Written By Christopher B. Dolan
This week’s question comes from Jason P. from San Jose: I know you are personal injury lawyers but, read that you are also civil rights lawyers. I was wondering if you can answer my question on whether the new gun law in San Jose is constitutional?
Thanks for you question Jason. You are correct we are personal injury attorneys, as well as employment attorneys, and cover various civil litigation issues. At the same time, we wanted to share our thoughts on the question you have for us.
The Second Amendment to the Bill of Rights in the Constitution of the United States of America is a single sentence:
“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.”
Many outspoken proponents of the Second Amendment focus on the second half of that sentence while dismissing the first. But the first half of the sentence is of equal importance to the second not the least of which is because it includes the phrase “well regulated.”
Every right we have as Americans is subject to regulation or limitation. There are limitations on our First Amendment rights to freedom of speech, the most familiar being that no one has the right to yell “Fire!” in a crowded theater if there is, in fact, no fire. The Second Amendment is no exception. Ask any gun owner who lives in California about the State’s gun laws and you will surely get an earful about how overbearing, cumbersome and confusing they are. Gun owners in California are not legally permitted to buy many of the same guns that gun owners in Nevada or Arizona are. Gone are the days or ordering ammunition online and having it delivered to your home. Those purchases must now be made in person and require a background check. Similarly, California has no open-carry law for either handguns or rifles. Such activity is legal in 31 other states but is illegal within California.
Last week the city council of San Jose approved a proposed ordinance placing additional requirements on gun owners living within the city. This is the first law of its kind to be passed by any city in the United States. The new law would require gun owners to carry liability insurance to cover accidents and negligence. The law would also require gun owners to pay an annual $25 fee, the proceeds of which would be given to a nonprofit organization to fund crime prevention and assist victims of gun violence. It has been reported that approximately 50,000 to 55,000 households in San Jose own guns. The fee provision of the new law would generate somewhere around $1.3 million per year. Prior to last week’s city council vote, Mayor Sam Liccardo estimated that gun-related expenditures cost San Jose residents approximately $440 million per year.
At first glance, the new law (which has not yet taken effect) does not seem unreasonable or overly burdensome. Every person who operates a motor vehicle in the State of California is required to carry liability insurance for negligence and accidents. And every motorist is also required to pay annual fees to register their vehicle or renew their registration. There are bridge tolls and toll roads also that exclusively effect those driving cars and trucks and motorcycles.
Critics of the proposed law, however, say that there is no Constitutional right to drive a car or truck, while the right to own firearms is actually enshrined in the Constitution. Their argument is that you cannot regulate or tax a right guaranteed by the Bill of Rights. Gun ownership has been heavily regulated for as long as the Second Amendment has existed and many of those regulations have been upheld by multiple courts, including the Supreme Court. Recently, California’s ban on high-capacity magazines, magazines that can hold more than ten rounds of ammunition, was upheld by a 7-4 ruling from the Ninth Circuit Federal Court as not placing too great a burden on gun owners or constituting an improper infringement on their Second Amendment rights.
As with most “new” gun laws and regulations, San Jose’s new proposal, which is expected to take effect later this year, will most certainly be challenged in the courts. In fact, Colorado-based National Association for Gun Rights filed a lawsuit the same day San Jose’s city council preliminarily approved the bill. The group filed for an injunction in U.S. District Court in San Jose. That lawsuit is pending.
California has been a hotbed of gun control laws and subsequent litigation in the courts ever since passage of the passage of The Mulford Act in 1967 by the state legislature and signed into law by then-governor Ronald Reagan. Prior to 1967 it was legal to carry loaded firearms in public. During the late 1960s The Black Panthers availed themselves of this right by conducting armed patrols of Oakland neighborhoods, keeping an eye on local law enforcement. The Black Panthers also regularly showed up at protests at various city halls and the statehouse fully armed. The Mulford act was carefully crafted to prevent The Black Panthers doing this, and it was successful in that regard.
San Jose’s proposed new law has no such racial targeting component or intent. But we will have to wait for several years and endure multiple court challenges to learn whether the new law is, in fact, Constitutional or not.