Case Law on Second Amendment Challenges

The Second Amendment provides, "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." In District of Columbia v. Heller (2010) 554 U.S. 570, the Supreme Court held that the Second Amendment guarantees "the individual right to possess and carry weapons in case of confrontation." (Heller, supra, 554 U.S. at p. 592.) Heller cautioned, however, that "the right secured by the Second Amendment is not unlimited." (Id. at p. 626.) Indeed, Heller identified (and left intact) certain historically permissible restrictions on the right to bear arms: "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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." (Id. at pp. 626-627.) Heller further recognized existing prohibitions on carrying concealed weapons (id. at p. 626) or "'dangerous and unusual weapons'" (id. at p. 627). Heller clarified that its list did "not purport to be exhaustive" and that it identified "these presumptively lawful regulatory measures only as examples." (Id. at p. 627, fn. 26.) Heller then turned to the District of Columbia law at issue there, which "totally banned handgun possession in the home and also required that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable." (Heller, supra, 554 U.S. at p. 628.) The Supreme Court held the law was unconstitutional. (Id. at pp. 628-629.) The high court explained that the Second Amendment protects a person's right to possess a handgun in the home for self-defense and protection of family and property. (Heller, at p. 628.) The Supreme Court declared that the District of Columbia's ban of handguns from the home failed constitutional muster under any standard, thus expressly leaving open the question of the applicable standard of scrutiny. (Id. at pp. 628-629, 634.) Heller did suggest, however, that rational basis scrutiny would be insufficient: "If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect." (Id. at p. 628, fn. 27.) In Heller's aftermath, the Court of Appeal in People v. Flores (2008) 169 Cal.App.4th 568 (Flores) upheld section 12021(c)(1) against a Second Amendment challenge under facts similar to those before us. (Flores, at pp. 573, 577.) The defendant's section 12021(c)(1) conviction was based on his prior misdemeanor assault conviction under "section 245, subdivision (a)(1), which prohibits 'an assault upon the person of another . . . by any means of force likely to produce great bodily injury.'" (Flores, at p. 574). Flores observed that section 12021, subdivision (a)'s prohibition of felons from possessing firearms falls into one of Heller's recognized permissible restrictions. (Flores, at p. 574.) As to misdemeanants, Flores reasoned: "If, as Heller emphasizes, the Second Amendment permits the government to proscribe the possession of a firearm by any felon (including nonviolent offenders), we can see no principled argument that the government cannot also add certain misdemeanants, particularly those who have committed an assault by 'means of force likely to produce great bodily injury.' The public interest in a prohibition on firearms possession is at its apex in circumstances, as here, where a statute disarms persons who have proven unable to control violent criminal impulses." (Id. at p. 575.) Subsequently, People v. Delacy (2011) 192 Cal.App.4th 1481 (Delacy) involved another Second Amendment challenge to section 12021(c)(1)'s prohibition on misdemeanants' possession of firearms. (Delacy, at p. 1485.) The predicate misdemeanor in Delacy was battery under section 242 (Delacy, at p. 1485), which defines battery as "'any willful and unlawful use of force or violence upon the person of another'" (Delacy, at p. 1492). The defendant urged the appellate court to apply strict scrutiny to strike down section 12021(c)(1). (Delacy, at p. 1488.) The appellate court found it unnecessary to apply any standard of scrutiny balancing the statute's objectives against its means because, under Heller and Flores, section 12021(c)(1) is a presumptively lawful regulation (insofar as it prohibits "firearm possession by misdemeanants who have shown a propensity to commit violence against others") and is therefore immune from means-end scrutiny. (Delacy, at p. 1492; see also U.S. v. Marzzarella (3d Cir. 2010) 614 F.3d 85, 91 Heller's recognized historic restrictions are presumptively lawful not because "they pass muster under any standard of scrutiny," but, rather, because they "regulate conduct outside the scope of the Second Amendment" and "are exceptions to the right to bear arms".) Delacy noted that appellate courts were "generally unanimous in rejecting the application of means-end scrutiny to statutes disqualifying felons and certain misdemeanants from weapons possession until an en banc decision of the Seventh Circuit Court of Appeals, U.S. v. Skoien (7th Cir. 2010) 614 F.3d 638 (Skoien) and, more recently, . . . Chester, supra, 628 F.3d 673 . . . , which follows Skoien." (Id. at p. 1490.) Delacy disagreed with Skoien's application of intermediate scrutiny to determine the constitutionality of Heller's presumptively valid restrictions. In Delacy's view, "the Skoien approach gives too little weight to the 'presumptively lawful' language of Heller." (Delacy, at p. 1490.) The U.S. v. Chester (4th Cir. 2010) 628 F.3d 673 approach asks whether the challenged law restricts conduct historically protected by the Second Amendment and, if so, whether (under the intermediate scrutiny standard) there is a reasonable fit between the law and a substantial government objective. (Chester, at pp. 680, 683.) Chester concluded that: (1) "the possession of a firearm in the home by a domestic violence misdemeanant" (id. at p. 680) was not necessarily excluded from Second Amendment protection; (2) therefore the defendant was "entitled to some measure of Second Amendment protection to keep and possess firearms in his home for self-defense" (id. at pp. 681-682); (3) the government bore the burden of justifying the challenged law under the appropriate standard of scrutiny (id. at p. 682). Chester reached this conclusion, however, only because the government there did not contend that the challenged law involved conduct unprotected by the Second Amendment and because of the lack of historical evidence on this issue in the record. (Chester, at p. 682.)