On June 26, 2008, one week plus a day before our nations 232nd birthday, the US Supreme Court affirmed the right that Americans have had since before the government was formed, the right to bear arms. The second amendment to the US constitution reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The court’s opinion declares what we have always known, the right is an individual right to have guns that are “in common use” to provide for self defense. Although this was the first ever definitive statement on the second amendment from the court, the necessity for this ruling has been only brought about by implementation of nearly 2000 laws over the last 40 years that have placed severe restrictions on this right by federal, state and local governments. The rationale for these laws was to attempt to reduce criminal violence using guns that the nation has been facing. However most of the laws have had no affect on reducing crime, and the reality is that communities with the greater restrictions have the worst crime problem. The reason that the gun control laws have not worked is because they have mostly addressed the disarming of honest citizens thus reducing their ability to defend themselves against criminals who ignore the laws.
The court also established a “strict scrutiny” approach to evaluating other laws than the DC law. This is the same scrutiny required for other rights, i.e. the First Amendment. Thus, we are on the verge of many lawsuits being filed to roll back many laws that infringe on our constitutional rights. We hear a lot about the need of “incorporation” into the laws of the 50 states so that all Americans enjoy the rights not just those under direct federal jurisdiction. It is certainly debatable whether incorporation is required for a natural right that pre-existed the US constitution. However, it is important to understand that there should be no debate about incorporation in the State of California. Article 3, section 1 of the California constitution reads: “The State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land.” This clearly makes rights guaranteed by the US constitution the rights of Californian’s. So incorporation is not necessary in our state.
We have many laws that infringe on our second amendment rights and when tested with “strict scrutiny” are unconstitutional. Some of them are:
1. San Francisco’s ban on guns in the homes of people who live in public housing.
– Just like the DC case.
2. The ban on Gun Shows in Alameda County.
– An infringement on the 1st and 2nd amendment rights.
3. The requirements of magazine release disable, loaded chamber indicator, full capacity
magazines and microstamping on pistols.
– These are guns commonly used by the public for self defense.
4. The ban on certain types of semiautomatic weapons with cosmetic features considered
undesirable by some of the public.
– This is irrational and arbitrary. It bans the most popular rifle being sold in America today,
5. The waiting period after an instant background check when purchasing a gun.
– “A right delayed is a right denied” Quote from Martin Luther King
6. The arbitrary and unequally applied concealed carry rules in the state.
– The rules are different in every county. Some are shall issue, some are no issue and
some have varying degrees in between two.
7. The requirement that guns openly carried only be unloaded.
– This obviously makes the gun unusable for self defense. This is similar to the
requirement in DC that guns be unloaded and disassembled and was struck down.
There are also three laws currently in the senate and passed by the assembly that will perpetuate the infringement of our rights and are obviously unconstitutional. They are AB2062 (ammo Registration), AB2235 (Smart Guns), and AB2948 (No Gun or Ammunition Sales at Cow Palace). To pass these laws given the latest US Supreme Court ruling would be a major error.
It is unfortunate that citizens must sue their elected government to ensure that their rights are not infringed. A better solution would be for the State Legislature to change the infringing laws. Please consider my requests and feel free to contact me if you would like discuss this further.