This past week, the U.S. Supreme Court released several new opinions with immense impacts – one of which changes the game for California public safety officers’ right to use firearms for self-defense. In New York State Rifle & Pistol Ass'n, Inc. v. Bruen, the Supreme Court held that the Second and Fourteenth Amendments protect a person’s right to carry a handgun for self-defense outside the home. New York State Rifle & Pistol Association, Inc. v. Bruen (U.S., June 23, 2022, No. 20-843) 2022 WL 2251305. In analyzing self-defense rights, the Court held that circuit courts had been using an improper legal test. Through the Court’s new finding, several cases that support strict firearm regulations have now been overturned. One in particular is a Ninth Circuit case regarding police use of force policies.
Previously, several circuits applied two Supreme Court cases, Heller and McDonald, to justify a two-step test to determine whether a law infringed on Second Amendment rights. At the first step, the court asks whether the law burdens conduct protected by the Second Amendment. To answer, the court considers the history of firearm regulation. Some laws are supported by a long history of lawful regulation, like prohibitions on the possession of firearms by felons. Such laws do not burden conduct protected by the Second Amendment. However, if there is no analogous, historical firearm regulation, the new law burdens conduct protected by the Second Amendment. At the second step, the courts balanced safety with the costs and benefits of firearms restrictions. The courts also gave deference to the legislature’s governmental interests.
The Ninth Circuit used this two-step test to justify their decision in Mahoney, in which Seattle police officers challenged a Use of Force Policy (“UOF Policy”) that applied to the use of firearms. Mahoney v. Sessions, 871 F.3d 873 (9th Cir. 2017). The UOF Policy provided a set of factors to determine whether use of a firearm was reasonable, necessary, and proportional to the threat at issue. However, the UOF Policy also required the police officers to use de-escalation tactics and to consider the firearm factors only when safe under the totality of circumstances. Although the Seattle police officers argued the UOF Policy was unconstitutional under the Second Amendment, the Ninth Circuit disagreed. Even though the Ninth Circuit reasoned that the UOF Policy burdened police officers’ self-defense conduct protected by the Second Amendment, the court found that the safety and benefits of the firearm restrictions outweighed the violation of police officers’ self-defense rights. Therefore, the Ninth Circuit upheld the UOF Policy because it passed at step two, regardless of the fact that it failed at step one.
However, in the recent New York State Rifle & Pistol Ass’n opinion, the Supreme Court found that Heller and McDonald do not support a two-step test. Heller and McDonald only support the first step: whether the law burdens conduct protected by the Second Amendment. Because Mahoney failed at step one (i.e., Seattle’s UOF Policy inhibited police officers’ Second Amendment rights to self-defense), the UOF Policy and every use of force policy that burdens conduct protected by the Second Amendment is unconstitutional. Now, the courts and legislature must only consider whether modern and historical regulations impose a comparable burden on the right of armed self-defense. A cost-benefit analysis of firearms restrictions and deference to government interests are no longer a judicial priority in analyzing violations of the Second Amendment.
The Supreme Court decision eliminates step two because the Second Amendment “‘is the very product of an interest balancing by the people,’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.” New York State Rifle & Pistol Ass'n, Inc. 2022 WL 2251305 at *2 (quoting D.C. v. Heller, 554 U.S. 570, 635 (2008)).
The Court stated, “Today, we
decline to adopt that two-part approach. In keeping with Heller, we hold that
when the Second Amendment's plain text covers an individual's conduct, the
Constitution presumptively protects that conduct. To justify its regulation,
the government may not simply posit that the regulation promotes an important
interest. Rather, the government must demonstrate that the regulation is
consistent with this Nation's historical tradition of firearm regulation. Only
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.’” Id at *8.
David E. Mastagni will be testifying at the Assembly Judiciary Committee on June 28, 2022, against S.B. 505, which almost certainly runs afoul of this holding. S.B. 505 would make a person who owns a firearm strictly civilly liable for each incidence of property damage, bodily injury, or death resulting from the use of their firearm unless the owner of the firearm has reported their firearm to local law enforcement as lost or stolen prior to the damage, injury, or death. Additionally, S.B. 505 would require a person who owns a firearm to obtain and continuously maintain a homeowner's, renter's, auto, or gun liability insurance policy specifically covering losses or damages resulting from any negligent or accidental use of that firearm, including but not limited to, death, injury, or property damage.
Although intended to provide a means of recovery for victims of gun crimes, this bill is likely unconstitutional, only burdens the Constitutional rights of law-abiding citizens, and will have a discriminatory impact. First, the bill imposes strict liability on the exercise of a Constitutional right. As strict liability for the lawful use of firearms has never been permitted, it is not consistent with the historical traditional of firearm regulation. New York State Rifle & Pistol Ass'n, Inc. v. Bruen. Strict liability is not an available policy choice because it infringes on the Second Amendment. Second, strict liability on the use of a firearm necessarily extends strict liability to the lawful and justified use of a firearm in self-defense in violation of the California Constitution. Self-defense "is one of the inalienable rights guaranteed by the constitution of the state." People v. McDonnell (1917) 32 Cal.App. 694; Cal Cont. Art. 1, §1. Just as the state may not burden the exercise of the First Amendment with strict liability, California can't infringe the right of self-defense. "Central to the rights guaranteed by the Second Amendment is "the inherent right of self-defense." United States v. Torres (9th Cir. 2019) 911 F.3d 1253, 1257.
S.B. 505 will have little impact on individuals who commit crimes with firearms and will unlawfully discriminate against those of modest means who will not be able to obtain or afford insurance as a precondition to the exercise of their Constitutional rights. The exercise of a Constitutional right cannot be conditioned upon a financial cost. Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 571. Furthermore, New York State Rifle & Pistol Ass'n, Inc. v. Bruen precludes the imposition of an insurance requirement on the exercise of Second Amendment rights, as such a precondition is not consistent with the historical tradition of firearm regulation.
"The constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees. We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant's right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense." New York State Rifle &
Pistol Ass'n, Inc. v. Bruen at *34.
