What Is The New Gun Law Being Considered in San Jose and is it Constitutional?

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.

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Without Jurors, The Light of Democracy Dims Remarkably

Written By Christopher B. Dolan

This week’s question comes from Frank T. in the Mission District: I got a jury summons in the mail. Why do I keep getting them? I don’t want to sit on a jury and take time away from work. My husband and I had a real hard time during COVID and taking time off work right now would be difficult.

Frank, I know this is a sentiment shared by many right now. The right to trial by a jury of one’s peers is enshrined in the Bill of Rights that was formed at the time of the birth of our Nation. When The Colonies were under British rule, citizens had no right to have members of their community decide their fate. Justice had become politicized, and it was administered pursuant to British law, and as a manner of repression, as the colonists were considered British subjects. British law was often unjust and unfair to the Colonists and failed to recognize the realities of living in the New World. This was one of the many injustices that spurned the birth of our Democracy. Trial by jury was, and largely remains, an American institution with most countries not offering jury trials to their citizens.

The right to trial by jury was established under and through the Seventh Amendment to the Bill of Rights. As such it was one of the original rights for which a war was fought, blood was spent, and lives were sacrificed. The right to trial by jury is also guaranteed by Section 16, of Article One, of the California Constitution.  

What was once considered a fundamental right and honor is now perceived by many as an annoying and disruptive inconvenience. Not to minimize the impact that you feel jury service has upon your personal circumstances, too many of us now take for granted our democratic freedoms, rights and responsibilities. Jury service is an apolitical right and in today’s environment where the courts have become more politicized, the fact that a jury pool is drawn from a broad cross-section of our community is perhaps one of the most apolitical aspects of our Democracy.  

As your name, Frank, suggests that your pronoun is male, and you reference your spouse with the pronoun he, I deduce that you are in a same sex marriage.  (If my assumption is incorrect, please forgive me.) I want to put this into some perspective: imagine if you or your husband were accused of a crime, were the victim of a hate crime, or been deprived a civil right based upon your sexual orientation.  If you lived in another state, not as progressive as California, the judge might be an elected or appointed official who is homophobic, or against gay marriage, and she/he would be the sole decisionmaker on your case. That prejudice could very well affect the outcome of your case and be demoralizing. Likewise, were no members of the LGBTQ community to heed the call to jury service, you would not receive a jury of your peers.  

No one knows the case you have been summoned for as of now. Jurors are randomly selected from DMV records, voting rolls and other public sources of information and, until the day you show up at the courthouse, there is no way to know what type of trial, or what type of issue, is involved. In San Francisco, if you are summoned to 400 McAllister Street chances are that it is a civil trial involving disputes between two parties, two businesses, or an individual seeking justice against much more powerful interests such as corporations and/or the government. If you are summoned to 850 Bryant Street, it is most likely a criminal case.  

Since COVID-19 began, I have tried two cases to verdict, one in September against a police department and officer where there was a claim of unlawful and excessive use of force resulting in a shooting and one against an insurance company for injuries suffered in a collision. I selected juries, presented the facts, and received verdicts in favor of my clients who otherwise would never have received justice. Had jurors not shown up, my clients would never have had their chance to receive fair and impartial justice. We would never have been able to stand up to the police and, quite possibly, given the judge and venue in another state, we would not even have had a chance, much less won.

The right to trial by jury is already threatened by big monied interests that don’t want trial lawyers like me to balance the power dynamics. Organizations which I am proud to be a member of, such as the American Association of Justice, and the Consumer Attorneys of California, fight diligently and spend millions of dollars annually, contributed by members such as myself who believe in this right, to help elect pro-justice, pro-civil rights and pro-7th Amendment legislators to help preserve the right to trial by jury.  

Many jurors, originally reluctant, after serving their jury service are glad they did it. They feel proud of being a group of twelve (or six in Federal Court) who participated. I hope you take the call to service and have a meaningful experience. Lastly, just because you are called for jury duty doesn’t mean you will serve. Many times, jurors are not needed as a case gets resolved or settled. Even if you are called into court, most jurors do not get selected, as often more jurors are called then end up being needed.

I hope this helps you see things in a different light. Without Jurors, the light of democracy dims remarkably. 

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