB 1140 are vague and unnecessary to our criminal justice system. Strict liability is the most stringent legal liability theory available and only five other states beside California currently impose such a harsh penalty. SB 1140 would further expand the liability to situations that cannot be easily defined and thereby provides no guidance to a person as to how to avoid criminal penalties. Such ambiguity in the law invites arbitrary enforcement and judicial review. Unfortunately, SB 1140 does more to confuse an already complicated area of the law than to protect children. Before a government exercises its power to take away one's liberty, it should be clear to every person what actions will cause them to forfeit their freedom. Instead of adding to the lengthy and complex area of firearm laws, a reorganization of the current laws should be undertaken to ensure that statutes that impose criminal penalties are easily understandable.
Subsequently, in 2006, the Legislature passed the Assembly Concurrent Resolution, which described the state of the firearm laws:
Many other provisions of the Penal Code are very confusing. In particular, the laws relating to the transfers of firearms are lengthy, with numerous cross-references, highly fact-specific exemptions, and complex provisions. For example, Penal Code Section 12078 is 5,880 words long and occupies 11 pages if printed in a 12-point font with conventional margins. The section has cross-references to many scattered sections of other firearms provisions, some of them hundreds of sections away. The firearms laws occupy over 100 pages of an unannotated version of the Penal Code when printed in dual column in tiny print.
Since then, the Penal Code has been restructured, but the complexity still exists. Even more new laws regulating firearms have been added.
Today, a search of the Official California Legislative Information website of the term “firearm” reveals that there are currently sixty-eight (68) bills pending that address or affect firearms in one way or another for this legislative term alone. Most of these bills have nothing to do with the goal of safety, security, or reducing crime within the State of California.
In fact, they are just the opposite. These bills are designed and intended to harass gun owners (a favorite target for the current ruling class) and to create a new class of crime and criminals out of those individuals who have sought to collect firearms for self-defense, sporting, and other lawful uses. These bills further regulate the who, what, where, when and why of how firearms can be sold, used, possessed, transferred, displayed, and more. They are far reaching; one bill goes so far as to make illegal the possession and sale of one of the most common firearms in America.
Once passed, these bills have a tendency to spread throughout the country like a virus. The proponents of these bills create classes and groups of firearms and firearm owners to mitigate public outrage, e.g. “assault weapons,” “Saturday night specials,” “sniper rifles,” “short barrel rifles,” and “prohibited persons.” With all these laws already on the books and more coming, it is important to know the evolution of California’s gun control movement – beginning with its genesis.
California’s First Gun Control Law
Though it had only been a part of the United States for less than two years, California became the 31st state in the union (without ever even having been a territory) on September 9, 1850. Two years prior, Mexico had ceded California and much of its northern territory to the United States in the 1848 Treaty of Guadalupe Hidalgo. Signing the treaty was a decision the Mexican diplomats would soon regret. They pictured California as a region of sleepy mission towns with a tiny population of about 7,300 – not a tragic loss to the Mexican empire. Had they known that gold had been discovered at Sutter's Mill in Coloma, California, nine days before they signed the peace treaty, they likely would have kept hold of California.
Beginning in 1849, "forty-niners" began flooding into California, chasing after the gold rumored to be strewn about the ground just waiting to be picked up. California's population and wealth skyrocketed.
Unlike most newly acquired regions of the United States that went through long periods as territories before they had the 60,000 inhabitants needed to achieve statehood, California took the fast track. Prior to the Gold Rush, immigration to California had been so slow that it would have been decades before the population reached that number. With gold seekers pouring in at a torrential pace, more than 60,000 people came to California in 1849 alone. Congress allowed California to jump straight to full statehood without ever passing through the formal territorial stage in the Compromise of 1850.
But relations between settlers and the Native Americans were strained, to say the least. Governor Peter H. Burnett on January 7, 1851, described California’s view of the Native Americans as follows:
That a war of extermination will continue to be waged between the races, until the Indian race becomes extinct, must be expected. While we cannot anticipate this result but with painful regret, the inevitable destiny of the race is beyond the power or wisdom of man to avert.
With his powers as governor, Peter H. Burnett sought to achieve that goal of exterminating Native Americans using Article VII of the first California Constitution, which gave the governor the power “to call for the militia, to execute the laws of the State, to suppress insurrections, and repel invasions.” MilitaryMuseum.org details his actions:
In his annual address to the California Legislature on January 7, 1851, Governor Burnett highlighted significant events that transpired during 1850, including “repeated calls…upon the Executive for the aid of the militia to resist and punish the attacks of the Indians upon the frontier.” During 1850, Governor Burnett called out the militia two times. The first order was prompted by incidents at the confluence of the Gila and Colorado rivers on April 23, 1850; in response, the Governor ordered the sheriffs of San Diego and Los Angeles to organize a total of 100 men to “pursue such energetic measures to punish the Indians, bring them to terms, and protect the emigrants on their way to California.” The second instance occurred in October 1850, when Governor Burnett ordered the sheriff of El Dorado County to muster 200 men. The commanders were instructed to “proceed to punish the Indians engaged in the late attacks in the vicinity of Ringgold, and along the emigrant trail leading from Salt Lake to California.”
Thus, with the Native Americans facing “extermination” at the hands of the governor and still being able to defend themselves with firearms and ammunition purchased on the open market, the proverbial crisis that precedes most gun control measures was born. The solution was to create the first California firearm law, which regulated a class of “prohibited persons.”
In 1851, California Representative Alonzo Adams “gave notice that he would, at an early day, ask leave to introduce a bill entitled ‘an Act to prevent the sale, or furnishing Fire-arms and other implements of war to Indians.’” As with most first attempts at new gun control measures, the act was not passed.
Three years later, in 1854, the act was geographically narrowed and picked up by Representative Edward A. Stevenson, who gave notice that “he would at an early day introduce a bill for an Act to prohibit Indians from carrying fire arms or munitions of war in El Dorado county” – a more limited approach than Representative Adams took in 1851. But he too was unsuccessful, because his efforts were too narrow in scope.
Soon after Representative Stevenson introduced his bill, Representative Stephen Girard Whipple introduced Assembly Bill No. 80 (1854), “An Act to prevent the sale of fire arms and ammunition to the Indians in this State.” Note the lack of the bill’s inclusion of “munitions of war” and “implementations of war” that existed in the bill’s predecessors. By this time, there was no need for propaganda and the agenda was clear – “Indians” should not have guns or ammunition.
On March 21, 1854, Assembly Bill 80 was passed, making the sale of firearms and ammunition to “Indians” a misdemeanor. The full text of California’s first statewide gun control law, which became Penal Code section 398, is as follows:
Section 1. any person or persons who shall sell, or give, or in any way dispose of, to any Indian or Indians, of either sex, in this State, any fire-arms or ammunition of any description, shall be deemed guilty of a misdemeanor, and upon conviction thereof in any court of competent jurisdiction in this State. [sic] shall be fined in a sum not less than twenty-five dollars, nor more than five hundred dollars, or sentenced to the county jail not less than one month nor more than six months, or both such fine and imprisonment, in the discretion of the court.
Sec. 2. Of all fines so collected one-fourth shall be paid to the person informing, one-fourth shall be paid to the County Treasury for road purposes, and one-half shall be paid into the State Treasury, for Common School purposes.
Sec. 3. This Act to take effect from and after thirty days after its passage.
Penal Code section 398 remained law within the State of California for almost 60 years. On April 22, 1913, the California Legislature approved the repeal of section 398. The repeal became effective August 10, 1913.
Written by civil rights and firearms law attorney Jason Davis for The Calguns Foundation.
CGF, CAL-FFL, Gun Owners Win in South San Francisco; City Withdraws Ammo Ban, Cites Tremendous OppositionAfter considering the letter of opposition sent by The Calguns Foundation and California Association of Federal Firearms Licensees, the City of South San Francisco prudently rejected an outrageous gun control measure that would have banned hollow point ammunition and subjected gun owners to serious privacy risks. The ordinance was backed by anti-gun San Francisco Mayor Ed Lee, who is working to have other Bay Area cities to adopt the highly-flawed ordinance that his city did earlier in March.
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We are witnessing a revival among Second Amendment civil rights activists and — importantly — tremendous growth in both the diversity and sheer numbers of new gun owners. Our modern gun rights culture has adopted, rightfully, the American born-and-bred AR-15 self-defense rifle as the de facto symbol of our fundamental civil liberties.
To thank the anti-gun zealots for bringing together millions of law-abiding gun owners like never before in our history, we’re giving away one of our favorite guns – a new Spike’s Tactical AR-15 platform M4LE rifle! Best of all, our giveaway is free to enter – sign up right now for a chance to win!
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This update will provide you a thumbnail sketch of what is happening with key gun legislation in California. For more detailed information, follow the links provided.
AB 48 (Skinner) - Ban on magazine parts; requires ammunition transfers to be conducted by FFL; requires law enforcement reporting for ammunition transactions. Hearing: Assembly Public Safety 4/2/13). Position: OPPOSE.
AB 169 (Dickinson) - Removes the “private party transfer” exemption for non-Rostered handguns and prohibits owners of non-Rostered handguns from selling them to non-exempt persons. Hearing: Assembly Public Safety 4/2/13. Position: OPPOSE.
AB 500 (Ammiano) - Waiting period expansion and new DOJ powers to deny guns to law-abiding people. Hearing: Assembly Public Safety 4/2/13. Position: OPPOSE.
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There’s no other way to say it: anti-gun politicians in Sacramento have declared war on your gun rights.
California Senator Darrell Steinberg and his gun-grabbing posse have introduced dozens of gun control bills aimed at gutting your Second Amendment rights.
FPC - and YOU - are all that stand in their way.
If their gun ban bills pass into law, hundreds of thousands of law-abiding Californians - like YOU - would face criminal liability, forced sale or confiscation of lawfully-owned private property, and be treated like sex offenders, among other horrors - just for exercising your fundamental right to keep and bear arms!
We need your help to oppose their gun ban plans RIGHT NOW! Join the fight at CalGunFight.com!
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SAN CARLOS, CA and MADERA, CA (March 27, 2013) – The Calguns Foundation and California Association of Federal Firearms Licensees have sent a formal letter of opposition to the City of South San Francisco on two proposed ordinances that would negatively affect the rights of law-abiding gun owners and retailers.
Proposed ordinance 10.58.020 would require an electronic report be sent to the Chief of Police for every sale of 500 or more rounds of ammunition in a single transaction, creating an electronic database of gun owners that would be subject to public records requests. Proposed ordinance 10.58.010 would prohibit the possession or sale of certain ammunition -- including that commonly possessed for self-defense -- "Black Talon" ammunition, and ammunition "intended exclusively for law enforcement and military purposes."
The pair of gun control measures are being pushed by Mayor Edwin Lee of the neighboring City of San Francisco, who championed identical measures in San Francisco earlier this month.
"San Francisco Mayor Lee is trying to take his wrong-headed and atrocious policies around the Bay Area, starting with the City of South San Francisco," explained Brandon Combs, executive director of The Calguns Foundation. "We're cautiously optimistic that they will be viewed for what they are and rejected by the City Council tonight."
"The proposed ordinances suffer from a number of serious defects, including vagueness and Second Amendment concerns," said attorney Jason Davis, who penned the letter to the City on behalf of CGF and CAL-FFL. "If the proposals are adopted, they would most certainly be the subject of very expensive litigation."
"It says something about the quality of a measure when it names products that haven't been on the market for years as well as repealed sections of the Penal Code," noted Combs. "In Mayor Lee's obsessive rush to trample the Second Amendment and privacy rights of law-abiding people, he left the proverbial barn door open for legal action. Any city that follows in his misguided footsteps will be a soft target for our litigation program."
The CGF/CAL-FFL letter can be viewed at http://www.calgunsfoundation.org/wp-content/uploads/2013/03/SSF-letter.pdf. The proposed ordinances and the City's Staff Report can be viewed at the Firearms Policy Coalition website at http://www.firearmspolicy.org/the-issues/california/2013-2014/south-san-francisco-ammo-ban.
The Calguns Foundation (calgunsfoundation.org) is a 501(c)3 non-profit organization which serves its members by providing Second Amendment-related education, strategic litigation, and the defense of innocent California gun owners from improper or malicious prosecution. The Calguns Foundation seeks to inform government and protect the rights of individuals to acquire, own, and lawfully use firearms in California.
California Association of Federal Firearms Licensees (calffl.org) is California’s premier non-profit industry association of, by, and for firearms manufacturers, dealers, collectors, training professionals, shooting ranges, and others, advancing the interests of its members and the general public through strategic litigation, legislative efforts, and education. For more information or to join Cal-FFL, please visit calffl.org.
While we work to resolve the national question of the scope of the right to bear arms in public, the Initiative’s Compliance component would further go to address as much as possible in the 58 sheriffs’ carry license programs (from pre-application to issuance) so that, as soon as we did have a final decision from the Supremes (or a victory in the Ninth Circuit), people could apply en masse and would, it was hoped, not be stuck dealing with unlawful and burdensome local rules.
The Sunshine aspect of the Initiative had a two-part role: (1) it made the as-applied policies of all 58 sheriffs collectively exposed for the first time in history - telegraphing that Californians were very much interested in their rights, and (2) offering valuable insight to applicants and prospective applicants on “good cause” statements.
Since the Initiative took off in 2010, it has directly and positively affected carry throughout California in a number of ways. CGF v. Ventura County and Sheriff Bob Brooks was a lawsuit we filed - and won - when Sheriff Brooks refused to allow us access to public carry license records that we needed to show his actual practices, i.e., who was he giving carry licenses to and what “good causes” were acceptable? Through that lawsuit, we acquired and published the county’s records and sent a message to the other counties: show us, or we’ll have a judge make you show us.
Following that, CGF worked with newly-elected Ventura Sheriff Geoff Dean to install a completely-revamped policy largely based on CGF’s Model Carry License policy - the first and, to this day, only policy that both carefully adheres to state law and respects Constitutional doctrines on civil rights.
We also worked with San Mateo County to bring their policies and procedures into general compliance, while, like Ventura, they too retained discretion with respect to ‘good cause’ and ‘good moral character’ standards.
After investigating then-San Francisco Sheriff Michael Hennessey’s carry license program (or, rather, his total lack of one, save for the single license he issued to his own lawyer), CGF not only exposed the corruption of the system but forced San Francisco to adopt a carry license policy for the first time in its history. The policy, while terrible, is at least something that we and others can challenge as various cases resolve and precedence builds.
In Stanislaus County, we successfully compelled (with an assist from the Madison Society) the sheriff’s office to stop enforcing an unconstitutional policy and to revisit many of their local rules, a number of which were clearly violative of state law.
In Merced County, we litigated a number of Sheriff Pazin’s carry license policies and practices, forcing the County to adopt a much more compliant policy - more news on this will be published very soon.
In Shasta County, CGF worked with Sheriff Bosenko to update his office’s policies following the enactment of SB 610. These revised policies and procedures are in the Sheriff’s hands and, last we heard, were waiting on final approval before being officially put into place.
In Los Angeles County, we’re litigating against Sheriff Baca over his policy of making applicants first apply to their police chief - costing applicants additional money and time - before being allowed to apply to his office. We think such a rule is not only unconstitutional but against his statutory duties, so we want to make sure that Los Angeles, and any other county that might be looking to Los Angeles as a beacon, is taught a lesson and brought back into compliance with the law. We’re also preparing a related new effort in Los Angeles county that has to do with rights under the California state constitution.
CGF is presently working with a diverse selection of counties to improve their policies in advance of a second amendment “bear” decision, compiling the 2012 statewide audit based on CA DOJ data, and preparing its next wave of lawsuits, including a unique challenge to reduce the waiting times for new applicants (in some counties this can exceed 12 months before applicants can even apply).
Since our Initiative commenced, we’ve assisted countless applicants in counties across the state; some have been outright successful and are carrying today, and some have become plaintiffs (or plaintiffs in waiting). Importantly, helpful information like the Carry License Application Guide - the only one of its kind in California - has made it into the hands of thousands of Californians. Similarly, CGF has sent all 58 sheriffs updates on carry license laws and copies of our Model Policy.
We expect to continue our existing progress and expect to accelerate the changes we’re creating once the Supreme Court grants cert in a carry case and then beyond an opinion recognizing that the law abiding have a right to bear arms in public.
Calguns Foundation, with our partner SAF, filed the first post-Heller “right to carry” lawsuit in the nation on May 5, 2009, 15 days after the first Nordyke v. King panel decision incorporated the Second Amendment. The case against the sheriffs of Sacramento and Yolo Counties was originally known as Sykes v. McGinness.
We moved quickly on carry after we read the Heller decision, as we found it surprisingly supportive of the right to bear arms. The board members, partners, and volunteers of CGF made the strategic decision to prioritize the right to carry as the next most critical step in securing the right to keep and bear arms. Incorporation felt like a foregone conclusion that would resolve in due course and thus the first Nordyke panel opinion gave us a chance to move more quickly on a carry case. Time was and remains of the essence due to the political realities of potential new Supreme Court Justice appointments.
We prioritized carry because it is most critical to the safety of our members and has the most potent ability to widen and strengthen the American investment in the right to arms. It's one thing to argue about what you can or can't do when you're not currently doing it, it's another for the government to try to take licenses away from those who have them and have gotten used to exercising them day to day. Many in the Second Amendment community thought we were rash or wrong to so quickly attempt to solidify the right to carry - so bold as to potentially take the most important social issue on immediately. But while reasonable people can disagree, we were confident that first, you can not win battles you do not fight, and second, criminals would raise these issues immediately regardless of what we did.
Lately, and for various reasons, some are criticizing CGF as “a failure” regarding the right to carry. We find that statement amusing and uninformed and hope to dispel some disinformation as well as educate everyone on what we've accomplished and where we’re all going.
The Nordyke opinion was vacated, taken en-banc and then stayed for McDonald v City of Chicago. The district court judge in Sykes stayed our case for Nordyke on September 1, 2009. We knew that meant that the case would be paused until at least late June 2010 as that's when the opinion in McDonald would be issued. At the same time we were getting mixed messages from then Sheriff McGinness and Sacramento County counsel. Also, now that we had time, we wanted to add a recent license denial to our plaintiffs to avoid certain non-substantive arguments from the other side when the case resumed.
We asked two trusted volunteers to apply in late February 2010 using a good cause statement of "I wish to carry a firearm for self defense and the defense of my family." Sheriff McGinness’ official policy that dated from 2007 and was still in effect in early 2010 stated, “[t]he mere fear of victimization, or desire to carry a firearm, shall be insufficient” “good cause” to issue a gun carry permit," and that “[w]hat may be good cause in one area of the county may not be in another area.” Further, his policy required a one year minimum residency in Sacramento county before issuing a license.
On April 10, 2010 Sheriff McGinness updated his policy to remove some of the issues we had challenged in Sykes. The first of our volunteers (who were not very difficult for the Sheriff's office to guess were related to CGF and that was part of our intent) received his carry license in the first week of May, 2010. We then sent another wave of volunteers through and they promptly received their carry licenses as well.
On June 28, 2010, the McDonald decision was issued that incorporated the fundamental right to keep and bear arms.
Settlement discussions began the month after McDonald with Sacramento and we quietly spread the word to Ms. Sykes, the other Sacramento plaintiffs, and additional volunteers and members to go ahead and get their carry licenses.
However, we had some specific required changes to their policy document before we would allow Sacramento County out of the case. On approximately October 18, 2010, the policy document posted online was changed to have the following negotiated language at the top of it: "[s]elf-defense may be considered good cause for the issuance of a permit, however, each application is unique and the Sheriff retains the ability to deny permit applications where it appears that doing so is in the interest of public safety." That language remains at the top of Sacramento County’s policy document to this day.
On October 22, 2010, we filed a motion to amend our complaint and said this about our agreement with Sacramento County:
The Court ordered that this action be held in abeyance for sixty days following the Supreme Court’s decision in McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), which was handed down on June 28, 2010. During this period, Plaintiffs and Defendants Sacramento County and McGinness were able to resolve their dispute. An appropriate stipulation of dismissal covering the dispute with the Sacramento defendants is filed separately.
From that time forward our case was restyled Richards v. Prieto and continued against Yolo County and the Yolo County Sheriff.
While settlement conversations were underway we had our volunteers reach out and address some of Sacramento's other, more tactical policy issues, including a vestigial requirement that limited licensed carry within 1000' of a school. By letter on October 5, 2010, that policy was removed from existing and new licenses. We also had volunteers communicating with both leading sheriff candidates to make sure they would honor the agreement we had made with Sheriff McGinnis.
On November 2, 2010, Scott Jones was elected the new sheriff of Sacramento County.
Since then, Sacramento County has been issuing about 1100 new licenses per year to all residents throughout Sacramento County.