California’s laws prohibiting the carrying of loaded and unloaded firearms, openly or concealed, apply equally to residents and non-residents, that’s a fact. California’s licensing laws for carrying concealable firearms (e.g., handguns) prohibit non-residents from obtaining licenses to carry a handgun, openly or concealed, with the exception of 90-day business/employment licenses, and that’s a fact.
The right to keep and bear arms is a right protected by the Second Amendment, and that’s a fact. But when a lawsuit is filed, the opening document filed in the lawsuit, the Complaint, must sufficiently state a “short and plain statement of the claim showing that the pleader is entitled to relief; and a demand for the relief sought, which may include relief in the alternative or different types of relief.” (Rule 8 of the Federal Rules of Civil Procedure).
The Complaint in this case (Hoffman v. Bonta) is certainly short (10 pages including the cover page), but it is seriously deficient for several reasons I will go into.
Tactically speaking, this lawsuit could have and should have been filed before the ink was dry on the United States Supreme Court opinion NYSRPA v. Bruen (June 23, 2022). This lawsuit is filed in the Federal Southern District Court of California. Had it been filed earlier then it would have been assigned to Second Amendment friendly judge Roger Benitez because of the district practice of assigning similar cases to the same judge.
But that changed last year and so the case is now assigned to Federal Judge Cathy Ann Bencivengo who was nominated by President Obama.
Turning to the deficiencies in the Complaint, the Complaint states two clauses of action. The second cause of action alleges that California’s gun bans violate the Full Faith and Credit Clause of the U.S. Constitution.
There are lots of things one can do in other states that one can't do in California. And there are lots of things one can do in California that he can't do in other states. Just because one state prohibits what another permits does not mean that the prohibition violates the Full Faith and Credit Clause of the US Constitution, which the plaintiffs allege in Count 2 of their Complaint.
More to the point, the Second Amendment fully covers the course of conduct alleged in the Complaint. In such cases, the 9th Circuit looks to the Constitutional provision that explicitly covers the conduct (Second Amendment) rather than a Constitutional provision that does not explicitly cover the conduct (i.e., Full Faith and Credit clause).
In support of Count 2, the Plaintiffs cite five court opinions. Three were tax law cases, one prohibited a non-resident lawyer from taking the state bar exam, and the fifth limited new California residents, for the first year they live in the State, to the benefits they would have received in the State of their prior residence.
On a related note, states do not recognize driver’s licenses issued by other states because of the Full Faith and Credit Clause of the Constitution. Neither does that clause prohibit states from placing limitations on those licenses that don’t exist in the state of issuance.
The Complaint does not explicitly state that California’s gun laws violate the right to travel, it only mentions the word travel once.
Perhaps the lawyer is only saying that what is being violated is the “privileges and immunities” of his clients. Given that he is challenging a state law and not a Federal law then Count 2 should have stated a Fourteenth Amendment privileges and immunities claim instead of an Article IV claim. Justice Thomas wrote a lone concurrence in McDonald v. City of Chicago that he would have applied the Second Amendment against the states via the Fourteenth Amendment’s privilege or immunities clause instead of the due process clause. Justice Thomas wrote the majority opinion in NYSRPA v. Bruen. He did not say anything in that regard other than a state law that violates the Second Amendment violates the Fourteenth Amendment.
The First Cause of Action in the Complaint solely alleges that California’s residency requirement for being issued a license to carry a handgun is unconstitutional. That, combined with the Complaint’s Prayer for Relief, limits the scope of this lawsuit. Especially so given that the Prayer for Relief seeks an injunction only against the residency requirement for carrying handguns, notwithstanding the vague prayer for declaratory relief.
Notably, the Plaintiffs did not seek declaratory relief in regard to the licensing statutes. Should they prevail then the injunction applies would apply only to the Plaintiffs in the lawsuit. Had the Plaintiffs sought declaratory relief against the residency requirement then, if granted, it would have applied to those who weren’t plaintiffs. I suspect the reason is mercenary. One of the Plaintiffs is the Firearms Policy Coalition (FPC). A successful outcome for the Plaintiffs would be an incentive for folks to join the FPC.
My California Open Carry lawsuit, Charles Nichols v. Gavin Newsom et al, seeks both injunctive and declaratory relief. Should I prevail in my lawsuit then everyone wins except for those who are prohibited from possessing firearms under state or Federal law.