The Constitution Right to Bear Arms in California

Penal Code Section 12021, subdivision (a)(1) prohibits possession of a firearm by a felon and section 12316, subdivision (b)(1) prohibits possession of ammunition by a felon. In determining whether sections 12021, subdivision (a)(1) and 12316, subdivision (b)(1) are constitutionally overbroad and invalid, "'we consider the following: "A statute is invalid on its face and wholly void only when incapable of any valid application. In determining a statute's constitutionality, we start from the premise that it is valid, we resolve all doubts in favor of its constitutionality, and we uphold it unless it is in clear and unquestionable conflict with the state or federal Constitutions. A challenge to a statute's constitutionality must demonstrate that its provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions. The corollary to the challenger's burden is that if the court can conceive of a situation in which the statute can be applied without entailing an inevitable collision with constitutional provisions, the statute will prevail. A statute is not facially unconstitutional simply because it may not be constitutionally applied to some persons or circumstances; at a minimum its unlawful application must be substantial and real when judged in relation to the statute's plainly legitimate sweep. Unless it is in total conflict with the Constitution, any overbreadth is cured by a case-by-case analysis of the particular fact situation. A statute will be declared invalid in its entirety only when its scope cannot be limited to constitutionally applicable situations except by reading in numerous qualifications and exceptions, i.e., rewriting it, or if it is invalid in certain situations and cannot be enforced in others without danger of an uncertain or vague future application. " ' 'A statute is only overbroad if it "prohibits a '"substantial amount of constitutionally protected conduct."'" ' " (People v. Yarbrough (2008) 169 Cal.App.4th 303 at p. 311.) In District of Columbia v. Heller (2008) 554 U.S. 570, the defendant was convicted of carrying a concealed weapon on residential property fully accessible to the public, in violation of section 12025, subdivision (a)(2) (carrying a loaded firearm in a public place). The majority in Heller, invalidated the provision, concluding that the Second Amendment guarantees "the individual right to possess and carry weapons in case of confrontation," self-defense, or other traditionally lawful purposes, unconnected with service in a militia. (Heller, at p. 592; see also Yarbrough, supra, 169 Cal.App.4th at p. 312.) The Heller court held "that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." (Heller, at p. 635.) The court in Heller recognized that "the inherent right of self-defense has been central to the Second Amendment right." (Id. at p. 628.) In McDonald v. City of Chicago (2010) U.S. 130 S.Ct. 3020, the court held that this right is incorporated into the due process clause of the Fourteenth Amendment and thus made applicable to the states. (Id. at p. 3050.) But the inherent right of self-defense is not unlimited. (Heller, supra, 554 U.S. at p. 626.) As defendant acknowledges in his appellate opening brief, the United States Supreme Court in Heller cautioned that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . . ." (Ibid.) The Heller court, however, specifically declined to determine which level of scrutiny should apply to restrictions on an individual's right to bear arms. Instead, the court concluded that certain "longstanding prohibitions" simply survive Second Amendment scrutiny. (Heller, supra, 554 U.S. at p. 571.) Sections 12021, subdivision (a)(1) and 12316, subdivision (b)(1), prohibiting felons, including nonviolent felons, from bearing arms, fall within this category of prohibitions which are permitted despite the right to bear arms afforded by the Second Amendment.