California’s Politicians Step Up Their Disregard for Second Amendment

COMMENTARY Firearms

California’s Politicians Step Up Their Disregard for Second Amendment

Oct 30th, 2019 5 min read

Commentary By

Amy Swearer

Senior Legal Policy Analyst

Patrick Featherston

Fall 2019 member of the Young Leaders Program at The Heritage Foundation

California Gov. Gavin Newsom has signed into law 17 more gun-related bills, almost all of which further infringe on the constitutional rights of law-abiding gun owners. Justin Sullivan / Staff / Getty Images

Key Takeaways

California’s “gun violence restraining order” laws already were a due process nightmare.

Among California’s 17 new gun-related laws is one that allows judges to issue red flag orders that revoke a person’s Second Amendment right for up to five years.

The Second Amendment is a check on the tyrannical impulses of government and a protection of the natural right of self-defense.

California long has been known as a place where leaders have little regard for the Second Amendment. But the state has outdone itself in recent weeks. 

First, San Francisco’s city government adopted a resolution condemning the National Rifle Association as a “domestic terrorist organization” for having the audacity to insist that the constitutional rights of law-abiding citizens not be infringed.

Then, California Gov. Gavin Newsom, a Democrat, spent the month of October signing into law 17 more gun-related bills, almost all of which further infringe on the constitutional rights of law-abiding gun owners. 

Among them was a retooling of the state’s already-problematic “gun violence restraining order” laws to further undermine due process for gun owners accused of being dangerous. Others significantly increase arbitrary burdens imposed on lawful gun owners.

Red Flag Law Now More Problematic

California’s “gun violence restraining order” laws already were a due process nightmare. These types of laws—also known as “red flag laws”—create a process by which otherwise lawful gun owners may have their firearms seized because of evidence showing they are a serious risk of danger to themselves or others. 

If Second Amendment rights are to be abridged for someone who has not been convicted of a crime, red flag laws should require high burdens of proof, offer those whose rights are threatened immediate opportunity to challenge the orders, and be applied only in the most dangerous of cases. 

None of these is the case in California, where the red flag law long has spurned these basic due process protections.

For example, judges in California already can issue 21-day “emergency” orders to take firearms from law-abiding citizens where there is “reasonable cause” to believe a person is dangerous. In reality, this is a low burden of proof that easily can result in an individual losing his or her constitutional right for up to three weeks, based on little more than accusations by angry exes or petty neighbors. 

Moreover, judges already may consider as “evidence of dangerousness” whether a person lawfully had purchased a firearm within the last six months, meaning it could deprive individuals of their Second Amendment rights based solely on how recently they had exercised them.  

Even the American Civil Liberties Union—far from a Second Amendment advocacy group—has come out against the expanded provisions, saying the effort “poses a serious threat to civil liberties.”

well-crafted red flag law should provide only for temporary removal of rights. Many states that have enacted red flag laws limit them to six months or one year and require the state to prove by clear and convincing evidence that the individual remains sufficiently dangerous to justify a renewal of the order. 

Among California’s 17 new gun-related laws is one that allows judges to issue red flag orders that revoke a person’s Second Amendment right for up to five years.

Arbitrary Barriers to Lawful Gun Ownership

Along with the expanded red flag law provision, several of the new laws also impose significant and arbitrary barriers to lawful gun ownership.

Assembly Bill 1297 removed a previous $100 cap on the amount local law enforcement agencies may charge to applicants for concealed carry permits for the “cost of processing the application.” 

It is already difficult to obtain a concealed carry permit in many California counties, and an additional $100 presents a significant burden for many would-be permit holders. Imagine the outrage should any state implement a $100 processing fee on a permit to obtain an abortion. 

This measure, like most of the burdens imposed on the right to keep and bear arms, disproportionately harms low-income residents who are most likely to live and work in the areas where personal security is most threatened.

The real problem, however, is much deeper than allowing agencies to increase an already significant burden on the exercise of a constitutional right. The legislation allows counties to charge more if they “need” to offset costs. If it costs more than $100 to process the permit, the problem is the amount of red tape for processing the permit. 

Instead of incentivizing agencies to make concealed carry permits more expensive, the state should focus on removing the absurd regulatory barriers that make issuing the permits so expensive in the first place.

Similarly, a companion law now allows the California Department of Justice to require that firearms sellers impose a $31.19 fee on every lawful gun purchaser, the revenue from which will be used to cover government expenses for enforcing California gun laws. 

Like all “sin taxes,” this additional burden on lawful purchases affects only lawful buyers and will not present a meaningful barrier to (or punishment for) unlawful gun ownership.  

The tax also implies that lawful gun owners are specifically at fault for the criminal use of firearms and must be preemptively forced to pay for those crimes and their negative impact on society, even though lawful gun owners rarely engage in criminal shootings. 

Moreover, many of the costs of California’s enforcement system can be attributed to the fact that the state has imposed a myriad of complicated, unnecessary, and, frankly, unconstitutional regulations on gun owners in the first place. 

As one federal district court judge noted in a recent opinion striking down a California regulation on magazines, there already are many ways “in which the state’s firearms laws are so complex as to obfuscate the Second Amendment rights of a citizen who intends to abide by the law.” 

The state created its own insane legal and regulatory burdens and now wants law-abiding gun owners to foot the bill for those burdens.  

Finally, Senate Bill 61 removed a portion of California law allowing 18-to-20-year-olds to acquire semi-automatic rifles if they had hunting licenses. The original requirement of obtaining a hunting license already was constitutionally absurd. The Second Amendment is not about hunting; it’s a check on the tyrannical impulses of government and a protection of the natural right of self-defense.

But now, young adults in California are relegated to an even more severely limited exercise of a constitutional right, despite the fact that they are, in every respect, full-fledged citizens entitled to all the corresponding rights and duties of citizenship—including the right to keep and bear arms. 

A Kernel of Good (Almost)

California did manage to pass one law that actually may play an effective and constitutional role in protecting the public.

Assembly Bill 1548 enacts a grant program providing up to $200,000 for certain at-risk nonprofit organizations, including houses of worship, to improve the physical security of their buildings against “hate-motived violence.”

The funding can be used for reinforcing doors, installing alarm systems, and even hiring security guards. Although California could better serve at-risk individuals and organizations by removing barriers to obtaining concealed carry permits and allowing more citizens to use firearms to adequately defend themselves, this law is at least a step in the right direction.

In the end, though, this one unobjectionable new law does not nearly compensate for the tremendous blow struck to the constitutional rights of Californians by the other 16 new laws.

This piece originally appeared in The Daily Signal