California General Ban on Nonresidents' Getting Concealed Carry Licenses Violates Second Amendment

From today's Hoffman v. Bonta, decided by Judge Cathy Ann Bencivengo (S.D. Cal.):

The sole issue in this case is whether the Constitution requires California to allow nonresidents to apply for a concealed carry weapons (CCW) license. Plaintiffs, who are not California residents, complain that they are prohibited from carrying a firearm for self-defense when they visit California. For standard two-year licenses, California imposes a residency requirement. An applicant who has his or her principal place of business or employment within the local permitting jurisdiction may receive a 90-day license. Unlike some states, California does not have a reciprocity policy for CCW licenses.

The State argues … that … the Second Amendment does not mandate that a traveler be allowed to use another state's license to carry in California. In effect, they argue that nonresidents do not qualify as "the people." The Supreme Court has not interpreted "the people" so narrowly. See Heller (the people "unambiguously refers to all members of the political community, not an unspecified subset")….

California [argues that its rule is justified by] historical analogues relating to various "locality-based licensing laws" from the mid-19th century…. The problem for the State is not the licensing laws themselves: Plaintiffs do not seek California's licensing scheme stricken in its entirety. Instead, the State must provide a historical analogue for licensing laws that did not allow nonresidents to apply. For that category of restriction, the State provides a series of state laws from the early 1900s that appear to impose residency requirements on licenses. Ignoring that these laws do not date to the Founding or Ratification Era, many laws from the same period explicitly allowed nonresidents to apply.

Earlier laws identified by the State also appear to support the Plaintiffs' position. For example, Connecticut in 1642 barred the sale of guns to those outside its jurisdiction unless the person possessed a license from a court or magistrate, without an explicit pre- application ban for nonresidents. The historical record also contains laws that provided "traveler exceptions" to carry laws. Sacramento law in 1876, cited by the State, specifically excepted "travelers" from a firearms licensing requirement that applied to residents….

[The state points to] Founding Era laws (from New Jersey and North Carolina) that barred nonresidents from hunting within their borders. Unlike the California law at issue in this case, the identified laws restricted only the activity of hunting, not bearing arms in general.

The State argues that the Court may extract a general principle that relevant regulations limited licenses to "acceptable" persons. But weighed against the guidance that a historical regulation must be "comparably justified," California cannot meet its burden with its proffered analogues. The State cannot point to a single law from the Founding or framing tradition that wholesale blocked nonresidents from participating in a general firearms licensing scheme….

Opening the application process to nonresidents does not limit California's ability to regulate who receives a CCW license based on other measured parameters. Nonresidents are simply afforded the same chance guaranteed to residents to exercise their Second Amendment rights. In reaching this conclusion, the Court agrees with its sister court in the Central District that the challenged statutory framework's exclusion of nonresidents violates the Second Amendment….

Nothing in this order should be construed to mandate that California provide the exact same requirements for a CCW license for residents and nonresidents—the historical record may well contravene such a proposition. [Spitzer Decl. ¶ 69 (identifying an 1899 Wyoming measure that imposed a fee forty times higher on nonresidents for a gun license).] Overburdening nonresidents in the application process may violate Plaintiffs' Second Amendment rights, but parity is not necessarily required….

Plaintiffs also seek a declaratory judgment as to whether California's enforcement of a nonresident ban violates the Privileges and Immunities Clause. U.S. Const., Art. IV, § 2, cl. 1. There is continuing debate on the scope of the Privileges and Immunities Clause. See generally William Baude, et al., General Law and the Fourteenth Amendment, 76 Stan.L. Rev. 1185, 1205–06 (2024).  Some courts have concluded that the Privileges and Immunities Clause has been cabined by precedent to economic rights. See, e.g., Culp v. Raoul (7th Cir. 2019).

Declaratory relief based on the Privileges and Immunities Clause would neither afford Plaintiffs additional remedies nor serve to clarify the contours of this constitutional provision. As such, the Court declines to rule on the requested relief.

Bradley Benbrook and Stephen Duvernay (Benbrook Law Group, PC) represent plaintiffs. One of the plaintiffs is the Firearms Policy Coalition, which also supported the litigation. I have consulted in the past for the FPC, but I wasn't involved in this case.

Comments

[Malika the Maiz]

Isn’t this analogous to saying non-residents couldn’t get a parade permit?

[Kleppe]

Free speech is a favored right. Keeping and bearing arms? Unfortunately, not so much.

[Dr. Ed 2]

"Connecticut in 1642 barred the sale of guns to those outside its jurisdiction"

King Phillips War (aka Metacom's Rebellion) was 1675 and one of the bloodiest wars ever fought in North America -- my guess is that they were worried about guns getting to the Indians.

[wvattorney13]

Even if that was an on-point law, which it isn't, it is not analogous. Nobody is asking to buy guns in California but to bring their own to California and carry them in the state.

Did CT forbid that in 1642?

[Area Man]

Countdown to the 9th Circuit reversing and SCOTUS denying cert.

[Stupid Government Tricks]

Faster countdown to some rabid response from Charles Nichols about the treasonous support of CCW litigation when they should be focusing on open carry.

[Krayt]

One or the other, but not both simultaneously, is at least some progress.

[wvattorney13]

Kavanaugh concurring in the denial saying that they'll get to it sometime around 2035.

[Social Justice is neither]

He's not old enough to be retiring so soon. Much better to pull the 25 years from now BS of Sandra Day O'Connor to ensure it's someone else's mess to deal with.

[David Gaw]

Seems to me that all "history and tradition" within states prior to 1868 should be properly understood to be irrelevant to the constitutionality of state guns laws as of the ratification of the 14th Amendment, and incorporation of the Second Amendment against the states. Restrictions on the right to keep and bear arms that were previously acceptable should have been recognized as no longer permitted as of then. Sometimes it takes a couple hundred years for the courts to catch up, it seems.

[minus the clever name]

David, this is ridiculous even as a logic exercise.

So look at the Pennsylvania Constitution

Article I, section 21 of the Pennsylvania State Constitution states: “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”

For you to go from that to "it can't stand because it is before a certain date " is just rank stupid. I am sure they are acceptable now as they were then, just not to you.

[Stephen Lathrop]

Restrictions on the right to keep and bear arms that were previously acceptable should have been recognized as no longer permitted as of then.

That begs the implied question. If the pre-14A right protected by the 2A was the militia right, and not an individual right of self-defense, then incorporation of that against the states would do nothing to create an individual right of self-defense within each state. That question would remain, as it previously had been, a matter to be addressed state-by-state, in state constitutions.

[Brett Bellmore]

" If the pre-14A right protected by the 2A was the militia right, and not an individual right of self-defense,"

Start from a false premise, end with false conclusions.

[Bruce Hayden]

SL seems to have missed, at a minimum, Heller. The Militia Clause was A reason to protect the Right To Keep And Bear Arms, but not The (only) reason. And he can thank the author and blog owner, EV, who provided much of the historical underpinnings, in part for that Supreme Court ruling.

[Area Man]

I actually think it might be the other way round. The militia was "necessary to the security of a free State." There was a fear that Congress would undermine the militia. Therefore, something had to be done to protect it.

There were several ways to go about doing so. For instance, they could have said, "A well regulated Militia, being necessary to the security of a free State, the right of the States to maintain a militia, shall not be infringed." Or it could have said, "A well regulated Militia, being necessary to the security of a free State, the United States shall never deny support for the militia or regulate it in such a manner that undermines its effectiveness." Many other variations could be imagined.

But obviously they didn't do those things. Instead, they took the *pre-existing, individual* right to keep and bear arms and made it the bulwark against the militia's destruction. By doing so, they necessarily added constitutional protection to that individual right as it was understood at the time. And the 14th Amendment later incorporated the right against the states themselves. As Heller recognized, the right to keep and bear arms is the operative part of the amendment regardless of its stated motive. As outlined above, they didn't *have* to constitutionalize the right to protect the militia, but they did. As a result, it must be respected regardless of some people's disdain for it.

[IANNAL]

Interesting. So does Trump's federalizing the CA National Guard violate the 2nd Amendment?

[Area Man]

Yes. Remember what I’m saying here: the RKBA was the mechanism they used to ensure a militia, it wasn’t how they established the militia per se. A state militia can still be a formal entity like the National Guard, and Congress can federalize it or delegate that decision to the president. And “the people” still have the RKBA, regardless of whether they’re in a militia or even eligible for military service (e.g., handicapped adults) because it’s an individual right. It’s just the stopgap against the dissolution of the militia. Since the people have the RKBA, they can always form a militia if need be. But the right remains an individual one because it was pre-existing and is now given constitutional protection.

[Krayt]

The amendment even mentions militia to contextualize the right.

That modern pols misuse that to claim the paradoxical and immediately self-contradictory power to completely ban it, does not change this.

Rather, focus on the "shall not be infringed" part.

[Brett Bellmore]

Sure, and I'll fault the modern Court for making the 2nd amendment primarily about self defense. Rather, self defense is one of our unenumerated rights, and as long as gun ownership is protected, being a right, it must be a lawful use of the firearms we have a right to possess.

But the actual purpose of making it an eumerated right was to assure an armed populace from which a militia could be raised. Assure that armed populace even if the government didn't WANT it to be possible to raise a militia!

The Court made it about self defense rather than the militia, because they didn't want to uphold the conclusion of Miller, that it was a right to military firearms. Scalia outright misrepresented the holding of Miller, when he wrote the Heller decision.

And I expect he knew he was doing it, too.

[Bubba Jones]

The need for the states to maintain a militia necessitates that Congress shall not infringe on individual rights to keep and bear arms.

It does not logically follow that States cannot infringe these rights. Even post civil war amendments.

As the purpose of the 2A was not for individual self defense. It was to ensure that the people had the weapons necessary to from a militia.

[Stephen Lathrop]

Bellmore — More question begging.

And by the way, a cite to any of Heller or its spawn is not in any way a historical citation about the contextual meaning of the 2A at the time of its passage and ratification. Get relevant and explicit citations from that era, excluding everything which came later, and we can begin an in-context investigation about the original meaning of the 2A. Absent that, like Scalia in Heller, you are tailoring made-up history to suit your modern preference.

By the way, because I do respect history, this is an argument you could potentially win. Just find clear, relevant citations, and I will concede whatever points those happen to support. Good hunting!

[minus the clever name]

It means we must know who is a legal resident and who isn't but I don't see any awareness here of that. The right to bear arms is a citizen's right and not an illegal alien's. OBVIOUSLY

[A Japanese Student]

The plaintiffs are United States citizens who lives in PA, ID, and NM (thus, nonresidents of California.) Should they choose to, they are free to move to the Golden State.

Noncitizens (of the US) not on immigrant visa would be barred by federal law from possessing firearms anyway. 18 U.S.C. §922(g)(5)(B).

[Jazzizhep]

Perfect solution!! If one doesn’t like unconstitutional laws while visiting California, one can just move there and problem is solved.

[Bruce Hayden]

Which means giving up your right to carry concealed in the states that don’t yet have Constitutional Carry. You can’t legally change your state residency every time you travel to another state. When I was still working, I would pop over to our Mountain View (San Jose) office from Reno on SWA, maybe monthly for half a day. Less than an hour in the air. Clearly far less than the genuine intent to reside in CA required for a change in residency, and not enough time to even apply for a DL. Besides, the reason that our tiny firm (before being merged into a large regional firm) moved to NV in the first place was to avoid CA income taxes (NV doesn’t have them).

[Bubba Jones]

Unless they get a hunting license.

[Krayt]

It's for taking up arms to defend the nation, including against its own government gone rogue, if necessary.

We even have immigrants who joined the military to defend our freedom, who were promised citizenship (just like in Starship Troopers!) and for some reason, some want to deport them anyway.

[ReaderY]

I continue to think that the 2nd Amendment protects only open carry and its protection does not extend to concealed carry.

[Brett Bellmore]

Channeling Nichols?

Surprisingly, I agree: The "bear" in keep and bear was open carry. In the founding era, concealed carry was considered the sort of thing criminals did. (Which is not to say they'd freak out about somebody deciding to carry in their pocket, just that you weren't supposed to go out of your way to hide your gun.)

Tell the Supreme court. They apparently didn't want to just uniformly strike down laws banning open carry, so they arrived at a compromise: Open or concealed, a state had to permit at least one.

So states can't ban open carry, and then ban concealed carry, too.

[Brett Bellmore]

"California [argues that its rule is justified by] historical analogues relating to various "locality-based licensing laws" from the mid-19th century"

Were they licensing exercise of a constitutional right? If not, I don't see how they represent any justification at all.

I do see that they were at least gun laws, which is something, anyway. But they're not founding era laws, so they fail the Bruen test anyway.

[wvattorney13]

I wish the Court would clarify that we are looking for a historical tradition of firearms laws, not a "let's look through the history books and see if we can pick out an obscure law" exercise.

When I think of tradition, I think of the 1A and libel and obscenity laws. We see what looks like absolute words of "free speech" in the 1A but see a tradition, both before and after its enactment of the government outlawing libel and obscenity. From that tradition we can infer that those restrictions were not meant to be superseded by the 1A.

If I were to Bruenize the 1A, I could point out that settlers at Jamestown were executed for criticizing the Virginia Company and conclude that the 1A doesn't protect government criticism. That's absurd.

But that's what courts are doing with the 2A. We play "find the law."

[Brett Bellmore]

I think you mean, "Rahimi-ize", not "Bruenize"; Bruen actually did proceed as you suggest, approaching the 2nd amendment in the same way we do the 1st.

The problem is that the Court, in Rahimi, did not follow the rule it had announced in Bruen, but instead only pretended to.

They're hardly going to get mad about the circuits doing what they're guilty of themselves.

[wvattorney13]

I personally think this is an easy case. The right to carry is one of our basic constitutional rights enumerated in the BOR (even if it can be infringed by a licensing scheme).

The privileges and immunities clause says that my constitutional rights go with me when I travel throughout the United States.

It seems fairly clear that CA must allow some licensing process by which I can carry while traveling through and in CA.

[Longtobefree]

The real question is why ANYONE needs a PERMIT to exercise a constitutional right.
Do any of the posters here have a first amendment permit?
Do I need to post a fourth amendment permit on my door to avoid illegal searches?

[wvattorney13]

You can blame Bruen for that. It didn't engage with that proposition but simply declared that shall issue licensing schemes were valid.

[Brett Bellmore]

"Presumptively" valid. Presumptively just means "we're not overturning them at this time". Presumptions can be overcome, after all.

[wvattorney13]

It said they were valid except where “lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”

Query how lengthy is too lengthy and how much of a fee qualifies as "exorbitant" to an "ordinary" citizen? What materials should a judge look toward to answer those questions? Should we pull a Casey and ask if the fee poses an undue burden on the people it affects?

Is $250 "exorbitant"? Is a month too lengthy? Bruen doesn't tell us, although that was a pivotal question because you know that even if CA loses here, they will require several in person visits for a non-resident permit plus a long wait time and a high fee.

[Rossami]

Comment withdrawn. I had a brain cramp and got my cases confused.

[Brett Bellmore]

Yeah, and every time I point out that "rights" are what you don't need the government's permission to do, and "licenses" are the government's permission to do something, I get mocked by the usual suspects. Who, of course, don't want it treated like a right, and are happy with any infringements they can get.

It's a constitutional obscenity that the Court permits the 2nd amendment to be subject to any sort of licensing requirements, even 'shall issue'.

[David Nieporent]

Do any of the posters here have a first amendment permit?

Have you not heard of parade permits?

[Aubrey LaVentana]

Is a parade permit a permission to speak, or petition the government for redress of grievance,

or

is it a permit to use a public thoroughfare for a use other than passage of traffic?

[JoeFromtheBronx]

"I continue to think that the 2nd Amendment protects only open carry and its protection does not extend to concealed carry."

A person doesn't have the right to carry an unloaded firearm (or any weapon) at all, huh? Seems extreme.

I think a state can determine that in some cases carrying an "arm" without doing so openly is part of serving in the militia. And the federal government should not interfere without a good reason.

If a state prohibits the carrying around of mace or a low wattage stun gun or various other things that can be concealed in a handbag, I think the 2A probably provides some protection.

Or it is protected by some other constitutional mechanism that protects the right to keep and bear arms such as the 4A (see, e.g., the dissent in QUILICI v. VILLAGE OF MORTON GROVE (695 F.2d 261).

[Bubba Jones]

The 2nd amendment nullifies all federal firearms restrictions. This serves to protect the state militias from interference.

It’s silent on the matter of firearms regulations by the states. There’s nothing to incorporate.

The choice by courts to shoehorn self defense rights into 2A is complete sophistry.

[John F. Carr]

Massachusetts got ahead of the game after Bruen and created a harsh regime that will probably hold up to Supreme Court review. There is a nonresident license to carry. If you carry without it you face a mandatory minimum 18 months in jail. Until the Court invents an Eighth Amendment balancing test for gun crimes, once the state can make you file a form the state can have you rot in prison for the rest of your life for failing to dot every 'i' and cross every 't'.