The Second Amendment Remains Under Threat by Sacramento

A day before California Attorney General Xavier Becerra was confirmed as U.S. Secretary of Health and Human Services, his office disposed of an embarrassing matter.

Becerra’s Department of Justice filed a signed settlement agreement in federal court in Sacramento that requires the immediate suspension of all investigations and prosecutions, statewide, of people suspected or accused of failing to register their “assault weapons,” because the department’s online registration system was another state government technology train wreck.

California has regulated the purchase and possession of firearms defined as “assault weapons” since the 1989 Roberti-Roos Assault Weapons Control Act. The definition has been expanded through the years, and it encompasses commonly owned firearms. In 2016, state lawmakers widened the definition to include semi-automatic firearms with a magazine locking device. This device is commonly referred to as a “bullet button.” It slows down the normal magazine release function by requiring the user to engage the release mechanism using a tool or an object such as the tip of a bullet.

Once a firearm is designated as an “assault weapon,” California imposes criminal liability on otherwise law-abiding citizens who possess, transport or use these firearms. However, people who already owned them are “grandfathered” as long as they register the “assault weapons” with the state by a legal deadline.

The 2016 law that was Assembly Bill 1135 and Senate Bill 880 set a June 30, 2018, deadline for registration of “bullet button” firearms. It also directed the California Department of Justice to set up an online system to enable gun owners to register.

That’s when it became another chapter in California’s astonishingly terrible record of failed technology projects.

On July 11, 2018, a lawsuit was filed against Becerra and the California DOJ by the Calguns Foundation, the Firearms Policy Coalition, the Second Amendment Foundation and individual plaintiffs including Harry Sharp, who had tried to use the system to register their firearms and found the state website to be “largely inaccessible and inoperable.” As the deadline drew closer, the system crashed repeatedly, preventing lawful gun owners from completing the registration process.

The Sharp v. Becerra lawsuit simply asked for the opportunity for applicants to complete the registration process and have the state consider it timely.

You might think Becerra and the DOJ wouldn’t have a problem with that, but you’d be wrong. The state fought the lawsuit, leaving potentially thousands of gun owners at risk of criminal charges.

Remember that these are people who weren’t bothering anybody. They weren’t guilty of anything until the state retroactively created new conditions for owning lawfully acquired property.

Becerra tried to have the lawsuit dismissed, but in June 2019, U.S. District Judge Morrison C. England noted the state’s “deliberate indifference” and allowed the case to move forward.

For all this time, many Californians have had criminal liability hanging over their heads through no fault of their own, and that was just fine with Attorney General Becerra, right up until the moment he was on the cusp of a U.S. Senate confirmation vote for his nomination to become Secretary of HHS in the Biden administration.

A coincidence, no doubt.

By another coincidence, gun ownership is up in California. In 2020, about 1.17 million new guns were registered and more than 300,000 people went through the state’s background check for firearms for the first time. Here’s something important for new gun owners to know: California is one of only a handful of states that does not have “the right to keep and bear arms” in its state constitution.

Of course, Californians are protected by the Second Amendment of the U.S. Constitution, but the U.S. Supreme Court has not yet clearly defined the boundaries of the states’ power to pass laws limiting the rights of gun owners. In general, states are permitted to infringe on a “fundamental right” if they can show a “compelling” reason, and if the restrictions are “narrowly tailored.” That leaves a lot of room for interpretation based on the subjective personal views of federal judges.

If the state constitution guaranteed the right to keep and bear arms, people who want to protect their rights as gun owners could challenge California’s gun laws in state court. As it stands, state residents are forced to rely on the federal courts. And because the guidance from the U.S. Supreme Court isn’t clear, the state Legislature can pass grandstanding laws that can be enforced for years or decades before costly legal challenges are resolved.

Sometimes a settlement is reached, and that’s what happened in Sharp v. Becerra. The state government has agreed to pay more than $150,000 in plaintiffs’ legal fees, create a reliable process for registration both online and on paper, and make sure that all investigations and prosecutions for failure to register under the 2016 law are suspended.

Another Second Amendment case, Miller v. Becerra, is currently pending in San Diego federal court. This lawsuit was filed by the Firearms Policy Coalition and other groups in August 2019 to challenge the state’s ban on “assault weapons,” arguing that the state’s laws, policies and practices in this area are both unconstitutional and irrational.

It’s certainly irrational that Californians are denied the rights of Americans in other states just because politicians want to be seen as “doing something” and they like to do it to gun owners.

An initiative that amends the state constitution to add “the right to keep and bear arms” would go far toward protecting Second Amendment rights in California.

Hang on to those clipboards from the recall petitions. You never know when you might need them again.

 
Susan Shelley is a columnist and member of the Editorial Board for the Southern California News Group.