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By Kamala D. Harris

It has been a little over one year since the U.S. Supreme Court decided District of Columbia v. Heller, 128 S. Ct. 2783 (2008), its first major Second Amendment case in nearly 70 years. Interested groups, including district attorneys, police chiefs, public health experts, law professors and elected officials, filed some 20 amicus briefs in Heller, urging the court to craft a holding that left intact as much existing criminal gun laws as possible.

As state and federal cases have interpreted Heller, it has become clear that virtually all California gun laws were left intact by the high court's opinion, including statutes outlawing concealed or loaded firearms in public and prohibitions on certain people, such as felons, from possessing guns.

The objective of this article and self-study test is to assess the impact of District of Columbia v. Heller on California penal statutes. Readers will learn about the scope of the Heller opinion, California laws that criminalize the possession and use of firearms, and how appellate cases subsequent to Heller have upheld those laws.

District of Columbia v. Heller

The Supreme Court in Heller held that the Second Amendment of the Constitution invalidated a District of Columbia law controlling the possession of firearms. In so doing, Heller found that the Second Amendment protects "the individual right to possess and carry weapons in case of confrontation," self-defense or other traditional purposes, even if not connected with service in a militia.

Heller emphasized the broad nature of the statute at issue in its case. Heller pointed out that the D.C. law constituted an "absolute prohibition of handguns held and used for self-defense in the home," and was also a "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." The court further noted that the D.C. handgun ban "amounts to a prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society for th[e] lawful purpose" of self-defense, and added that "The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute."

Heller concluded that "under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home 'the most preferred firearm in the nation to 'keep' and use for protection of one's home and family'" violated the Second Amendment. Heller thus struck down as unconstitutional the District of Columbia law.

'Heller's' Limits

Heller might not have any impact on California whatsoever due to the incorporation doctrine. The provisions of the Bill of Rights apply only to federal courts, territories, U.S. possessions and the District of Columbia until they are incorporated or applied to the states. See Gideon v. Wainwright, 372 U.S. 335 (1963). Since Heller dealt with a District of Columbia law, its opinion technically only controls federal courts and D.C. Heller admitted that the issue of incorporation was not presented by its case. Both the U.S. and California Supreme Courts held long ago that the Second Amendment does not apply to the states, although these holdings occurred prior to modern developments in constitutional law. See U.S. v. Cruikshank, 92 U.S. 542 (1875); In re Rameriz, 193 Cal. 633 (1924).

Even if the Second Amendment does apply to the states, Heller itself indicated that there are considerable limits to the right to bear arms: "Like most rights, the right secured by the Second Amendment is not unlimited," and is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

Heller set forth a nonexhaustive list of lawful regulatory measures permitted under the Second Amendment. One permissible ban articulated by Heller was on carrying concealed weapons, noting that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues."

Heller further noted that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

Heller also observed that as traditionally applied, the sorts of weapons protected by the Second Amendment were those "in common use at the time," finding that "that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons,'" and meaning that "M-16 rifles and the like - may be banned."

The standard of scrutiny that should be used to assess gun laws was left undecided by Heller. Heller did indicate that the most forgiving standard - rational basis scrutiny - should not be used because even the D.C. law it reviewed would pass that standard. As pointed out by one of the dissenting opinions in Heller, using the most powerful standard - strict scrutiny - is also not called for because even the gun laws approved by the Heller majority would fail under that test. Possibly some intermediate scrutiny level such as an "undue burden" standard should apply.

California's Gun Laws

California has myriad laws designed to deter and punish possession of guns and gun-related violence. Some create separate crimes for use of firearms, others add time in prison when firearms are used in underlying crimes, while others outlaw possession of guns by themselves.

Falling in the first category are crimes for shooting a firearm at a vehicle or building, shooting a gun in a grossly negligent manner and brandishing a firearm in a rude, angry or threatening manner. Penal Code Sections 246, 246.3, 417. There are also many enhancements related to guns, such as for committing a felony using a firearm, committing a felony armed with a firearm and having a firearm available while in possession of a controlled substance. Penal Code Sections 12022.5, 12022(a); Health and Safety Code Section 11370.1.

It is clear that Heller did not invalidate these types of laws. Heller's new right did not immunize the use of firearms during the commission of crimes.

Offenses relating to possession of a firearm fall within three broad categories: statutes barring certain types of firearms; laws criminalizing possession of guns in certain places; and laws prohibiting enumerated persons from possessing guns.

For example, it is illegal to possess assault weapons, short-barreled rifles, and machineguns, even if not used in committing other crimes. Penal Code Sections 12020(a)(1), 12220(a), 12280(b). In addition, many types of exotic firearms are also outlawed, including cane guns, undetectable firearms, and wallet guns Penal Code Section 12020(a)(1).

Several statutes also criminalize the possession of guns in designated locations. For example, it is unlawful to carry a loaded gun in many public places, to possess a firearm within 1,000 feet of a school and to carry a concealed firearm in public or in a car. Penal Code Sections 12031(a), 626.9, 12025(a).

Many individuals are barred from possessing firearms, including people previously convicted of any felony. Penal Code Section 12021(a)(1). People who have been previously convicted of designated misdemeanors, such as assaults and stalking, also cannot possess firearms. Penal Code Section 12021(c)(1). People ordered to not possess guns due to a condition of probation or a restraining order can also be punished for possession. Penal Code Sections 12021(d)(1), (g)(1).

Impact on California Laws

Two state Court of Appeal opinions that have become final have weighed Heller's effect on California gun laws. Both upheld the California statutes at issue, and in both cases the California Supreme Court denied the defendants' petitions for review.

In People v. Yarbrough, 169 Cal.App.4th 303 (2008), the defendant was convicted of possession of a concealed firearm in a driveway open to the public under Penal Code Section 12025(a)(2). Yarbrough upheld the conviction, finding that nothing in Heller invalidated California's concealed weapons laws. The Court of Appeal reasoned that Heller was only concerned with possession of a firearm in one's home, and that Penal Code Section 12025(a) did "not broadly prohibit or even regulate the possession of a gun in the home for lawful purposes," as was the case with the D.C. law invalidated in Heller. Yarbrough further found that carrying a concealed firearm in public was also "not in the nature of a common use of a gun for lawful purposes that the court declared to be protected by the Second Amendment in Heller."

Likewise, People v. Flores, 169 Cal.App.4th 568 (2008), upheld convictions for carrying a concealed firearm in a public place, possession of a loaded gun in a public place and possession of a firearm by a person barred from having a gun due to a prior misdemeanor assault conviction. Penal Code Sections 12025(a)(2), 12031(a)(1), 12021(c)(1). Flores noted that Heller itself emphasized that prohibitions against concealed weapons were traditionally viewed as valid. Regarding having a loaded gun in public, Flores noted that this statute was far removed from the blanket restriction at issue in Heller, noting that Penal Code Section 12031 makes exceptions for security guards, self-defense and possession in one's home. Lastly, Flores found that since Heller approved laws barring felons from possessing guns, the government should also be allowed to bar possession by designated misdemeanants, especially those previously convicted of assaults like the defendant in the case before it.

Every federal court that has applied Heller has upheld the gun law being reviewed. Many of the laws reviewed were directly analogous to California gun statutes.

For example, U.S. v. Fincher, 538 F.3d 868 (8th Cir. 2008), upheld criminalizing possession of a machinegun. U.S. v. Gilbert, 2008 U.S. App. LEXIS 15209 (9th Cir. Unpub. Opn. 2008), upheld outlawing short-barreled rifles. Mullenix v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 2008 U.S. Dist. LEXIS 51059 (E.D.N.C. 2008), upheld outlawing semi-automatic rifles. U.S. v. Yancey, 2008 U.S. Dist. LEXIS 77878 (W.D. Wis. 2008), upheld a statute barring unlawful users of controlled substances from possessing guns. U.S. v. Erwin, 2008 U.S. Dist. LEXIS 78148 (N.D. N.Y. 2008), upheld a conviction for a possessing gun in violation of a restraining order. U.S. v. Marzzarella, 595 F. Supp.2d 596 (W.D. Pa. 2009), upheld barring possession of a handgun with an obliterated serial number.

Adam Winkler noted in the Huffington Post that as of early 2009, there had been 60 federal cases in which gun laws were upheld despite Heller, and none that struck down a gun statute.

Given the limitations that Heller imposed on the new right to bear arms, this pattern is likely to continue, and it will probably be only a matter of time before all California criminal gun statutes are upheld as constitutional.

Kamala D. Harris is district attorney for the city and county of San Francisco.

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