California's new non-resident concealed carry permits aren't what you might think
California Rifle and Pistol Association, Incorporated v. Los Angeles County Sheriffs Department (2:23-cv-10169)
On August 20th, Federal District Court judge Sherilyn Peace Garnett denied the plaintiffs’ motion for a preliminary injunction with one notable exception: non-resident applications for licenses to carry concealable firearms (CCW) for out-of-state residents. Prior to this, the only CCWs a non-resident could apply for were 90-day business-related licenses. She gave the parties 30 days to file a proposed order. Thirty-four days later, on September 23rd, the parties filed their joint proposed order.
California law provides for resident licenses to carry concealable firearms that are valid for two years. Licenses for the Open Carry of concealable firearms (barrel length up to 16 inches) are only provided for by statutes limiting the applicants to counties with a population of fewer than 200,000 people; as of 2009, these licenses are limited to the county of issuance. When my California Open Carry lawsuit, Charles Nichols v. Gavin Newsom et al., was filed in 2011, there were no applications by which one could apply for a license to carry concealable firearms openly. Three attorney generals later, there are still no applications by which the public, including residents of counties with fewer than 200,00 people, can apply for a license to carry a concealable firearm openly.
I am reliably informed that the attorneys for the plaintiffs did not insist on allowing non-residents to apply for Open Carry licenses. Still, Attorney General Rob Bonta’s attorney nevertheless insisted on excluding Open Carry licenses from the proposed order, which it does. Not that there is any application by which they could have applied for an Open Carry license, even if someone had wanted to apply.
Amusingly, the proposed order did not exclude the only way to circumvent the lack of an application to obtain a license to openly carry a concealable firearm, which is to ask the sheriff or police chief to amend the concealed carry license. Before a license can be issued to carry a concealable firearm, openly or concealed, the California Attorney General must approve the license application. Once approved, additions and modifications to the license are left to the issuing authority, the county sheriff, or the police chief.
In January, AG Bonta published his most recent statewide application for a license to carry a concealble firearm. Although the application does not provide for Open Carry licenses, it does state that the issuing authority in counties with fewer than 200,000 people shall issue Open Carry licenses. Shortly after the United States Supreme Court issued its decision in NYSRPA v. Bruen (2022), AG Bonta sent out a notice to all county sheriffs and police chiefs that licenses for both concealed and Open Carry shall be issued, provided one satisfies all of the other licensing requirements. Accordingly, any sheriff or police chief in a county with fewer than 200,000 people who refuses to amend a concealed carry license to allow for Open Carry as well is in violation of state law.
Another amusing aspect of the proposed order is that it makes no mention of the California Gun Free School Act of 1995, which prohibits the possession of handguns (but not long guns) within 1,000 feet of every K-12 public and private school unless one is exempt from the prohibition. One exemption is for people with a license to carry a concealable firearm. If one has a license to carry a concealable firearm, openly or concealed, he is exempt from the crime of openly carrying an unloaded concealable firearm.
That means that someone who has a statewide concealed carry license can openly carry an unloaded, concealable firearm within 1,000 feet of every K-12 public and private school but not on the grounds of the school, parking area, or street or sidewalk adjacent to any school or building, real property, or parking area under the control of a public or private school. But if one has a CCW, and if he is more than 1,000 feet from any K-12 school and openly carries an unloaded, concealable firearm, then he is in violation of the law prohibiting the Open Carry of unloaded, concealable firearms (e.g., handguns). California law does not provide for licenses for the general public to openly carry long guns, loaded or unloaded.
Notably, the proposed order does not state that non-residents will be issued concealed carry licenses; it only says that they can apply for them and must complete the onerous and expensive application requirements. The order explicitly states that non-resident police officers cannot obtain a license (PC 26170).
I should mention that concealed carry licenses are valid for up to two years, not two years. Even if the AG were to approve the non-resident concealed carry license, there is nothing to prevent the sheriff or police chief from limiting the duration of the license to one second or revoking the license at any time within two years.
I should also mention that county sheriffs and police chiefs can place any “time, manner, and place” restrictions on the CCW. If he wants to limit the validity of the CCW to one’s backyard every other blue moon, he can under California law.
Finally, as of January 1st of this year, a California bill (Senate Bill 2) went into effect, making it virtually impossible to carry or possess any firearm if one has a CCW (including for hunters and target shooters). Some of the newly prohibited places were preliminary enjoined, but a hostile to the Second Amendment three-judge panel of the 9th Circuit Court of Appeals vacated most of the preliminary injunction. Having a CCW means it is virtually impossible for the CCW holder to even possess, let alone carry, a loaded or unloaded firearm, even if that firearm is unloaded and in a fully enclosed locked container.
Out of state residents will presumably be staying at a motel or with a relative. If that motel or residence is located within 1,000 feet of a K-12 public or private school, well, S.B. 2 amended California Penal Code section 626.9 and eliminated the exemption for transporting an unloaded handgun in a fully enclosed locked container unless the handgun is in the motor vehicle at all times. Long ago, California courts invalidated the private property exemption from the California Gun-Free School Zone Act of 1995. If the public has access to the property, including private residential property, then that property is a “public place,” and the mere possession of firearms is a crime. Unless one leaves his unloaded handgun in a fully enclosed locked container (a locked container does not include your glove box or console) in the motor vehicle, it is a crime to transport that handgun from his vehicle to one’s motel or relative’s home (or even one’s home or other property if one owns the property). If you have a CCW, then you must carry your concealed handgun loaded from your vehicle to your place of sojourn (I never said California laws make sense).
“Residents of states and US territories besides California, who are: a. members of the California Rifle & Pistol Association, Incorporated, Gun Owners of America, Inc., Gun Owners of California, Inc., or The Second Amendment Foundation, and; b. who are not otherwise prohibited from possessing firearms under federal or California law, upon proof of such membership are entitled under this Order to apply for a California concealed handgun license as provided for under Penal Code sections 26150 through 26235, except that such applicants shall not be eligible for the licenses described in sections 26150(b)(2), 26155(b)(2) [Open Carry license}, and 26170 [police officers].”
As of this writing on Tuesday, September 24th, the judge has not approved the proposed order. I’ve scheduled this article for publication on Friday; it should have been approved or denied by then. You can check on the status of the order at this link.
By the way, the handgun and magazines must be legal under California law. So, no magazines that can hold more than ten rounds and no handguns that aren’t approved by the State of California.