A New Supreme Court Ruling May Affect Gun Laws In California
Wednesday, July 7, 2010
The U.S. Supreme Court has just extended to all the states its 2008 ruling that the right to bear arms is an individual right. What does this mean to local guns laws in California? We'll hear from pro and anti-gun advocates.
MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh. You're listening to These Days on KPBS. It's the kind of U.S. Supreme Court decision that's left some legal experts holding their breath. Many say the court's extension of an individual right to bear arms to all states does not substantially alter its decision about individual gun rights two years ago. But others say now we may be in for years of lawsuits as both gun advocates and opponents try to find answers to the question of what a citizen's right to bear arms actually means. I’d like to welcome my guests on this topic. Bryan Windenthal (sic), is a specialist in 2nd Amendment Law at the Thomas Jefferson School of Law. And, Professor Windenthal, welcome.
BRYAN WILDENTHAL (Professor, Thomas Jefferson School of Law): Thank you. It’s Wildenthal, actually.
CAVANAUGH: Wildenthal. Thank you so much. Sam Paredes is executive director of the Gun Owners of California. Sam, welcome.
SAM PAREDES (Executive Director, Gun Owners of California): Thank you. A pleasure to be here.
CAVANAUGH: And we invite our audience to join the conversation. Does the Supreme Court ruling on guns give us all more freedom or does it make you nervous? Give us a call with your questions and comments. 1-888-895-5727. And, Professor Wildenthal, I wonder what exactly does this new ruling by the U.S. Supreme Court do?
WILDENTHAL: Well, there’s kind of two levels. And thank you for inviting me, of course. There’s two levels at which this ruling is interesting and very important. The specific level is, of course, it’s about the 2nd Amendment and the right to bear arms, and that certainly has great specific importance both for gun rights advocates and gun control advocates. The broader level of the ruling, the kind of more general significance is that it’s part of a series of rulings by which the Supreme Court has applied most, and now almost all, of the Bill of Rights guarantees to the states through the 14th Amendment. The 2nd Amendment right to bear arms is just one of a number of Bill of Rights guarantees like our 1st Amendment right of free speech, our 5th Amendment right not to incriminate ourselves, you know, 4th Amendment rights to – against search and seizure, etcetera. And so that’s kind of a part of a longer saga historically whereby the court has progressively taken these Bill of Rights liberties and has applied them to the states. So…
WILDENTHAL: …in that broader sense, it is an advance, I guess, for individual rights although, certainly, there is controversy and concern. Any right does potentially carry some dangers, could protect criminals, dangerous speech, dangerous activities like using guns.
CAVANAUGH: Why, Professor, was it necessary to make basically the same ruling about the 2nd Amendment to apply to all the states?
WILDENTHAL: In addition, you mean, to the ruling two years ago in which the…
WILDENTHAL: Well, yeah, well that kind of captures this interesting fact that the – that our basic liberties in the Bill of Rights, strictly speaking, only apply to the federal government through the Bill of Rights itself. It’s only through the 14th Amendment, enacted after the Civil War, that these rights apply to the states. So the ruling two years ago applied only to the District of Columbia as a federal enclave, and it simply said the federal 2nd Amendment right did protect the individual right at least to possess a gun in the home. This ruling was necessary a few weeks ago to clarify whether that right would also apply against state laws, city and county laws throughout the country. Chicago was where the case arose that the court decided two weeks ago. So that’s the difference, really. So it’s kind of nationalized this right to bear arms, which previously was only clarified two years ago to limit the federal government or federal enclaves like District of Columbia.
CAVANAUGH: And so now it – So this ruling does technically apply to all the states…
CAVANAUGH: …and counties and cities and so forth.
CAVANAUGH: Some of the dissenting justices warned that it will produce an avalanche of lawsuits. Do you agree with that, Professor?
WILDENTHAL: It will probably generate some lawsuits. I guess whether it’s an avalanche I guess depends on how many people are motivated. But, yeah, any time the court kind of opens the door and says that there is, in principal, some legal right, then certainly you’ll have a lot of individuals and groups testing the limits to see how far this would go. And that is, you know, that is something the courts will have to sort out.
CAVANAUGH: Sam Paredes, you’re executive director of the Gun Owners of California. I’m wondering, is your organization celebrating this decision?
PAREDES: Absolutely, we are. We are celebrating the decision. We think that for the first time it gives us an opportunity to go to court to overturn many of the laws that are on the books that we have always said are unconstitutional and violated our 2nd Amendment rights. And now the Supreme Court says that, yeah, state and local governments are going to have to pay attention to the Constitution when they’re passing laws that affect those 2nd Amendment rights. And as the professor very aptly stated, we will be going to court to see what that actually means. We have a very definite opinion of what that means and we’re going to go to court to express those beliefs.
CAVANAUGH: Well, Sam, for instance, what kind of gun laws would you like to see overturned in California.
PAREDES: Well, you see, this ruling, and if you read both Heller and McDonald, but in particular Heller, they were talking – the judges were talking about a – the government completely banning a category of guns and, in particular, hand guns, which are accepted by the vast majority of American citizens as the appropriate tool to defend oneself in their home. And they said that the government cannot ban these whole categories of guns. Well, here in California, we have multiple bans on entire categories of guns. The so-called assault weapons ban in California bans a whole category of semi-automatic firearms that are available for Americans to buy in 49 states except here in California. We have a ban on the .50 caliber BMG rifles that are legal throughout the country but not here in California. We have a ban on a vast group of hand guns through our so-called state hand gun law or the drop test law that we have where manufacturers have to submit firearms for testing before it is legal for them to be sold in California. And that law itself has been – it’s been Christmas-treed with a lot of politically correct types of requirements. And, in effect, most of the new hand gun models that have been coming out in – for purchase in America are unavailable to Californians, so we will be testing that also.
CAVANAUGH: I see. Okay, my guests are Professor Bryan Wildenthal. He is with the Thomas Jefferson School of Law, an expert in 2nd Amendment law. Sam Paredes is executive director of the Gun Owners of California. We have another attorney on the line but first a caller. We are taking your calls, by the way, at 1-888-895-5727. Assemblywoman Lori Saldana is on the line with us. Good morning, and welcome to These Days.
LORI SALDANA (California State Assembly, 76th District): Good morning. Well, thank you very much for hosting this discussion. It is, of course, important here in California where we’re dealing with some gun and ammunition laws in this legislative session. And I just wanted to make it clear that the Supreme Court also mentioned in this opinion that this does not give carte blanche to have guns anywhere at any time and the reasonable restrictions are still under the purview of state and local governments. So as much as this ruling did say a person may own a gun for personal safety and the McDonald plaintiffs were quite compelling, senior citizens who felt personally threatened, the dissenting opinion also made it very clear this does not say we’re taking every reasonable control over guns off the books. So I wanted to make that point.
CAVANAUGH: Right, and Assemblywoman Saldana, while I have you on the line, I know that there’s a move underway in the Senate in Sacramento, basically, to get the unloaded – that open carry loophole that some call it, the idea that people can – are free to carry unloaded weapons in public places, to close that loophole in the law. Where is that in the legislative process?
SALDANA: Well, the bill did pass the Assembly floor a month ago. It is in the Senate. It will be up for a hearing in the Senate very soon on the Senate floor, probably in August. And that is an attempt to regulate where guns are openly carried, unloaded guns, in part because we’ve had demonstrations here in San Diego and in the Bay area and increasing around the state of people openly carrying guns for the sole purpose of – well, it’s not clear what their purpose is, frankly, but they are – tend to do it in areas that are not high crime rate areas and they tend to make our – The police chiefs are supporting the bill because they often have been called to respond to these calls of open carriers and they feel it’s just a matter of time before someone winds up being shot for openly carrying a gun and not understanding the accountability and responsibility that comes with that.
CAVANAUGH: Lori Saldana, thank you so much for calling in. I appreciate it. It was good to hear your voice on this. Thank you so much.
SALDANA: Thank you.
CAVANAUGH: I want – Joining us now is Ben Van Houten. He’s attorney with the Legal Community Against Violence in San Francisco. And good morning, Ben.
BEN VAN HOUTEN (Attorney, Legal Community Against Violence): Good morning.
CAVANAUGH: Now we just heard from Sam Paredes that he would like to – his organization, Gun Owners of California, and people of like mind, would like to see some of California’s gun laws overturned. And I know that San Francisco, has some of the strictest gun laws in the state. Do you see any of them at risk because of this Supreme Court ruling?
VAN HOUTEN: Well, I think it’s important, first of all, to focus on the relatively narrow ruling in both the Chicago case and in the District of Columbia case before it. In both cases, the court suggested that a hand gun ban violates the 2nd Amendment, struck down D.C.’s hand gun ban, and suggested that the Chicago ban is a – will be struck down because it prevents an individual from possessing a gun in the home for self defense purposes. That’s the narrow right that we’re talking about here…
VAN HOUTEN: …and none of the laws that have been discussed so far seem to prevent an individual from exercising that right.
CAVANAUGH: I see. Do you see that the decision, that the right to bear arms is an individual right – might mean for future efforts to ban guns in this state then?
VAN HOUTEN: Well, I think the focus in California isn’t acting on – is enacting common sense regulations that do not prevent people from – to prevent law-abiding citizens from exercising their 2nd Amendment right. I mean, the focus that we have, as you heard from Assembly member Saldana, is on preventing chances for dangerous behavior in public and helping law enforcement fight gun crime, those are the sorts of things that we’re focused on.
CAVANAUGH: And what is your major concern about this ruling, Ben, if any?
VAN HOUTEN: Well, I think after Heller, after the District of Columbia case a couple years ago, what you saw was a massive amount of litigation about the 2nd Amendment. We’ve been tracking litigation following Heller and I can count over 200 legal challenges from criminal defendants and plaintiffs as well, arguing that some law or another has violated their 2nd Amendment right. Now that the 2nd Amendment has been expanded to apply to state and local governments there’s no reason to think that that number won’t exponentially increase.
CAVANAUGH: And, Ben, I’m just wondering as – when you hear Sam basically saying that there are going to be these challenges, how do you think that our gun laws will stand up to those challenges based on this new Supreme Court ruling?
VAN HOUTEN: I don’t think anything in the Supreme Court ruling suggests that the California gun laws that are on the books today are in any danger.
VAN HOUTEN: Because they don’t prevent a person from possessing a firearm in the home for self defense.
CAVANAUGH: Is there any – Do we have any reliance that it’s going to be interpreted that narrowly?
VAN HOUTEN: Well, the court has, you know, the court has provided relatively limited guidance on how to evaluate firearms challenges so far. Lower courts, in evaluating the District of Columbia opinion, have generally rejected 2nd Amendment claims and the court in McDonald, the Chicago case, as well as in the District of Columbia case, said that, you know, this doesn’t mean the right to possess a firearm anytime anywhere. And the court actually provided a list of a number of different examples of laws that are Constitutionally, you know, laws prohibiting felons from possessing firearms or laws prohibiting the carrying of firearms in sensitive places. And that’s just the tip of the iceberg of the common sense laws that don’t violate the 2nd Amendment.
CAVANAUGH: I want to thank you so much for speaking with us, Ben.
VAN HOUTEN: Absolutely. Thank you.
CAVANAUGH: Ben Van Houten is attorney with the Legal Community Against Violence in San Francisco. I’d like to reintroduce my guests. Professor Bryan Wildenthal. He’s a specialist in 2nd Amendment law at Thomas Jefferson School of Law. And Sam Paredes is executive director of the Gun Owners of California. And we’re taking your calls at 1-888-895-5727. Professor Wildenthal, how does California stand among states in its gun laws? Is it more restrictive than most?
WILDENTHAL: More restrictive than some, I think. Certainly we have the statewide law restricting assault weapons…
WILDENTHAL: …and certainly some local governments in California are stricter with regard to, say, concealed carry than many states throughout the country where maybe there’s more of a strong gun rights attitude. I think Assembly member Saldana and the other caller are both correct in the sense that the Supreme Court has indicated that reasonable regulations of guns will generally be upheld and they’re also correct that the specific scope of these two recent decisions was narrow in the sense that the specific holding was just that you – a city like Chicago or like D.C. could not completely or almost completely ban possession of a gun, a handgun in the home for self defense. However, whenever the Supreme Court issues a ruling, there’s the specific holding and then there are kind of the logical implications of it. It seems unlikely that the court will restrict the right to bear arms to simply possessing within the home because the language of the 2nd Amendment says ‘the right to keep and bear arms’ which would seem to imply it’s not limited to the home and there are obviously many lawful uses of guns for hunting or self defense outside the home.
WILDENTHAL: So it’s not clear that they can just, you know, any law that stops short of banning a gun in the home will be upheld. At the same time, you know, I think that probably I tend to agree with the caller that most existing California laws are not likely to be thrown out. We won’t know for sure until there’s some litigation and there’s some further court lawsuits and that’ll be kind of – the courts will work that out. The courts tend to take it one step at a time. They’ll decide the case they have to decide that’s brought before them, so they decided the specific laws in Chicago and D.C., those went too far. If possible laws like in San Francisco, I’m not familiar with the details there, but some areas might have laws that might be struck down but I tend to think the ban on assault weapons is likely to be upheld because the court may view that as a reasonable limitation on one particularly dangerous type of weapon.
CAVANAUGH: Sam Paredes, I’m wondering, what does your organization, the Gun Owners of California, see as a reasonable regulation to the ownership of guns?
PAREDES: Well, we believe that law abiding citizens should have the right to acquire and possess and use the firearms of their choice. We think that in listening to the discussion that the Supreme Court had and Justice Scalia’s decision in Heller and while they were questioning the attorneys before the Supreme Court, the whole issue of the militia was something that was discussed in quite a bit of detail. It was really amazing. And I think that a lot of the justices understood that we, all of us, of appropriate age and citizens of the United States do make up the unorganized militia. And there was a discussion about the fact that the militia, in the times of our founding fathers, were expected to show up when called upon with arms of their own ownership and of equal stature with those who were called to the standing army.
CAVANAUGH: Right. I want…
PAREDES: So that’s amazing.
CAVANAUGH: I’m wondering, though, do the Gun Owners of California support laws that require background checks or wait times between purchases and that kind of thing?
PAREDES: We do not support waiting periods. We think they are completely ineffective. They don’t do anything. We have the capability of an instant background check in California. We don’t use it for political reasons, not for technology reasons. We also have an issue here when a citizen, a law abiding citizen, is required to prove that he is innocent and law abiding before he can exercise a Constitutional right. That’s an issue that will be discussed in court, and that will take into account things like the background checks and the registration schemes of all kinds and types that really don’t serve any purpose for solving any crime. There’s a great fear amongst a lot of gun owners that the only purpose for having a registration system is to have a government in place knowing where all the guns are so in the eventuality that they try to take them away, they know where they are.
CAVANAUGH: Let’s take a call. Maria’s calling us from La Jolla. Good morning, Maria. Welcome to These Days.
MARIA (Caller, La Jolla): Oh, a pleasure to be on your program. I wanted to bring up another point of view. I was born in the United States but lived both in Latin America and in Europe for most of my formative years. And most Europeans feel that the Constitution which was written in what, 1789, at a time when the United States was a totally different country, you were in constant danger from Native Americans, from wild animals, it was a frontier country. And they feel that nowadays, we really don’t need to have firearms. Most European countries and most of the developing countries have very stringent gun laws and this is reflected in their crime rates. We have the highest rate of crime of any of the developed countries. Our penal system is totally out of control. How does the professor and our – the advocate for basically no gun laws feel about other countries which seem to be doing a much better job at protecting their populations?
CAVANAUGH: Let me get a reaction. Thank you, Maria. So let me put that to you, Sam, first of all, and then I’ll go to the professor.
PAREDES: Sure, countries like Mexico who have extremely strict gun control laws on their citizens, and their crime rate – The only reason their crime rate is not listed higher than here it is in America because they treat and categorize many of the drug-related crimes, the terrorism crimes through a different category. But, in fact, you get all the laws in the world are not preventing the criminals from doing whatever they want, getting whatever they want, using whatever they want, anytime they want. All of these laws affect only the law abiding citizens who have every right to defend themselves against the criminal element. With regards to Europe, they, you know – it’s amazing that people forget to mention countries like Switzerland, accepted as one of the most civilized countries in the world, where all males, basically all citizens, have fully automatic machine guns and hand guns with ammunition in their own home. Everywhere, they are all members of the militia until they reach a certain age, at which time those guns are handed to them by the government and they still maintain them by law. And their crime rate is very low. So…
CAVANAUGH: Professor, let me get a response. Excuse me, Sam, let me get a response from Professor Wildenthal.
WILDENTHAL: Yeah, well, I think, yeah, the record is kind of mixed around the world. I think it’s a little bit difficult to draw good conclusions about crime rates and gun ownership. And the gentleman’s correct that some countries with very high rates of gun ownership have very low crime rates, and some areas of high gun control have high crime rates and vice versa. Certainly, we do have a serious crime problem in the U.S. I think it has a number of different causes. I think – On the other hand, I think there are certainly laws which we have on the books like the background checks which probably should be made stronger and probably should be extended to things like gun shows where people are currently able to purchase guns without much effective background checking. And I think the court – there’s very little sign that the court would strike down regulations like that. I think it’s quite likely they would view those as a reasonable regulation. Now the concern is, well, does that restrict a Constitutional right but that begs the question of what is the scope of the Constitutional right. The court has indicated that the scope of the Constitutional right here is only a right for law abiding citizens to possess guns subject to reasonable regulations so in that sense it is a more limited right than, say, the right of free speech. So I think there is plenty of room for the courts to uphold appropriate, you know, gun safety regulations but at the same time I think the court, if they follow through in this decision, are not likely to restrict law abiding persons in using a reasonable range of weapons inside and outside the home for lawful purposes.
CAVANAUGH: And, Professor, briefly because we’re running out of time, there was a dissenting opinion in this case. It said something about that it restricts the rights of individual communities that decide through a democratic process that they would like to get guns out of their community. Now can individual communities do that in light of this Supreme Court ruling?
WILDENTHAL: Well, no, because once the court has interpreted and decided that something is an individual Constitutional right, the very meaning of that is then that governments and majorities cannot override that. We certainly wouldn’t let individual communities, even by democratic majority vote, shut down a newspaper or restrict the right of free speech. So it’s a controversial issue. The dissenters, I think in very good conscience, were concerned and disagreed with their colleagues about the scope of this right but there has to be a decision at some point and now that the majority of the court has said this is a Constitutional right, it simply follows naturally that governments cannot simply because a majority may want to cannot restrict that right. The courts will now have to sort of determine outer limits, which will be a difficult ongoing process…
WILDENTHAL: …through many lawsuits.
CAVANAUGH: I want to thank you so much Bryan Wildenthal for joining us.
WILDENTHAL: Thank you very much for inviting me.
CAVANAUGH: And Sam Paredes, thanks so much.
PAREDES: It’s my pleasure.
CAVANAUGH: And if you would like to comment, please do. Go online, KPBS.org/thesedays. Thank you for listening. You have been listening to These Days on KPBS.
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