The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Our Constitutional Rights … Should Not Hinge on a Where's Waldo Quiz"
From Judge Kenneth Lee's concurrence in today's Baird v. Bonta, joined by Judge Lawrence Vandyke:
California insists that citizens in counties with populations fewer than 200,000 people can apply for an open-carry license. Yet California admits that it has no record of even one open-carry license being issued. How could this be? One potential reason is that California has misled its citizens about how to apply for an open-carry license.
California has issued a 17-page application with the heading, "STANDARD INITIAL AND RENEWAL APPLICATION FOR LICENSE TO CARRY A WEAPON CAPABLE OF BEING CONCEALED." The first paragraph of the form then says that the law "requires the Attorney General to issue a statewide standard application form for CCW [Concealed Carry Weapon] licenses." Throughout the application, it uses the word "concealed" or "CCW" 67 times. But the phrase "open carry" is not mentioned once.
Most Californians would reasonably think that this form is used only for a concealed carry weapon permit. But they would be mistaken. A person seeking an open-carry permit must fill out a document described as a "Weapon Capable of Being Concealed" / "CCW [Concealed Carry Weapon]" form. This would be like a city telling its citizens that they can obtain a building permit for a fence in their front yard but not advising them that they actually have to submit a demolition permit form.
The only way that a Californian seeking an open-carry permit would know that she must submit a Concealed Carry Weapon form is if she scoured the dense 17-page document and found in small print on one of the pages that a "CCW license shall be issued … [w]here the population of the county is less than 200,000 persons according to the most recent federal decennial census, a license to carry loaded and exposed in only that county a pistol, revolver, or other firearm capable of being concealed upon the person." The reader can try to find that language in the form, which is attached as Appendix A to this concurrence.
Most Californians would have no clue. But that appears to be the very point—California tries to hide the fact that citizens in those counties have a right to open carry their weapon under the law. Our constitutional rights, however, should not hinge on a Where's Waldo quiz.
California routinely sues private companies for engaging in similar deceptive conduct. Under California law, a "reasonable" person should not "be expected to look beyond misleading representations" and scrutinize the form "to discover the truth … in small print" elsewhere. Yet that is exactly what California forces its citizens to do when they try to exercise their Second Amendment rights. Our own state government must behave better than an unscrupulous telemarketer….
This wasn't part of the majority, I take it, because the majority concluded that the as-applied challenges to the small-county licensing regime weren't properly procedurally preserved.
