"How California Gun Laws Affect the Common Citizen"

Apparently Sarah Palin does not enjoy traveling (she did not have a passport until a year before she became a candidate for vice president).   Now that she is on the right wing speaking circuit, she'd better leave her guns at home when she comes to California.  Many well-meaning, right-leaning, proud lifetime members of the NRA find themselves at the wrong end of the criminal justice system for the first time in their lives when they travel here from a state with liberal gun laws.

In fact, the majority of the people that we see in our office on firearm offenses are charged not so much with using their guns as with forgetting about them.  They are typically law-abiding members of mainstream society who have left a gun in their car, backpack or suitcase.  Some of these people come from other states where the firearms laws are not as strict.

The recent Supreme Court decision D.C. v. Heller does not change the fact that California laws restricting ownership and use of firearms are among the strictest in the country.  The laws of most other states are so much more liberal that professional athletic teams often give warnings on California firearms laws in their education of athletes drafted from out-of-state universities.  [Note: On June 26, 2008, by a 5-to-4 decision, the Supreme Court in D.C. v. Heller upheld the first federal appeals court ruling ever to void a law on Second Amendment grounds.  Justice Scalia, writing for the majority, stated, "In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."]

"But Officer, I'm on my way to the shooting range."

As Ms. Palin knows, it takes a lot of practice to get to the point when your freezer is full of enough wild game to last through the winter.  But in California you cannot just toss your gun on the passenger seat and drive off to target practice.  Under Penal Code § 12025, U.S. citizens may transport firearms capable to being concealed upon the person by car provided the firearm is unloaded and stored in a locked container.  Under Penal Code § 12026.1, the term "locked container" means a secure container which is fully enclosed and locked by a padlock, key lock, etc.  This includes the trunk of a motor vehicle, but does not include the glove compartment.

Rifles and shotguns are not generally covered under the provisions of Penal Code § 12025 and therefore are not required to be transported in a locked container.  However, as with any firearm, non-concealable firearms must be unloaded while they are being transported.

California allows a gun owner to carry a concealed weapon on his person if he obtains a CCW permit, but permit applications are regularly rejected by officials.  California law does not recognize concealed weapon licenses issued by other states.

Airport Security Has No Sense of Humor

It is a common event for the TSA security agents at Lindberg Field to see the image of a weapon in carry on luggage passing through the X-ray machine.  Usually, when they ask the owner of the luggage, "Did you know that you had a .45 automatic in your bag?" The response is, "Oh S**t, I forgot that was in there!"  The traveler was so busy hurriedly finishing his $8.00 bottled water and listening to his wife complain about having to put her shampoo into a Ziplock baggie that he forgot about his gun.  We have seen this happen to very responsible citizens, including off-duty airline pilots travelling as passengers.

Airport security also frequently detects many of the strange and fun weapons detailed in Penal Code § 12020(c) et seq., including throwing stars, lipstick knives, nunchakus, brass knuckles and batons.  You can buy these novelty weapons in Tijuana, and if you are a male between the ages of 16 and 28 you may be tempted to do so, but don't!  It is not a defense that you lack the specific intent to don a ninja suit and cast throwing stars at your enemies.  Mere possession of one of these weapons is a misdemeanor.

Assault Rifles: Better Left to The Video Games?

A great deal of confusion has surrounded the assault rifle law since the passage of Penal Code § 12276 and the subsequent passage of Penal Code § 12276.1, not only in the legal community but even among law enforcement.  California laws on this topic are very strict and so confusing that law enforcement officers are not always able to tell which semi-automatic center-fire weapons are legal in this state and which are illegal.  A major point of confusion with California law exists due to a firearm being classified as a conventional firearm in one configuration and an assault weapon in another, the difference being the addition or subtraction of small parts or accessory items.  Adding to the confusion, there are often no functional differences between the legal conventional rifle and the illegal assault rifle.  The caliber, ammunition type, velocity, distance, and energy characteristics of two rifles can be identical, but one will qualify as legal while the other will be illegal for a very technical reason that its owner may not know about.

The majority of illegal assault rifles have comparable legal counterparts which are sold openly in California.  Most common illegal assault rifles, including the AK47 and AR15, can be purchased off the rack in many states.  Although federal law does not prohibit their possession and use, it is a violation of federal law for a citizen of California to go to another state to buy an AK47 or AR15 and bring it back home, under 18 U.S.C. § 922(a)(3).  The U.S. Attorney can and will prosecute these cases.  In fact, we have it on good authority that the ATF attends Arizona gun shows and makes note of the California license plates in the parking lot.  They will then track down the California resident's address, knock on the door and ask to come in and have a look at the guns.

If They Find You With a Smoking Gun

While possession of a gun can lead to serious penalties, actually using a gun illegally results in extremely harsh firearms sentencing enhancements.  For example, if you rob someone while you are armed with a knife, ax or chainsaw, you will face three, four or six years in prison for the underlying robbery, plus an additional year for the use of a dangerous weapon.  Under a sentencing enhancement found in Penal Code § 12022.53, if you commit that same robbery with a gun, you will face an additional and consecutive ten years in prison - even if the firearm is inoperable or unloaded and therefore poses no real threat.  If, during that same robbery, the firearm is in fact loaded and you shoot a round into the floor for dramatic effect, the enhancement is an additional and consecutive twenty years in prison.  This is all assuming that no one gets hurt.  The moral of the story is you are better off committing most crimes wielding a samurai sword than by carrying even an unloaded gun.

Do You Really Want to Shoot a Burglar?

Many of Palin's supporters would answer this question in the affirmative and have even given considerable thought to where they would aim.  After all, the core holding in D.C. v. Heller, supra, which Palin and other gun advocates celebrated, is that the Second Amendment is an individual right of self-defense.  Nonetheless, in California, strict gun laws apply to the storage of a gun in your home as well as your use of a gun to defend yourself, even against a legitimate threat such as a burglar or robber.

Penal Code 198.5 states that a person using deadly force within his residence shall be presumed to have held a reasonable fear of imminent peril where an intruder forceably enters the home, but self defense law is complex.   Suffice it to say that unless you are resisting a forcible and atrocious crime, you cannot use deadly force to protect yourself, inside or outside of your home.  You probably will not be prosecuted for shooting a burglar who is climbing in your window, especially if he turns out to be a three-striker as opposed to a neighbor's misbehaving teenager.  On the other hand, you cannot shoot a burglar who is climbing out of your window with your TV.  And if the burglar pulls a knife on you when you try to wrestle the TV out of his hands, can you shoot him then?  There is a jury instruction in California, we refer to as the John Wayne instruction, which states you do not have a duty to retreat and call the police if you are threatened with violence - you can stand your ground and shoot.  The problem with the jury instruction is that if you need it, you are on trial.

There are few topics upon which Americans have more polarized opinions than firearms.  For gun advocates, the Heller decision is a victory of historic and monumental proportions in this field.  But if Sarah Palin wants to celebrate Heller and exercise her Second Amendment rights to the fullest extent, she should stay in Alaska.

Open Carry

Some Second Amendment enthusiasts are asserting their rights to carrying handguns in holsters in public places.  Our advice on this is simple - if you are in California, even if the handgun is empty, don't carry or transport it in public if it is not empty and in a locked container.

Open Carry update, 2/14/2012  California Penal Code 26350 went into effect on 1/1/2012, making it illegal to carry an exposed firearm in a public place, even if it is unloaded

A good source of information on the complexities of California firearms laws is the website of the California Attorney General - www.ag.ca.gov.

UPDATE - June 28, 2010:

The Supreme Court decided McDonald v. Chicago.  In another 5-4 decision supported by the conservative justices (Justice Kennedy was the swing vote, as is always the case in 5-4 decisions in recent years), the Court ruled that an ordinance in Chicago banning handgun possession was a violation of the Second Amendment rights, that the court had declared in District of Columbia v Heller.  In an interesting historical analysis in the majority opinion, written by Justice Alito, the majority of the court emphasized the importance of the right of citizens to arm themselves, in their own homes, for the purpose of self defense.  

UPDATE - November 11, 2010:

A Navy Seal combat veteran, 1st Class Petty Officer Nicolas Burke, was arrested and charged with civilians Richard Paul and Andrew Kaufman with federal firearms violations.  They are accused of selling weapons that Burke had smuggled home from Iraq or Afghanistan.  Also seized in the investigation were C-4 explosives and hand grenades.  The price was $1,300 for AK 47s, and $300 for 9mm Ruger handguns.  The weapons were allegedly destined for gang members.  This is an unusual case, normally drug cartels and gangs who want to purchase weapons simply send straw buyers into the 7,000 licensed gun dealers that operate along the 2,000 mile border with Mexico.

UPDATE - May 20, 2011:

Several recent cases indicate that McDonald v. Chicago is not likely to subject to much expansion.  In the Vongxay case, 594 F.3d ____, the court held that Title 18 U.S.C. 922(g)(1), criminalizing the possession of firearms by felons is constitutional (prohibited persons actually include categories in addition to felons).  In United States v. Potter (2011), the Ninth Circuit Court of Appeals rejected the argument of Appellant that his conviction for Title 18 U.S.C. 924(c)(1)(a), possession of a firearm in furtherance of drug trafficking, violated his Second Amendment rights because the jury was not instructed that they must find that the possession of the firearm in his home was not also for the purpose of protecting himself, his family, and his property.

      On May 16, 2011, U.S. District Judge Morrison England, in Sacramento, ruled that McDonald v Chicago does not require county sheriff's to issue concealed weapon permits to all applicants who do not have criminal records and have completed a firearm safety training course.

UPDATE - February 12, 2011:

There are extreme variations in firearms laws in other states.  Arizona, Alaska, and Vermont allow people 21 years old or over to carry a loaded and concealed firearm, with few limitations.  New York is at the other end of the spectrum.  Plaxico Burress, the New York Giants wide receiver who was a star in their Super Bowl victory over the New England Patriots, was sentenced to two years in prison, in September of 2009, on a firearms violation.   The case arose from an incident in which he accidentally shot himself in the thigh in a New York night club, with a concealed pistol which had not been registered in New York.  With time off for good behavior, he will probably serve about 20 months, and hopes to resume his NFL football career.  This sentence resulted from a plea bargain.  If he had gone to trial and lost, the minumum sentence would have been three and a half years.

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