California forced to allow concealed carry – restrictions apply

Following the Court’s landmark decision in N.Y. State Rifle & Pistol Ass’n v. Bruen, which held that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home (N.Y. State Rifle & Pistol Ass’n v. Bruen, (2022) 142 S. Ct. 2111, 2122), California has passed Senate Bill 2 which seeks to align the state’s law with the Court’s decision. Senate Bill 2 is slated to take effect Jan. 1, 2024. Until then, current California law generally prohibits the open and concealed carry of a handgun or non-handgun (i.e., rifle, shotgun, carbines, etc.) in a public place or on a public street, subject to certain exceptions. Currently, the average person must obtain a Carry License to be generally exempt from the loaded and concealed (and in some cases open) carry restrictions in public. (California Gun Laws, (2023) C.D. Michel with Matthew D. Cubeiro.)

Senate Bill 2 amends existing California law to allow for a non-disqualified individual to apply for and receive a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person if that person is at least 21 years or age and presents clear evidence of identity and age, is the recorded owner of the firearm, has completed a training course at least 16 hours in length (up from the 16 hour previous maximum), and is a resident of the city or city and county in which the application is sought. (Cal. Pen. Code Section 26150, (2024).) Senate Bill 2 thus eliminates the good cause requirement for the issuance of said permit to carry, and whose counterpart version in New York’s Sullivan Law was struck down by the Court in Bruen. (Bruen, 142 S. Ct. 2122.) However, unlike in the Court’s 2008 decision in District of Columbia v. Heller, which listed felons and the mentally ill as examples of disqualified individuals from the carrying of firearms, California has greatly expanded the list of who is a disqualified individual from obtaining a permit to carry a concealable firearm in public. (District of Columbia v. Heller, (2008) 554 U.S. 570, 626.)

Under Senate Bill 2, a disqualified person encompasses at least 10 categories of people, including anyone: who, within the past 5 years, was subject to virtually any type of temporary restraining order regardless of whether an order after hearing was denied, was convicted of a DUI or any other alcohol or controlled substance-related offense, or is abusing lawfully prescribed pain medications or marijuana. (Cal. Pen. Code section 26202(a), (2024).) A disqualified individual also includes any person who is reasonably likely to be a danger to themselves, others, or the community at large. (Id.) In order to make the determination of whether the individual is such a danger, the licensing authority may refer the applicant for up to two rounds of psychological assessments with an assessor whom they specify, with the applicant responsible for paying the costs. Additionally, the licensing authority is mandated, amongst other things, to conduct an in-person interview with the applicant, personally vet at least 3-character references, and check all social media or any other publicly available information about the application. (Cal. Pen. Code section 26202(b), (2024).)

Assuming that an individual can pass a background check to become licensed to carry a concealable firearm in public, the list of locations that the individual can carry said firearm is essentially limited to public streets and sidewalks or private property where the owner specifically allows it. Under Senate Bill 2 and Penal Code section 26230, the list of locations that are prohibited from the public carry of concealable firearms grows to 29 enumerated locations such as: any public transit, wherever alcohol is sold, any permitted public gathering or special event, playground, park, public or private college, stadium or arena, zoo, amusement park, place of worship, financial institution, and others. Additionally, while out in public with a permit to carry up to 2 firearms under Senate Bill 2 and Penal Code Section 26200(d), the licensee cannot consume or be under the influence of an alcoholic beverage or any Schedule I – V controlled substances, be in any bar or liquor store, fail to carry the license to carry on their person, carry a firearm other than ones they are permitted to carry, or violate any federal, state, or local criminal law.

Provided that an individual seeks to obtain a permit to carry a concealable firearm in public, the licensing authority has up to 90 days to provide the applicant notice based upon its initial investigation whether the applicant is a disqualified person. (Cal. Pen. Code section 26202(d), (2024).) The licensing authority may establish its own appeal procedures which the applicant must exhaust before the applicant may request a hearing to review the denial or revocation of the license from the superior court of their county of residence. (Cal. Pen. Code section 26206(c)(1), (2024).) This appeal process must be resolved within 60 days of the appeal being filed. (Cal. Pen. Code section 26206(c)(2), (2024).) If the licensing authority doesn’t provide for an appeal process the applicant must file a request for a hearing to review the denial or revocation of the license from the superior court of their county of residence within 30 days of the denial or forfeit the right to obtain the license. (Cal. Pen. Code section 26206(c), (2024).)

In summary, Senate Bill 2 provides non-disqualified individuals the ability to carry a concealed firearm in public, in a limited fashion. Whether Senate Bill 2 will pass constitutional muster is a different question. Heller stated that the Second Amendment has allowed the prohibition of the carry of firearms in sensitive places, such as schools and government buildings. (Heller, 554 U.S. at 626.) Senate Bill 2 has expanded the definition of sensitive places to at least 29 different locations. Further, the Court in Bruen stated that, even when the state allows for public carry, the Court will not “rule out challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.” (Bruen, 142 S. Ct. 2111, 2139 (FN 9).) Whether 5 months of potential waiting time preceded by up to 2 rounds of psychological testing and a minimum of 16 hours of training denies ordinary citizens their right to carry is an issue which may be litigated as well. Moreover, whether California’s prohibitions on who can carry and under what circumstances they can carry will also likely be challenged. The Bruen Court has plainly held that “[o]nly if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command” protecting an individual’s right to carry a handgun for self-defense outside the home. (Bruen, 142 S. Ct. 2111, 2126.)