IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Transcription

1 0 0 Alan Gura (Calif. Bar No. ) Gura & Possessky, PLLC 0 N. Columbus St., Suite 0 Alexandria, VA 0..0/Fax 0.. Donald E.J. Kilmer, Jr. (Calif. Bar No. ) Law Offices of Donald Kilmer, A.P.C. Willow Street, Suite 0 San Jose, CA 0../Fax 0.. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Deanna Sykes, et al., ) Case No. :0-cv-0-MCE-KJM ) Plaintiffs, ) MEMORANDUM OF POINTS ) AND AUTHORITIES IN SUPPORT v. ) OF PLAINTIFFS MOTION FOR ) SUMMARY JUDGMENT John McGinness, et al., ) ) Defendants. ) ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT COME NOW e Plaintiffs, Deanna Sykes, Andrew Wiam, Adam Richards, Second Amendment Foundation, Inc., and The Calguns Foundation, Inc., by and rough undersigned counsel, and submit eir Memorandum of Points and Auorities in Support of eir Motion for Summary Judgment. Dated: August, 00 Respectfully submitted, Donald E.J. Kilmer, Jr. (Calif. Bar No. ) Alan Gura (Calif. Bar No. ) Law Offices of Donald Kilmer, A.P.C. Gura & Possessky, PLLC Willow Street, Suite 0 0 N. Columbus St., Suite 0 San Jose, CA Alexandria, VA 0../Fax /Fax Don@DKLawOffice.com By: /s/donald E.J. Kilmer, Jr./ By: /s/alan Gura/ Donald E.J. Kilmer, Jr. Alan Gura Attorneys for Plaintiffs

2 0 TABLE OF CONTENTS Table of Auorities ii Preliminary Statement Statement of Facts The Regulatory Background Defendants Customs, Practices, and Policies Plaintiffs Experiences Wi Defendants Challenged Policies Summary of Argument Argument I. The Second Amendment Protects The Right To Carry Handguns For Self-Defense II. The Second Amendment Is Incorporated As Against Defendants By Operation Of The Fourteen Amendment III. A. The Privileges Or Immunities Clause Incorporates The Second Amendment B. The Due Process Clause Incorporates The Second Amendment The Right to Arms in Our Legal Tradition The States Treatment of e Right to Arms The Interest Secured by e Right to Arms California Has Selected Concealed Carrying As The Permissible Mode of Exercising The Right To Arms IV. Defendants Challenged Policies Are Unconstitutional A. Defendants Policies Rejecting Self-Defense As A Basis For Issuing Handgun Carry Permits Are Unconstitutional B. Defendants Challenged Policies Violate The Right To Equal Protection C. Defendants Challenged Policies Violate The Right To Travel V. Plaintiffs Have Been And Continue To Be Injured By Defendants Unconstitutional Policies Conclusion i

3 TABLE OF AUTHORITIES 0 Cases Andrews v. State, 0 Tenn. () ,, Apeaker v. Secretary of State, U.S. 00 () Aymette v. State, Tenn. (0) Bach v. Pataki, 0 F.d (d Cir. 00) Benton v. Maryland, U.S. () City of Cleburne v. Cleburne Living Center, U.S. () City of Las Vegas v. Moberg, P.d (N.M. Ct. App. ) Cruzan v. Dir., Mo. Dept. of Heal, U.S. (0) District of Columbia v. Heller, S. Ct. (00) passim 0 Duncan v. Louisiana, U.S. () , Dunn v. Blumstein, 0 U.S. 0 () , Eisenstadt v. Baird, 0 U.S. () Erdelyi v. O Brien, 0 F.d ( Cir. ) Gannett Co. v. DePasquale, U.S. () Gideon v. Wainright, U.S. () Greenlaw v. United States, S. Ct. (00) Griswold v. Connecticut, U.S. () Guillory v. County of Orange, F.d ( Cir. ) Harper v. Virginia Board of Elections, U.S. () Havens Realty Corp. v. Coleman, U.S. () Houghton v. Shafer, U.S. () (per curiam) Hussey v. City of Portland, F.d 0 ( Cir. ) In re Application of McIntyre, A.d 00 (Del. Super. ) In re Brickey, 0 P. 0 (Idaho 0) Int l Broerhood of Teamsters v. United States, U.S. () Kellogg v. City of Gary, N.E.d (Ind. 0) , ii

4 0 0 Kent v. Dulles, U.S. () Lawrence v. Texas, U.S. (00) Madsen v. Boise State University, F.d ( Cir. ) (per curiam) , Mallock v. Eastly, Eng. Rep. 0, Mod. Rep. (C.P. ) Maloney v. Cuomo, F.d (d Cir. 00) Miller v. Texas, U.S. () Mills v. District of Columbia, F.d, 00 U.S. App. LEXIS (D.C. Cir. July 0, 00) Muscarello v. United States, U.S. () National Rifle Ass n v. City of Chicago, F.d ( Cir. 00) Nunez by Nunez v. City of San Diego, F.d ( Cir. ) , Nunn v. State, Ga. () ,, Papachristou v. City of Jacksonville, 0 U.S. () Perkins v. Endicott Johnson Corp., F.d 0 (nd Cir. ) Planned Parenood v. Casey, 0 U.S. () , Poe v. Ullman, U.S. () Price v. Georgia, U.S. (0) Robertson v. Baldwin, U.S. () Rochin v. California, U.S. () Saenz v. Roe, U.S. () ,, Salute v. Pitchess, Cal. App. d () , Shapiro v. Thompson, U.S. () , Shuttleswor v. City of Birmingham, U.S. () State ex rel. City of Princeton v. Buckner, S.E.d (W. Va. ) , State v. Chandler, La. Ann. (0) ,, State v. Delgado, P.d 0 (Or. ) State v. Kerner, 0 S.E. (N.C. ) State v. Reid, Ala. (0) , iii

5 0 State v. Rosenal, A. 0 (Vt. 0) The Slaughter-House Cases, U.S. ( Wall.) () Town of Castle Rock v. Gonzales, U.S. (00) United Food & Commercial Workers Union Local v. Brown Group, Inc., U.S. () United States ex rel. Bennett v. Rundle, F.d (rd Cir. ) (en banc) United States ex rel. Hetenyi v. Wilkins, F.d (d Cir. ) United States ex rel. Latmore v. Sielaff, F.d ( Cir. ) United States v. Baugh, F.d 0 ( Cir. ) United States v. Carolene Products Co., 0 U.S. () United States v. Cruikshank, U.S. () United States v. Emerson, 0 F.d 0 ( Cir. 00) United States v. Everist, F.d ( Cir. 00) Weinberger v. Salfi, U.S. () Williams v. State of California, Cal. d () Youngberg v. Romeo, U.S. 0 () Zobel v. Williams, U.S. () Constitutional Provisions U.S. Const., amend. II passim U.S. Const. amend. VI U.S. Const. amend. VIII U.S. Const. amend. XIV passim Statutes Cal. Elections Code Cal. Gov t Code.(b) Cal. Gov t Code iv

6 Cal. Gov t Code Cal. Gov t Code Cal. Penal Code Tex. Gov t Code.(a) Tex. Penal Code.0(a) Oer Auorities Akhil Reed Amar, Substance and Meod in e Year 000, Pepp. L. Rev. 0 (00) Black s Law Dictionary ( Ed. ) Br. of Amici States Texas, et al., Supreme Court No Br. of Amici States Texas, et al., Supreme Court Nos. 0-, Br. of Amicus State of California, Supreme Court Nos. 0-, 0- (July, 00) , Cal. Joint Budget Committee Analysis, SA -RF00, Dec., Cal. Joint Budget Committee Analysis, SA 00-RF00, Dec., Eugene Volokh, Implementing e Right to Keep and Bear Arms for Self-Defense: An Analytic Framework and a Research Agenda, UCLA L. Rev. (00) Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, Tex. Rev. L. & Pol. (00) Richard L. Aynes, Constricting e Law of Freedom: Justice Miller, e Fourteen Amendment, and e Slaughter-House Cases, 0 Chi.-Kent L. Rev. () The American Students Blackstone (G. Chase ed. ) v

7 0 0 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT PRELIMINARY STATEMENT Defendants policies wi respect to e issuance of gun carry permits are clearly established. The only question is wheer ese policies are constitutional. They are not. Defendant Sheriffs and eir respective counties maintain near-complete bans on e carrying of handguns for self-defense by ordinary, law-abiding individuals. These bans are not compelled by California law, which provides Defendants auority to license e carrying of handguns. Nor are ese bans consistent wi Plaintiffs rights under e Second and Fourteen Amendments. The law is clear: law-abiding individuals in our country are generally entitled to carry handguns for self-defense. Plaintiffs do not challenge e concept at Defendants have an interest in regulating firearms in e interest of public safety, just as Defendants have an interest in regulating e time, place, or manner of speech or public assemblies. Nor do Plaintiffs challenge e idea at e state may maintain a system of licensing e carrying of firearms, just as e state might license parades or demonstrations. But e regulatory interest here is not absolute. It is curtailed by e right to keep and bear arms, rooted in e inherent and natural human right of self-defense. To be sure Plaintiffs do not claim at ere is a constitutional right to carry concealed weapons any more an ere is a constitutional right to carry weapons openly. Whatever an individual s preference, precedent confirms at e right is simply to carry weapons, and at legislatures may choose to specify e manner of doing so. California chooses to ban e open carrying of functional handguns and permit eir concealed carry. Accordingly, permits to carry arms may not be denied to ordinary, law-abiding citizens such as Plaintiffs who can demonstrate basic competence wi a firearm and who wish to carry a handgun for self-defense. STATEMENT OF FACTS The Regulatory Background California law generally bars e open carrying of functional firearms, allowing e practice only in unincorporated areas or, wi a special license, in select sparsely populated

8 0 0 counties. SUF. California law also prohibits e concealed carrying of functional firearms wiout a license. SUF. Accordingly, for most people and roughout most of e state, a license to carry a concealed weapon provides e only legal option available to ose who wish to carry firearms for self-defense. SUF. Applicants seeking a license to carry a handgun must pass a criminal background check, SUF, and successfully complete a course of training in e proper use of handguns. SUF. Applications for a permit to carry a handgun are made to e Sheriff of e county in which e applicant eier resides or spends a substantial period of time in owing to e applicant s principal place of employment or business being located in at county. SUF. Alternatively, application may be made to e chief or oer head of a municipal police department of any city or city and county in which e applicant resides. SUF. In addition to e successful completion of a background check and training, e issuance of a permit to carry a handgun is left to e discretion of e issuing auority, based upon at auority s determination at an applicant is of good moral character, [and] at good cause exists for e issuance of e permit. SUF. Issuing auorities must publish policies regarding e issuance of handgun carry permits. SUF. Defendants Customs, Practices, and Policies In practice, e issuance of permits to carry handguns varies widely among California jurisdictions. Some issuing auorities almost never issue handgun carry permits, oers issue permits only occasionally, and yet oers liberally issue permits to most if not all law-abiding applicants. Defendants are sued because ey fall in e first category. Defendants John McGinness and Ed Prieto are e Sheriffs of Sacramento and Yolo Counties, respectively. SUF 0,. Under California law, McGinness and Prieto are issuing auorities for a permit to carry a concealed handgun. SUF,. On a public website maintained by Defendant Sacramento County, Defendant McGinness lays out his policy for determining applications to carry handguns. Defendant McGinness explains at [t]he mere fear of victimization, or desire to carry a firearm, shall be insufficient good cause to issue a gun carry permit. SUF. Defendant McGinness also explains at [w]hat may be good cause in one

9 0 0 area of e county may not be in anoer area. SUF. Defendant McGinness furer requires one year minimum residency in Sacramento County. SUF. Recently, Defendant McGinness advised at owing to budget cuts, he would be forced to lay off many deputies and curtail his department s ability to respond to crime. Defendant McGinness offered at to offset such cuts in his police force, he might adopt a more permissive policy toward issuing permits to carry handguns. SUF. Stated McGinness, If we wind up wi six patrol cars patrolling e entire county of Sacramento, I have no choice but to make some changes in terms of e issuance of concealed weapons permits. SUF. McGinness added, In is scenario where we can not begin to assure people any element of safety, I ink I have to make a change and would frankly probably collapse at committee [at screens handgun carry permit applications] and take on myself to issue ose permits based on a person s need to protect emselves. SUF. Defendants Prieto and Yolo County likewise maintain a restrictive policy wi respect to e issuance of gun carry permits, rejecting self-defense, wiout more, as a reason to even apply for a permit. Defendant Prieto s written policy regarding e issuance of gun carry permits includes among examples of invalid reasons to request a permit self-protection and protection of family (wiout credible reats of violence). SUF 0. Plaintiffs Experiences Wi Defendants Challenged Policies Plaintiffs Deanna Sykes and Andrew Wiam are law-abiding residents of Sacramento County. SUF,. Plaintiff Adam Richards is a law-abiding resident of Yolo County. SUF. All ree individual plaintiffs are fully qualified under federal and California law to purchase and possess firearms. SUF. Plaintiff Sykes seeks to exercise her Second Amendment right to carry a handgun for personal protection. SUF. Plaintiff Sykes fears victimization, and desires to carry a firearm, but has not been specifically reatened nor has she been previously been victimized by violent crime. SUF. Plaintiff Sykes applied for a handgun carry permit from Defendant McGinness s predecessor in Sacramento County but her request was denied. SUF. Plaintiff Sykes has read e written policy of Defendant McGinness at [t]he mere fear of victimization, or desire to

10 0 0 carry a firearm, shall be insufficient good cause to issue a gun carry permit and us understands at she lacks good cause to obtain a permit as at term is defined and implemented by Defendants McGinness and Sacramento County. SUF. Plaintiff Sykes fears arrest, prosecution, fine and imprisonment if she were to carry a handgun wiout a handgun carry permit. But for e lack of a handgun carry permit and her fear of prosecution, Plaintiff Sykes would carry a handgun in public for self-defense. SUF. On December 0, 00, Plaintiff Andrew Wiam completed e basic course required to obtain a handgun carry permit in Shasta County, as well as e course of training required to obtain a permit to carry an exposed firearm from e California Bureau of Security and Investigative Services. SUF 0. Since en, Wiam has re-qualified four times for e exposed handgun permit, which he currently possesses, along wi a Private Investigator license. SUF. Wiam s Private Investigator license, in conjunction wi his Exposed Firearm Permit, allows him to carry an exposed, loaded handgun in California but only while he is engaged in e course and scope of his work as a private investigator. SUF. In January, 00, e Sheriff of Shasta County, where Wiam lived and worked, issued Wiam a two-year permit to carry a concealed handgun. SUF. On or about July, 00, Wiam relocated from Shasta to e City of Fairfield, in Solano County. As required by law, Wiam notified e Sheriff of Shasta County of is move. SUF. On or about July, 00, Wiam relocated from Solano County to Sacramento County, and again notified e Sheriff of Shasta County of is move. Wiin days, his permit to carry a handgun was revoked. SUF. Wiam contacted Defendant McGinness s office to inquire about e revocation of his permit to carry a handgun, and was advised at a permit would have to be issued by Defendant McGinness. SUF. Wiam was furer advised at application for a permit to carry a handgun could not be made by individuals residing in Sacramento County for less an mons, in e absence of a letter attesting to e applicant s good character from e issuing auority of e applicant s previous gun permit. SUF. As Wiam had no such letter, he was refused an application form for a handgun carry permit. SUF. Wiam was advised at as a matter of policy, e Sheriff of Shasta County does not issue such good character letters. SUF.

11 0 0 Alough Defendant McGinness does not require at handgun carry permit applicants complete e required training prior to making eir applications, Wiam was certified on December, 00, in hours POST PC Firearms Familiarization at e Sacramento Regional Public Safety Training Center, an approved course for issuance of a handgun carry permit in Sacramento County. SUF 0. Plaintiff Wiam seeks to exercise his Second Amendment right to carry a handgun for personal protection. SUF. Plaintiff Wiam fears victimization, and desires to carry a firearm, but has not previously been victimized by violent crime. Alough Wiam was previously reatened, e reats subsided after Wiam left Shasta County. Wiam is unaware of any current, specific reats against him. SUF. Plaintiff Wiam has read Defendant McGinness s written policy at [t]he mere fear of victimization, or desire to carry a firearm, shall be insufficient good cause to issue a gun carry permit and us understands at he lacks good cause to obtain a permit as at term is defined and implemented by Defendants McGinness and Sacramento County. SUF. Plaintiff Wiam fears arrest, prosecution, fines and imprisonment were he to carry a handgun wiout a permit. But for e lack of a handgun carry permit and fear of prosecution, Plaintiff Wiam would carry a handgun in public for self-defense. SUF. In March, 00, Plaintiff Adam Richards contacted Defendant Prieto s office to inquire about e process for obtaining a permit to carry a handgun. Defendant Prieto s office advised Plaintiff Richards at e desire to have a gun available for self-defense would not constitute good cause for e issuance of e permit, and at he should not apply because doing so would be a futile act. SUF. Plaintiff Richards was furer advised at as a matter of policy, his application would also not be considered unless he first applied to e Chief of Police in e City of Davis, where he resides. SUF. Richards subsequently applied to Davis Police Chief Lanny Black for a permit to carry a handgun. On April, 00, Police Chief Black denied Plaintiff Richards application for a permit to carry a handgun, stating at for budgetary reasons his department no longer processes handgun carry permit applications, and suggesting at Richards seek a permit from Prieto. SUF.

12 0 0 Plaintiff Richards seeks to exercise his Second Amendment right to carry a handgun for personal protection. SUF. Plaintiff Richards seeks a handgun carry permit so at he might protect himself and his family. However, Richards has received no reats of violence and is unaware of any specific reat to him or his family. SUF. Richards has read Defendant Prieto s written policy declaring at self-protection and protection of family (wiout credible reats of violence) is among examples of invalid reasons to request a permit, which is perfectly consistent wi his experience in unsuccessfully seeking a handgun carry permit. SUF 0. Richards us understands at he lacks good cause to obtain a permit as at term is defined and implemented by Defendants Prieto and Yolo County. SUF. Richards fears arrest, prosecution, fines and imprisonment were he to carry a handgun wiout a permit. But for e lack of a handgun carry permit and fear of prosecution, Richards would carry a handgun in public for self-defense. SUF. Plaintiff Second Amendment Foundation, Inc. ( SAF ) is a non-profit membership organization incorporated under e laws of Washington wi its principal place of business in Bellevue, Washington. SUF. SAF has over 0,000 members and supporters nationwide, including many in California. SUF. The purposes of SAF include education, research, publishing and legal action focusing on e Constitutional right to privately own and possess firearms, and e consequences of gun control. SUF. Plaintiff The Calguns Foundation, Inc. is a non-profit organization incorporated under e laws of California wi its principal place of business in Redwood City, California. SUF. The purposes of Calguns include supporting e California firearms community by promoting education for all stakeholders about firearm laws, rights and privileges, and securing e civil rights of California gun owners, who are among its members and supporters. SUF. SAF and Calguns expend eir resources encouraging exercise of e right to bear arms, and advising and educating eir members, supporters, and e general public about e varying policies wi respect to e public carrying of handguns in California, including in Sacramento and Yolo Counties. The issues raised by, and consequences of, Defendants policies, are of great interest to SAF and Calguns constituencies. Defendants policies regularly cause e expenditure

13 0 0 of resources by SAF and Calguns as people turn to ese organizations for advice and information. SUF,. Defendants policies bar e members and supporters of SAF and Calguns from obtaining permits to carry handguns. SUF 0. SUMMARY OF ARGUMENT The Second Amendment plainly guarantees Plaintiffs a fundamental, individual right to carry handguns for self-defense. Alough e state may regulate e right to bear arms in e interest of public safety, e fact at such regulations touch upon a fundamental right has long confirmed a distinction between regulation and prohibition. California law expresses a preference at individuals carrying handguns for self-defense do so in a concealed manner, subject to a licensing regime administered by local law enforcement officials. This is a constitutionally permissible legislative choice. Open and concealed carrying of handguns bo satisfy e personal interest in self-defense, but precedent confirms at eier may be preferred by government officials for various reasons. The government may us ban e concealed carrying of functional firearms so long as it allows em to be carried openly, or ban e open carrying of firearms so long as it allows em to be carried concealed. But a blanket prohibition on all handgun carrying for self-defense is unconstitutional. Plaintiffs in is case do not contest California s regulation limiting em to concealed carry. Having been charged wi e task of implementing California s licensing regime for e carrying of handguns, Defendants may not refuse to do so. Salute v. Pitchess, Cal. App. d. (). Nor may Defendants exercise at discretion in a manner at deprives individuals of a fundamental constitutional right. And considering at e interest in self-defense lies at e heart of e right to arms, self-defense cannot be rejected as cause for a gun carry permit. Defendants policies, rejecting e interest in self-defense altogeer, are plainly unconstitutional. Considering at Defendants policies classify individuals arbitrarily in e exercise of a fundamental right, Defendants are also depriving Plaintiffs of e equal protection of e law. Finally, Defendants McGinness and Sacramento County s durational residency requirement for seeking a permit to carry a handgun violates not only e right to bear arms, but e right to travel as well. It, too, must be enjoined.

14 0 0 ARGUMENT I. THE SECOND AMENDMENT PROTECTS THE RIGHT TO CARRY HANDGUNS FOR SELF-DEFENSE. The Second Amendment protects e right to keep and bear arms. U.S. Const. amend. II. This syntax is not unique wiin e Bill of Rights. For example, e Six Amendment guarantees e right to a speedy and public trial, U.S. Const. amend. VI, while e Eigh Amendment secures individuals from cruel and unusual punishment. U.S. Const. amend. VIII. Just as e Six Amendment does not sanction secret, speedy trials or public, slow trials, and e Eigh Amendment does not allow e usual practice of torture, e Second Amendment s reference to keep and bear refers to two distinct concepts. The Supreme Court confirmed as much, rejecting e argument at keep and bear arms was a unitary concept referring only to a right to possess weapons in e context of military duty. To bear arms, as used in e Second Amendment, is to wear, bear, or carry... upon e person or in e cloing or in a pocket, for e purpose... of being armed and ready for offensive or defensive action in a case of conflict wi anoer person. District of Columbia v. Heller, S. Ct., (00) (quoting Muscarello v. United States, U.S., () (Ginsburg, J., dissenting); BLACK S LAW DICTIONARY ( Ed. )); see also Heller, S. Ct. at 0 ( e Second Amendment right, protecting only individuals liberty to keep and carry arms... ), at ( e right to keep and carry arms ) (emphasis added). Having defined e Second Amendment s language as including a right to carry guns for self-defense, e Supreme Court helpfully noted several exceptions at prove e rule. Explaining at is right is not unlimited, in at ere is no right to carry any weapon whatsoever in any manner whatsoever and for whatever purpose, Heller, S. Ct. at (citations omitted), e Court confirmed at ere is a right to carry at least some weapons, in some manner, for some purpose. The Supreme Court en listed as presumptively lawful, Heller, S. Ct. at n., laws forbidding e carrying of firearms in sensitive places, id., at, confirming bo at such presumptions may be overcome in appropriate circumstances, and at carrying bans are not presumptively lawful in non-sensitive places.

15 0 0 In upholding e right to carry a handgun under e Second Amendment, e Heller court broke no new ground. As early as, Georgia s Supreme Court, applying e Second Amendment, quashed an indictment for e carrying of a handgun at failed to allege wheer e handgun was being carried in a constitutionally-protected manner. Nunn v. State, Ga., (); see also In re Brickey, 0 P. 0 (Idaho 0) (Second Amendment right to carry handgun). Numerous state constitutional right to arms provision have likewise been interpreted as securing e right to carry a gun in public, albeit often, to be sure, subject to some regulation. See, e.g. Kellogg v. City of Gary, N.E.d (Ind. 0); State ex rel. City of Princeton v. Buckner, S.E.d (W. Va. ); City of Las Vegas v. Moberg, P.d (N.M. Ct. App. ); State v. Kerner, 0 S.E. (N.C. ); State v. Rosenal, A. 0 (Vt. 0) (striking down ban on concealed carry); Andrews v. State, 0 Tenn. (); see also State v. Delgado, P.d 0 (Or. ) (right to carry a switchblade knife). Plaintiffs us enjoy an individual Second Amendment right to carry a handgun for purposes of self-defense. II. THE SECOND AMENDMENT IS INCORPORATED AS AGAINST DEFENDANTS BY OPERATION OF THE FOURTEENTH AMENDMENT. Alough at e moment ere is no binding Nin Circuit opinion determining e question, post-heller, wheer e Second Amendment is incorporated as against e states by e Fourteen Amendment, e question is not a difficult one. As recognized by e State of California s recent brief before e Supreme Court, e Second Amendment should be incorporated. Br. of Amicus State of California, Supreme Court Nos. 0-, 0- (July, 00). Indeed, as discussed below, Heller all but commands reaching at result. A. The Privileges Or Immunities Clause Incorporates The Second Amendment. The plain text, legislative history, and original public meaning of e Fourteen Amendment s Privileges or Immunities Clause No state shall make or enforce any law which The state s brief speaks of incorporating Heller s core Second Amendment holding at government cannot deny citizens e right to possess handguns in eir homes. Cal. Br. at. Of course, e incorporation analysis cannot parse different portions of e right, which as shown supra, includes e right to bear arms.

16 0 0 shall abridge e privileges or immunities of citizens of e United States, U.S. Const. amend. XIV, sec., cl. make clear at is language incorporates e Bill of Rights as against e states. Unfortunately, at argument is foreclosed in is Court by The Slaughter-House Cases, U.S. ( Wall.) (), holding at e Privileges or Immunities Clause guarantees only rights at flow from e existence of United States citizenship, such as e rights to diplomatic protection abroad or to access e navigable waterways of e United States. Virtually no serious modern scholar left, right, and center inks at [Slaughter- House] is a plausible reading of e Amendment. Akhil Reed Amar, Substance and Meod in e Year 000, Pepp. L. Rev. 0, n. (00). [E]veryone agrees e Court [has] incorrectly interpreted e Privileges or Immunities Clause. Richard Aynes, Constricting e Law of Freedom: Justice Miller, e Fourteen Amendment, and e Slaughter-House Cases, 0 Chi.-Kent L. Rev. (). Legal scholars agree on little beyond e conclusion at e Clause does not mean what e Court said it meant in. Saenz v. Roe, U.S., n. (Thomas, J., dissenting) (citations omitted). Indeed, Justice Thomas, joined by Chief Justice Rehnquist, declared at he would be open to reevaluating [e Privileges or Immunities Clause s] meaning in an appropriate case. Saenz, U.S. at. Plaintiffs submit at is is an appropriate such case. But no settled law need be overturned for Plaintiffs to prevail before is Court, because binding Supreme Court precedent commands incorporation of e Second Amendment under e Due Process Clause. B. The Due Process Clause Incorporates The Second Amendment. It is now well-established at e Due Process Clause has a substantive dimension, and at deprivation of enumerated constitutional rights is us largely incompatible wi due process. Since e adoption of [e Fourteen] Amendment, ten Justices have felt at it protects from infringement by e States e privileges, protections, and safeguards granted by e Bill of Rights.... Unfortunately it has never commanded a Court. Yet, happily, all constitutional questions are always open. Gideon v. Wainright, U.S., - () (Douglas, J., concurring) (citation omitted). 0

17 0 0 Almost every provision of e Bill of Rights considered for incorporation in e modern era has been incorporated. The Second Amendment must be among e incorporated rights. The modern incorporation test asks wheer a right is fundamental to e American scheme of justice, Duncan v. Louisiana, U.S., (), or necessary to an Anglo- American regime of ordered liberty, id. at 0 n.. Duncan s analysis suggests looking to e right s historical acceptance in our nation, its recognition by e states (including any trend regarding state recognition), and e nature of e interest secured by e right. The right to bear arms clearly satisfies all aspects of e selective incorporation standard.. The Right to Arms in Our Legal Tradition. By e time of e founding, e right to have arms had become fundamental for English subjects. Heller, S. Ct. at (citations omitted). When e Constitution was written, English law had settled and determined at a man may keep a gun for e defence of his house and family. Mallock v. Eastly, Eng. Rep. 0,, Mod. Rep. (C.P. ). The violation of at right by George III provoked polemical reactions by Americans invoking eir rights as Englishmen to keep arms. Heller, S. Ct. at. There is no need to recite e exhaustive historical evidence considered in Heller. The matter is now settled precedent and beyond furer dispute: e Second Amendment codified a right inherited from our English ancestors. Heller, S. Ct. at 0 (citation omitted).. The States Treatment of e Right to Arms. All five state constitutional ratifying conventions at demanded a Bill of Rights demanded a right to arms. Forty-four states secure a right to arms in eir constitutions. Of ese, fifteen are eier new or strengened since 0. Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, Tex. Rev. L. & Pol. (00). In Heller, irty-two states advised at e individual Second Amendment right is properly subject to incorporation. Br. of Amici States Texas, et al., Supreme Court No. 0-0, at n.. On July, 00, irty-four states, including California, reiterated is position. Br. of Amici States Texas, et al., Supreme Court Nos. 0-, 0- (irty-ree states); Br. of Amicus State of California, supra.

18 0 0. The Interest Secured by e Right to Arms. The Second Amendment s purpose confirms its incorporation. The inherent right of self-defense has been central to e Second Amendment right. Heller, S. Ct. at. Blackstone described at right as preserving e natural right of resistance and self-preservation, and e right of having and using arms for self-preservation and defence. Heller, S. Ct. at (citations omitted). [T]he right to personal security constitutes a historic liberty interest protected substantively by e Due Process Clause. Youngberg v. Romeo, U.S. 0, () (citation omitted). The Supreme Court binds e states to respect various rights which, like e Second Amendment, are rooted in deference to preserving personal autonomy. Observing at no right is held more sacred, or is more carefully guarded, by e common law, an e right of every individual to e possession and control of his own person, free from all restraint or interference of oers, unless by clear and unquestionable auority of law, Cruzan v. Dir., Mo. Dept. of Heal, U.S., (0) (citation omitted), e Supreme Court recognized a right to refuse life-sustaining medical care. Id. at ; see also Eisenstadt v. Baird, 0 U.S., () ( e right of e individual... to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as e decision wheer to bear or beget a child ); Lawrence v. Texas, U.S., (00) ( liberty of e person bo in its spatial and more transcendent dimensions supports right to consensual intimate relationships); Rochin v. California, U.S. () (bodily integrity right against searches). The Supreme Court instructs at choices central to personal dignity and autonomy, are central to e liberty protected by e Fourteen Amendment. Planned Parenood v. Casey, 0 U.S., (). It is unfaomable at e states are constitutionally limited in eir regulation of medical decisions or intimate relations, because ese matters touch upon personal autonomy, but are unrestrained in eir ability to trample upon e enumerated right to arms designed to enable self-preservation. If abortion is protected because [a]t e heart of liberty is e right to define one s own concept of existence, id., e right of armed self-defense against violent criminal attack is surely deserving of incorporation. Indeed, e right to purchase contraception was discovered as related to e indefeasible right of personal security. Griswold

19 0 0 v. Connecticut, U.S., n.* () (citation omitted). The right to arms plainly possesses greater nexus to e interest in personal security. Casey invoked e second Justice Harlan s celebrated passage describing e liberty protected by e Due Process Clause as broader an a series of isolated points pricked out in terms of e taking of property; e freedom of speech, press, and religion; e right to keep and bear arms; e freedom from unreasonable searches and seizures; and so on. Casey, 0 U.S. at (quoting Poe v. Ullman, U.S., () (Harlan, J., dissenting)) (emphasis added). Liberty cannot now be defined so narrowly as to exclude one of its more obvious attributes. The Second Amendment also has anoer purpose, spelled out in e prefatory clause: preservation of e people s ability to act as militia. Heller, S. Ct. at The Amendment s framers believed is purpose was necessary to e security of a free state. U.S. Const. amend. II. By its own terms, e Second Amendment secures a fundamental right. Unfortunately, two courts have recently refused to consider e question of wheer e Second Amendment is incorporated. National Rifle Ass n v. City of Chicago, F.d ( Cir. 00); Maloney v. Cuomo, F.d (d Cir. 00). Raer, ese courts relied on preincorporation era precedent to hold at e Second Amendment, like e rest of e Bill of Rights, does not bind e states directly. It remains true at e Bill of Rights is not directly applicable to e states. And indeed, e cases relied upon by Maloney and NRA held at e First and Four Amendments do not bind e states, eier. United States v. Cruikshank, U.S., (); Miller v. Texas, U.S., (). Clearly at is not e operative law today. Far from respecting Supreme Court precedent, NRA and Maloney ignore e Supreme Court s unmistakable command at incorporation of enumerated rights be considered under its Due Process Clause doctrine. See, e.g. Duncan, U.S. at (complete non-incorporation a position long since repudiated ). Indeed, e most recent such command was contained in Heller. Remarking on one of its ancient pre-incorporation cases failing to apply e Second Amendment to e states, e Court observed: we note at Cruikshank also said at e First Amendment did not apply against e States and did not engage in e sort of Fourteen Amendment inquiry required by our later

20 0 0 cases. Heller, S. Ct. at n. (emphasis added). When e Supreme Court declares a particular analysis is required, a lower court is not respecting higher auority by foregoing at analysis and resting its decision on e complete state of e law as it existed over a century ago. [W]hen a lower court perceives a pronounced new doctrinal trend in Supreme Court decisions, it is its duty, cautiously to be sure, to follow not to resist it. Perkins v. Endicott Johnson Corp., F.d 0, - (nd Cir. ), aff d, U.S. 0 () (footnotes omitted). There is noing new about Due Process Clause incorporation. Heller s command at a modern due process analysis is required to determine incorporation question, S. Ct. at hardly restrains e ordinary function of e lower federal courts to develop e law prior to its review by e Supreme Court. To e contrary, e history of incorporation is one of e lower courts taking e lead in addressing incorporation questions, just as all matters not wiin e Supreme Court s original jurisdiction are presented to e lower courts as a matter of first impression. For example, e Supreme Court did not incorporate e Six Amendment right to public trial until long after e Third and Seven circuits had done so. See Gannett Co. v. DePasquale, U.S., (); United States ex rel. Latmore v. Sielaff, F.d, n. ( Cir. ), cert. denied, U.S. 0 (); United States ex rel. Bennett v. Rundle, F.d (rd Cir. ) (en banc), cert. denied, 0 U.S. (). Likewise, e Second Circuit incorporated e Fif Amendment s Double Jeopardy Clause prior to e Supreme Court reaching e same conclusion. See United States ex rel. Hetenyi v. Wilkins, F.d (d Cir. ), cert. denied, U.S. (); Benton v. Maryland, U.S. (); see also Price v. Georgia, U.S., - (0) (citing Hetenyi wi approval). The required due process analysis is properly before e Court, and leads only to e conclusion at Defendants actions are restrained by e Second Amendment right to bear arms. III. CALIFORNIA HAS SELECTED CONCEALED CARRYING AS THE PERMISSIBLE MODE OF EXERCISING THE RIGHT TO BEAR ARMS. As discussed supra, Heller confirms at states enjoy meaningful leeway in proscribing e manner in which guns are carried. Traditionally, e right of e people to keep and bear arms

21 0 0 (Article ) is not infringed by laws prohibiting e carrying of concealed weapons.... Robertson v. Baldwin, U.S., - () (emphasis added). But more recently, e Supreme Court has suggested at such bans are only presumptively constitutional. Heller, S. Ct. at n. (emphasis added). Surveying e history of concealed carry prohibitions, it appears time and again at such laws have always been upheld as mere regulations of e manner in which arms are carried wi e understanding at a complete ban on e carrying of handguns is unconstitutional. Heller itself discussed, wi approval, four state supreme court opinions at referenced is conditional rule. See Heller, S. Ct. at (discussing Nunn, supra, Ga. ; Andrews, supra, 0 Tenn. ; and State v. Reid, Ala., - (0)) and S. Ct. at 0 (citing State v. Chandler, La. Ann., 0 (0)). In Reid, upholding a ban on e carrying of concealed weapons, Alabama s high court explained: We do not desire to be understood as maintaining, at in regulating e manner of bearing arms, e auority of e Legislature has no oer limit an its own discretion. A statute which, under e pretence of regulating, amounts to a destruction of e right, or which requires arms to be so borne as to render em wholly useless for e purpose of defense, would be clearly unconstitutional. But a law which is merely intended to promote personal security, and to put down lawless aggression and violence, and to is end prohibits e wearing of certain weapons in such a manner as is calculated to exert an unhappy influence upon e moral feelings of e wearer, by making him less regardful of e personal security of oers, does not come in collision wi e Constitution. Reid, Ala. at -. The Nunn court followed Reid, and quashed an indictment for publicly carrying a pistol for failing to specify how e weapon was carried: so far as e act... seeks to suppress e practice of carrying certain weapons secretly, at it is valid, inasmuch as it does not deprive e citizen of his natural right of selfdefence, or of his constitutional right to keep and bear arms. But at so much of it, as contains a prohibition against bearing arms openly, is in conflict wi e Constitution, and void. Nunn, Ga. at (emphasis original). Andrews presaged Heller by finding at a revolver was a protected arm under e state constitution s Second Amendment analog. It erefore struck down as unconstitutional e application of a ban on e carrying of weapons to a man carrying a revolver, declaring:

22 0 0 If e Legislature ink proper, ey may by a proper law regulate e carrying of is weapon publicly, or abroad, in such a manner as may be deemed most conducive to e public peace, and e protection and safety of e community from lawless violence. We only hold at, as to is weapon, e prohibition is too broad to be sustained. Andrews, Tenn. at -. Finally, in Chandler, e Louisiana Supreme Court held at citizens had a right to carry arms openly: This is e right guaranteed by e Constitution of e United States, and which is calculated to incite men to a manly and noble defence of emselves, if necessary, and of eir country, wiout any tendency to secret advantages and unmanly assassinations. Heller, S. Ct. at 0 (quoting Chandler, La. Ann. at 0). The legal treatises relied upon by e Heller court explained e rule succinctly. For supporting e notion at concealed carrying may be banned, Heller furer cites to THE AMERICAN STUDENTS BLACKSTONE, n. (G. Chase ed. ). Heller, S. Ct. at. Here is what at source provides: [I]t is generally held at statutes prohibiting e carrying of concealed weapons are not in conflict wi ese constitutional provisions, since ey merely forbid e carrying of arms in a particular manner, which is likely to lead to breaches of e peace and provoke to e commission of crime, raer an contribute to public or personal defence. In some States, however, a contrary doctrine is maintained. Exh. C, AMERICAN STUDENTS BLACKSTONE, n. (emphasis original). This understanding survives today. See, e.g. In re Application of McIntyre, A.d 00, 0 n. (Del. Super. ) ( e right to keep and bear arms does not of necessity require at such arms may be kept concealed ). It is important, en, to recall at () e Supreme Court s definition of bear arms as at language is used in e Second Amendment includes e concealed carrying of handguns: wear, bear, or carry... in e cloing or in a pocket... Heller, S. Ct. at (citations omitted) (emphasis added); () e legality of bans on concealed carrying is only presumptive, Heller, S. Ct. at n., and () e cases supporting concealed carry prohibition explain at no abrogation of e right to carry arms is effected because open carrying is still permitted. Andrews appeared to abrogate in large part Aymette v. State, Tenn. (0), upholding e prohibition on e concealed carry of daggers. But even Aymette, which found a state right to bear arms limited by a military purpose, deduced from at interpretation at e right to bear arms protected e open carrying of arms. Aymette, Tenn. at 0-.

23 0 0 Legislatures might well prefer one form of carrying over anoer. Precedent relied upon by Heller reveals an ancient suspicion of weapons concealment where social norms viewed e wearing of arms as virtuous. But today, e open carrying of a handgun may be mistakenly viewed as provocative or alarming by segments of e population unfamiliar wi firearms. See Eugene Volokh, Implementing e Right to Keep and Bear Arms for Self-Defense: An Analytic Framework and a Research Agenda, UCLA L. Rev., (00). California s mode of regulating e carrying of handguns us makes perfect sense. In rural, sparsely populated areas, Sheriffs are allowed to issue permits to carry handguns openly. But in more populous areas, including Sacramento and Yolo Counties, e state deprives Sheriffs of is ability, and specifies at permits to carry must be limited to concealed handguns. This manner of regulation is not unusual, and has been adopted by some jurisdictions where e public acceptance of gun rights is relatively high. For example, in Texas, where concealed handgun permits are readily available on a shall issue basis, Tex. Gov t Code.(a), a permit holder who intentionally fails to conceal e handgun commits a misdemeanor. Tex. Penal Code.0(a). Heller s recognition of a right to carry a handgun does not force states such as California and Texas to allow e carrying of handguns in a manner ey understandably perceive may cause needless public alarm, so long as a more socially-conducive option exists to allow people to exercise e right to bear arms. But Heller confirms at once a choice has been made by e legislature as to which manner of carrying will be permitted, at choice must be honored. Support for is view comes not merely from e plain language of Heller and oer precedent, but also from e California Legislature s Legislative Analyst. In and again in 00, efforts were made to qualify for e California ballot an initiative constitutional amendment securing a right to keep and bear arms. Pursuant to Cal. Elections Code 00, e proposed amendment was submitted for review by e Joint Budget Committee. Each time, e Legislative Analyst concluded at if e state were to adopt a right to keep and bear arms constitutional amendment, existing state law regulating e carrying of guns would not likely be impacted save for limiting discretion in issuing permits:

24 0 0 While individuals may possess and carry firearms, many of e state s existing systems for... weapons permits... would likely not change... However, local jurisdictions would not be able to limit who obtains concealed weapons permits unless e applicant does not meet federal or state criteria. Exh. D, Cal. Joint Budget Committee Analysis, SA 00-RF00, Dec., 00, p. ; Exh. E, Cal. Joint Budget Committee Analysis, SA -RF00, Dec.,, p.. The Legislature did not express e view at adoption of a state right to bear arms would render unconstitutional e general prohibition on open carrying, nor did e Legislature believe at local officials could continue to take a parsimonious approach to e issuance of concealed carry permits. Raer, e view was at which would years later be implicit in Heller: e state can continue to prefer concealed to open carry, and regulate e carrying of concealed handguns, so long as e right to carry is not completely abrogated. This is very limited relief, and it is all at Plaintiffs here request. IV. DEFENDANTS CHALLENGED POLICIES ARE UNCONSTITUTIONAL. Having established at ere is a Second Amendment right to carry guns, and at is right can be regulated along e lines adopted by California, specifying at such carrying is to be concealed and subject to a permit, e question turns to Defendants policies wi respect to what constitutes good cause for e issuance of carry permits. Alough requiring individuals to demonstrate good cause and moral character in order to exercise a constitutional right is in and of itself unconstitutional, Plaintiffs acknowledge is case might be resolved on as applied grounds, because California s concealed carry law is susceptible of application in a constitutional manner (as, indeed, is e practice in many California jurisdictions). The immediate problem may not be e requirements of good cause and moral character, but e unconstitutional ways in which Defendants, specifically, apply ese requirements. Alough e Nin Circuit once held at ere is no liberty interest in obtaining a concealed carry permit, Erdelyi v. O Brien, 0 F.d ( Cir. ), e Second Amendment was not considered in at case. Erdelyi does not mention, let alone discuss, e Second Amendment, and was decided long before e Second Amendment was clarified to protect a fundamental right.