Filed 11/20/23
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C097326
Plaintiff and Appellant, (Super. Ct. No. 21FE016941)
v.
JAIME MOSQUEDA et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Sacramento County, Bunmi O.
Awoniyi, Judge. Reversed with directions.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri, Tia M.
Coronado, Deputy Attorney General, for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of part II of the Discussion.
1
In New York State Rifle & Pistol Assn. v. Bruen (2022) 597 U.S. __ [142 S.Ct.
2111, 213 L.Ed.2d 387] (Bruen), the United States Supreme Court declared that the
Second and Fourteenth Amendments to the federal constitution protect an individual’s
right to carry a handgun outside the home for self-defense. (Id. at p. 2122.)
The high court also held that the Second Amendment right is “subject to certain
reasonable, well-defined restrictions.” (Bruen, supra, 142 S.Ct. at p. 2156.) The court
clarified a test it had earlier applied in District of Columbia v. Heller (2008) 554 U.S. 570
(Heller) for determining whether a government regulation violates that right. The court
held that “when the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct.” (Bruen, at p. 2126.) Accordingly, to
justify a firearms regulation, the government “must demonstrate that the regulation is
consistent with this Nation’s historical tradition of firearm regulation.” (Ibid.) A court
may declare that an individual’s conduct falls outside the Second Amendment’s
“ ‘unqualified command’ ” only if the regulation is consistent with the nation’s historical
tradition. (Ibid.)
Applying that test, the Bruen court held that an element of New York’s handgun
licensing regime violated the Second Amendment right to carry a handgun in public for
self-defense. The regime conditioned issuance of a license to carry a concealed firearm
on a discretionary finding of an individual’s showing of “proper cause,” which New York
courts had defined as a special need for self-defense. (Bruen, supra, 142 S.Ct. at
pp. 2122-2123.) The Supreme Court concluded that New York did not establish a
historical tradition of American governments requiring law abiding citizens to
demonstrate a special need for self-defense different from the general community in order
to carry arms in public. (Id. at p. 2156.)
California’s handgun licensing regime is similar to New York’s. (Bruen, supra,
142 S.Ct. at pp. 2123-2124.) Carrying a concealed handgun in public, whether loaded or
unloaded, is generally prohibited unless the individual obtains a license. (Peruta v.
2
County of San Diego (9th Cir. 2016) 824 F.3d 919, 925, abrogated in part by Bruen, at
p. 2122.) The county sheriff or chief of police “may issue” a license to carry a concealed
handgun upon proof that “good cause” exists for issuing the license. (Pen. Code,
§§ 26150, subd. (a)(2); 26155, subd. (a)(2) [subsequent undesignated references to
statutes are to the Penal Code; because the licensing requirements in sections 26150 and
26155 are identical, our references to section 26150 include by this reference the relevant
provisions in section 26155].) The applicant must be fingerprinted and pass a
background check and must also prove that he or she is of “good moral character,”
resides or works in the issuing county or city, and has completed a firearm safety course.
(§§ 26150, subd. (a)(1), (3)-(4); 26155, subd. (a)(1), (3)(4); 26185, subd. (a); 26195,
subd. (a).) The People agree that Bruen invalidated the “good cause” requirement in
California’s licensing scheme.
Relying on Bruen, individuals charged in California with unlawfully possessing a
handgun have contended that their charges and resulting convictions are unconstitutional.
They have argued, unsuccessfully, that Bruen rendered California’s entire licensing
scheme facially unconstitutional, and as a result, it was unconstitutional to punish
nonfelons such as them for carrying a firearm in public solely because they did not have a
license. (See In re T.F.-G. (2023) 94 Cal.App.5th 893; People v. Miller (2023)
94 Cal.App.5th 935 (Miller); In re D.L. (2023) 93 Cal.App.5th 144.)
Defendants and respondents Jaime Mosqueda and Juanita Mosqueda successfully
raised the same contention against their unlawful possession charges by demurrer in the
trial court. We agree with our judicial peers that defendants had standing to raise the
defense by demurrer, but also that Bruen did not render California’s entire licensing
scheme or the charges against them unconstitutional. The offending “good cause”
requirement is severable from the remainder of the licensing statute, as is the “good
moral character” element which we assume only for purposes of argument to violate the
test laid down in Bruen. Bruen is also not grounds for a facial attack on the discretionary
3
nature of California’s licensing scheme, and it did not invalidate any of the other
licensing provisions in section 26150. We reverse the trial court’s judgment of dismissal,
which concluded otherwise.
BACKGROUND AND HISTORY OF THE PROCEEDINGS
We derive the facts of the arrest from the People’s opposition to defendants’
demurrers. After executing a search warrant at a residence, detectives observed
defendant Juanita Mosqueda drive up to the residence, exit her car, and walk into the
residence’s side yard. Defendant Jaime Mosqueda also drove up to the residence.
Juanita exited the side yard with a black bag. She gave the bag to Jaime, who then drove
away. Detectives stopped Jaime’s car, and they retrieved the bag from the passenger
floorboard. They found a loaded handgun inside the bag. The handgun was not
registered to either defendant.
The People charged each defendant with unlawfully carrying a concealed firearm,
carrying a loaded firearm on one’s person or in a vehicle, and other charges not relevant
here. (§§ 25400, subd. (a)(2); 25850, subd. (a).) Defendants pleaded not guilty, but prior
to the preliminary hearing they filed demurrers pursuant to section 1004, subdivision 4,
on the ground the facts did not constitute a public offense. They contended section
26150’s licensure requirements to show “good cause” and “good moral character” were
unconstitutional under Bruen. And because those licensing requirements were invalid,
the entire licensing scheme was invalid, and defendants could not be prosecuted for
carrying a concealed handgun without a license.
Defendants asserted they had standing to contest the state licensing scheme by
demurrer whether or not they applied for a license. They faced an injury capable of being
redressed: imprisonment based on an unconstitutional statute. And First Amendment
jurisprudence which granted standing to persons affected by unconstitutional licensing
4
laws whether or not they applied for a license logically applied to similar claims under
the Second Amendment.
The trial court sustained the demurrers and dismissed the action. It ruled that
Bruen wholly invalidated California’s licensing scheme. And because Bruen declared the
public carrying of firearms to be “presumptively legal,” defendants could not be
prosecuted under statutes criminalizing public carry without a license.
The trial court also held that defendants had standing to challenge the licensing
scheme whether or not they applied for a license. The court relied on First Amendment
standing law and found it applicable to rights protected under the Second Amendment.
The People appeal from the judgment of dismissal. They contend the trial court
erred in finding that defendants had standing because defendants had not applied for and
been denied a concealed carry license. The People assert the First Amendment standing
cases relied on by the trial court do not apply.
The People also contend the trial court erred in holding that Bruen wholly
invalidated California’s concealed carry licensing scheme. They argue that Bruen
invalidated only the “good cause” requirement. That requirement is severable from the
rest of the licensing scheme which remains constitutional. The People claim that the trial
court’s interpretation of Bruen was overly broad.
Defendants did not file a respondent’s brief.
DISCUSSION
I
Standard of Review
A demurrer challenges defects appearing on the face of the pleading and raises
only issues of law. (People v. Biane (2013) 58 Cal.4th 381, 388.) We review the trial
court’s order de novo. (People v. Perlas (2020) 47 Cal.App.5th 826, 832.)
5
Although defendants did not file a respondent’s brief, we may decide the appeal
on the record, the opening brief, and any oral arguments. (Cal. Rules of Court, rule
8.360(c)(5)(B).) As the appealing party, the People bear the affirmative burden to show
error. (In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106, 110, fn. 1.)
II
Standing
The People claim defendants lacked standing to challenge the constitutionality of
the concealed carry licensing scheme by demurer because they did not suffer a
constitutional injury. Specifically, defendants did not argue that they had applied for
concealed handgun licenses and been denied. And even assuming Bruen invalidated the
good cause requirement for a license, the People argue that defendants did not show they
would have satisfied the remaining valid conditions for obtaining a license had they
applied.
We assume, as the California Supreme Court does, that a criminal defendant may
challenge the validity of the statute under which he or she is being prosecuted by
demurrer. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1091, fn. 10; § 1004, subd.
4.) As part of that demurrer, the defendant may raise a facial challenge against the
statute’s constitutionality. (See id. at pp. 1091-1092 [defendants charged with violating
camping ban ordinance could challenge ordinance’s facial constitutionality by
demurrer].) The defendant may not, however, raise an as-applied challenge on demurrer.
(Id. at p. 1085.)
Before the trial court, defendants contended they had standing because the state
was “seek[ing] to impose penal sanctions on a person when one of the required elements
that the state must prove is unconstitutional. . . . [T]he Defendant has an injury—arrest—
connected to the unconstitutional licensing scheme that can be redressed in our courts.”
6
Their statement notwithstanding, defendants did not contend that any of the
elements of the crimes they are charged with committing under sections 25400 and 25850
are unconstitutional. Rather, they contended the licensing statute under which they could
have obtained a defense against their prosecutions is wholly unconstitutional under
Bruen, and that even though they did not attempt to obtain a license and gain that
defense, the unconstitutionality of the licensing statute renders the criminal enforcement
of weapons possession laws unconstitutional. They have standing because they are in
jeopardy of losing their liberty based on the unconstitutional licensing scheme.
Almost a century ago, the United States Supreme Court held that the standing
requirement of obtaining a license before challenging the constitutionality of a licensing
scheme does not apply when an individual is being criminally prosecuted under a facially
unconstitutional statute. (Smith v. Cahoon (1931) 283 U.S. 553, 562 (Smith).)
In Smith, the defendant was prosecuted under Florida law for operating as a
private carrier under a contract with a business without having obtained the required
license. (Smith, supra, 283 U.S. at pp. 556, 561.) At the preliminary hearing, the
defendant contended the statute as applied to him violated the due process and equal
protection clauses of the Fourteenth Amendment, but he was held over for trial. (Id. at
p. 556.) The Supreme Court stated that, in general, when a statute valid upon its face
requires a license as a precondition to carrying on a business, “one who is within the
terms of the statute, but has failed to make the required application, is not at liberty to
complain because of his anticipation of improper or invalid action in administration.”
(Id. at p. 562.) However, that rule does not apply “where a statute is invalid upon its face
and an attempt is made to enforce its penalties in violation of constitutional right. In the
present instance, the appellant has been arrested and held for trial. He is in jeopardy, and
the state court, entertaining his application for discharge, has denied the constitutional
right asserted. The question of the validity of the statute, upon which the prosecution is
based, is necessarily presented.” (Ibid.)
7
The Supreme Court has consistently followed the rule it announced in Smith in
cases challenging the constitutionality of other licensing schemes where enforcing the
scheme violated the unlicensed defendant’s First Amendment rights. (See Shuttlesworth
v. City of Birmingham (1969) 394 U.S. 147, 151 [participating in parade without required
permit].) The court explained the rule thusly: “ ‘It is settled by a long line of recent
decisions of this Court that an ordinance which, like this one, makes the peaceful
enjoyment of freedoms which the Constitution guarantees contingent upon the
uncontrolled will of an official—as by requiring a permit or license which may be
granted or withheld in the discretion of such official—is an unconstitutional censorship or
prior restraint upon the enjoyment of those freedoms.’ (Staub v. [City of Baxley (1958)]
355 U.S. 313, 322.) And our decisions have made clear that a person faced with such an
unconstitutional licensing law may ignore it and engage with impunity in the exercise of
the right of free expression for which the law purports to require a license. ‘The
Constitution can hardly be thought to deny to one subjected to the restraints of such an
ordinance the right to attack its constitutionality, because he has not yielded to its
demands.’ (Jones v. Opelika [(1942)] 316 U.S. 584, 602 (Stone, C.J., dissenting),
adopted per curiam on rehearing, [(1943)] 319 U.S. 103, 104.)” (Shuttlesworth, at p. 151,
fn. omitted.)
California courts have similarly held that a criminal defendant has standing to
challenge the facial constitutionality of the licensing statute under which he or she is
being prosecuted as violative of the First Amendment without having first sought a
license. (See Dillon v. Municipal Court (1971) 4 Cal.3d 860, 866, fn. 6 [parade without
permit]; Burton v. Municipal Court (1968) 68 Cal.2d 684, 688 [operation of movie
theater without a permit].)
Recently, in In re D.L., supra, 93 Cal.App.5th 144, the Court of Appeal held that
standing existed in a case similar to ours. In that case, the juvenile court found true,
among other allegations, an allegation that the juvenile unlawfully possessed a loaded
8
firearm in violation of section 25850, subdivision (a). (Id. at p. 149.) On appeal, and
after Bruen had been announced, the juvenile contended his adjudication had to be
reversed because section 25850 incorporated the unconstitutional “good cause” licensing
requirement. (Id. at pp. 161-162.) Like here, the People contended the juvenile lacked
standing to raise the contention because he had never applied for a concealed carry
license, and the exception to the standing rule was limited to the unique context of the
First Amendment. (Id. at pp. 156, 160.)
The Court of Appeal concluded the juvenile had standing. He had standing
“because he is challenging the facial constitutionality of a criminal statute under which
he has been convicted.” (In re D.L., supra, 93 Cal.App.5th at p. 156.) The court relied
on Smith and the First Amendment cases’ holdings that a criminal defendant need not
apply for a permit under a law that facially violated the person’s First Amendment rights
before challenging the law’s facial constitutionality. (Id. at pp. 158-160.) It also
concluded that due to the Supreme Court’s application of the rule in a non-First
Amendment context in Smith, it could not conclude the rule was strictly limited to First
Amendment licensing cases. (Id. at p. 160.) Dicta in Bruen and Heller favorably
comparing the Second Amendment to the First Amendment suggested the court should
take a more cautious view of the People’s argument on the issue of standing. (Ibid.)
In In re T.F.-G., supra, 94 Cal.Ap.5th 893, the Court of Appeal relied on In re
D.L. to find standing. A juvenile was charged with violating section 25850 and was
found to be a ward of the court. (Id. at p. 902.) The People contended the juvenile did
not have standing to challenge the statute’s constitutionality because he had not applied
for a license. (Id. at p. 912.) The Court of Appeal disagreed. Citing to In re D.L., the
court stated the juvenile was “challenging his wardship adjudication under a penal
statute—an enforcement mechanism of the regulatory regime that he contends is
unconstitutional.” (Id. at p. 913.)
9
In Miller, supra, 94 Cal.App.5th 935, another case similar to ours, a panel of this
court recognized that the exception to the standing rule requiring the defendant first to
seek a license had been applied mostly in First Amendment cases, and it also recognized
the holdings in In re D.L. and Smith. (Miller, at p. 942.) However, because the court
would conclude that the Second Amendment allows a state to prohibit concealed carry
whether or not the state has a licensing regime, it assumed without deciding that the
defendant had standing to raise her constitutional claim on demurrer, and it denied her
claim on the merits. (Ibid.)
We agree with our sister courts that defendants have standing in this instance to
raise a facial constitutional challenge by demurrer against sections 25400 and 25850.
They are being criminally prosecuted under statutes they claim are rendered
unconstitutional on their face due to Bruen’s invalidation of the licensing statute, section
26150. Sections 25400 and 25850 are the “enforcement mechanism[s] of the regulatory
regime” they contend is unconstitutional and under which they now risk the loss of their
liberty. (In re T.F.-G, supra, 94 Cal.App.5th at p. 913.) They thus have a concrete and
actual beneficial interest in a justiciable controversy.
We recognize that almost all the cases allowing the facial challenge to proceed
despite the party not having sought a permit arise in the context of the First Amendment.
But in Heller and Bruen, the Supreme Court indicated that Second Amendment rights are
entitled to an equal amount of protection. Reviewing historical sources to discern the
meaning of the Second Amendment, the Heller court cited favorably to a 19th Century
source, stating: “ ‘[G]overnment is forbidden by any law or proceeding to invade or
destroy the right to keep and bear arms . . . . The clause is analogous to the one securing
the freedom of speech and of the press.’ ” (Heller, supra, 554 U.S. at p. 618, quoting J.
Pomeroy, An Introduction to the Constitutional Law of the United States § 239, pp. 152–
153 (1868).)
10
Later in its opinion, the Heller court stated, “The First Amendment contains the
freedom-of-speech guarantee that the people ratified, which included exceptions for
obscenity, libel, and disclosure of state secrets, but not for the expression of extremely
unpopular and wrong headed views. The Second Amendment is no different. Like the
First, it is the very product of an interest balancing by the people . . . . And whatever else
it leaves to future evaluation, it surely elevates above all other interests the right of law-
abiding, responsible citizens to use arms in defense of hearth and home.” (Heller, supra,
554 U.S. at p. 635.)
The Bruen court explained that the historical tradition test it was applying to
determine the scope of the Second Amendment was consistent with the test the court
applied to restrictions on rights protected by the First Amendment. The court stated,
“This Second Amendment standard accords with how we protect other constitutional
rights. Take, for instance, the freedom of speech in the First Amendment, to which
Heller repeatedly compared the right to keep and bear arms. [(Heller, supra, 554 U.S. at
pp. 582, 595, 606, 618, 634-635.)] In that context, ‘[w]hen the Government restricts
speech, the Government bears the burden of proving the constitutionality of its actions.’
[(United States v. Playboy Entertainment Group, Inc. (2000) 529 U.S. 803, 816; see also
Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S. 767, 777.)] In some cases, that
burden includes showing whether the expressive conduct falls outside of the category of
protected speech. [(See Illinois ex rel. Madigan v. Telemarketing Associates, Inc. (2003)
538 U.S. 600, 620, fn. 9.)] And to carry that burden, the government must generally
point to historical evidence about the reach of the First Amendment’s protections. [(See,
e.g., United States v. Stevens (2010) 559 U.S. 460, 468-471 [placing the burden on the
government to show that a type of speech belongs to a ‘historic and traditional
categor[y]’ of constitutionally unprotected speech ‘long familiar to the bar’] (internal
quotation marks omitted)).)]” (Bruen, supra, 142 S.Ct. at p. 2130.)
11
Bruen concluded its historical analysis of New York’s proper cause provision by
aligning the Second Amendment with the First: “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.’ [Citation.] 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.” (Bruen, supra, 142 S.Ct. at p. 2156.)
We infer from the linkages the Supreme Court has drawn between the First and
Second Amendments that extending First Amendment standing law to rights under the
Second Amendment is not inconsistent with the Supreme Court’s standing jurisprudence.
Criminal prosecutions under laws that facially violate the Second Amendment offend a
right the Supreme Court has declared is not a second-class right; it is a right that is above
all other interests opposing it. With such a right at risk, a defendant in jeopardy of losing
his or her liberty in violation of that right has standing to challenge the offending law
facially without first applying for a required license.
The principal case relied on by the People in opposition, United States v. Decastro
(2d Cir. 2012) 682 F.3d 160, does not convince us otherwise. In Decastro, the defendant
was indicted for transporting firearms into his home state of New York which he had
acquired outside that state, a violation of federal law. (Decastro, supra, 682 F.3d at
pp. 161-162.) He moved to dismiss the indictment on the ground the federal statute
facially violated his Second Amendment right to keep and bear arms under Heller, and
that New York City’s restrictive licensing requirements were tantamount to a ban. (Id. at
p. 162.) The district court denied the motion and later found him guilty. (Id. at p. 163.)
On appeal, the defendant contended the federal statute was facially unconstitutional under
12
the Second Amendment, and, when combined with New York City’s licensing scheme, it
was unconstitutional as applied to him because it made it practically impossible for him
to secure a handgun for self-defense. (Ibid.)
Addressing the as-applied argument first, the court of appeal believed the premise
of that argument was that New York’s licensing scheme was itself unconstitutional.
However, because the defendant had not applied for a license, he lacked standing to
challenge the state’s licensing laws. The court stated, “ ‘As a general matter, to establish
standing to challenge an allegedly unconstitutional policy, a plaintiff must submit to the
challenged policy’ ” except when applying for a license would have been a futile gesture.
(Decastro, supra, 682 F.3d at p. 164.)
Unlike in the case before us, the Decastro defendant was bringing an as-applied
challenge. Moreover, New York’s licensing laws were not the enforcement mechanism
for or had any relation to the federal regime under which he was being charged. As the
court in In re D.L. stated, Decastro is distinguishable because the defendant there “could
not have avoided the charge (transportation of firearms into New York from another
state) by simply obtaining a license for possession.” (In re D.L., supra, 93 Cal.App.5th at
p. 161.)
Furthermore, the Decastro court then addressed the defendant’s facial challenge to
the federal statute on the merits and held the statute did not violate the Second
Amendment. (Id., supra, 684 F.3d at pp. 168-169.) Our conclusion that defendants have
standing to raise their facial challenge to the licensing scheme is not contrary to
Decastro.
Similarly, we find the People’s reliance on the trial court decision of People v.
Rodriguez (2022) 76 Misc.3d 494 [171 N.Y.S.3d 802] unpersuasive. That court relied on
Decastro to hold that the criminal defendant before it lacked standing to challenge the
state’s handgun licensing regime when he had not first applied for a license. (Id. at
pp. 496-497.)
13
III
Constitutionality and Severability
State law generally prohibits carrying a handgun in public, whether the gun is
concealed or carried openly, and whether the gun is loaded or unloaded. (§§ 25400,
subd. (a) [concealed firearm in vehicle or on person]; 25850, subd. (a) [loaded firearm in
public]; 26350, subd. (a) [unloaded and exposed handgun in public].) There are
numerous statutory exceptions to these prohibitions, but if a law-abiding California
citizen does not qualify for one of the exceptions, generally the citizen’s only means for
lawfully carrying a handgun in public for self-defense is to obtain a license to carry a
concealed handgun under section 26150. 1 The restrictions imposed by sections 25400
and 25850 against carrying a concealed or loaded firearm in public do not apply to a
person licensed to carry a concealed handgun. (§§ 25655, 26010.)
Before the trial court, defendants contended that Bruen rendered California’s
licensing scheme unconstitutional in at least two respects. First, they argued that Bruen
rendered section 26150, the licensing statute, unconstitutional. Bruen declared
unconstitutional the elements of “good cause” and, they asserted, “good moral character,”
two of the licensing requirements under section 26150 for obtaining a concealed carry
license. Further, they argued that because section 26150 is unconstitutional, a person
may not be prosecuted for violating it. The fact that the licensing statutes are phrased as
defenses to the general prohibition did not matter because the general prohibition was
unconstitutional.
1 We recognize that a citizen may be licensed to openly carry a loaded handgun if,
among other criteria, the citizen resides in a county that has a population of less than
200,000, but Sacramento County, the county where defendants committed their crimes,
does not qualify. (§ 26150, subd. (b)(2).)
14
Second, defendants contended that section 26150’s failure to define “good cause”
and “good moral character” rendered the statute unconstitutional under Bruen as an
unlawful prior restraint of Second Amendment rights because it gave licensing authorities
near unbridled discretion to create whatever definition they pleased. This was
particularly true because section 26150 states the licensing authority “may issue” a
license. Defendants asserted that a permissible prior restraint under the Second
Amendment must not grant a government agency discretion to grant or withhold a
license.
Our colleagues in Miller, supra, 94 Cal.App.5th 935, recognized that defendants’
arguments at least as to section 25400 were based on the flawed premise that section
25400’s ban of concealed firearms was unconstitutional if it was not accompanied by a
valid licensing scheme. (Id. at p. 943.) The nation has a long, historical tradition of
banning concealed carry, and such bans were lawful so long as citizens were allowed to
carry firearms openly. (Id. at p. 944; Bruen, supra, 142 S.Ct. at pp. 2146-2147, 2150.)
Bruen did not address a licensing scheme’s impact on potential criminal charges for
carrying a firearm without a license. (Miller, at p. 945.) Rather, Bruen recognized that
historically, if a state banned both open and concealed carry, it was the open carry
prohibition that conflicted with the constitution and was void. (Miller, at p. 946; Bruen,
at p. 2147; see Nunn v. State (1846) 1 Ga. 243, 251.)
This point was dispositive in Miller: “Whatever constitutional defects may
currently exist elsewhere in California’s multifaceted statutory scheme regulating
firearms, section 25400 is not itself unconstitutional because of them. To the contrary,
[the defendant’s] arguments that California’s licensing scheme is invalid, if meritorious,
would suggest other statutes such as the open carry prohibitions in sections 25850 and
26350 are unconstitutional, but the concealed carry prohibitions in section 25400 would
remain valid post-Bruen because California would effectively no longer ban open carry.”
(Miller, supra, 94 Cal.App.5th at p. 946.)
15
We prefer to address the constitutionality of the licensing regime rather than
suggest the state’s open carry laws might be unconstitutional. Although the People have
argued that historically, states were allowed to regulate public carry so long as they did
not bar public carry altogether, they have not conceded that prosecuting defendants under
section 25400 might have to be conditioned on striking the state’s open carry ban found
in section 25850, which defendants were charged with violating (although their handgun
was found inside a bag in a car). We presume the Legislature would prefer to preserve if
possible the concealed carry regime without putting the open carry ban at more
constitutional risk than it might already be facing. 2 We thus turn our attention to section
26150, the concealed carry licensing statute, to determine if its good cause and good
moral character provisions and the discretion it vests in licensing authorities facially
survive Bruen and whether any unconstitutional provisions can be severed.
A. Bruen
Bruen arose in New York where the petitioners, law-abiding citizens,
unsuccessfully applied for licenses to carry handguns in public for self-defense. New
York law prohibited possessing any firearm inside or outside the home without a license.
To obtain an unrestricted license to carry a firearm outside the home, the applicant had to
prove that “proper cause” existed to issue it. (Bruen, supra, 142 S.Ct. at pp. 2122-2125.)
New York courts defined proper cause as a special need for self-protection
distinguishable from the general community. (Id. at p. 2123.) The petitioners were
unable to make that showing.
2 See Baird v. Bonta (9th Cir. Sept. 7, 2023) 81 F.4th 1036. Plaintiffs in that action,
residents of counties with less than 200,000 population, sought licenses to open carry.
The court of appeals reversed the district court’s denial of plaintiffs’ motion for a
preliminary injunction and directed the district court to consider whether plaintiffs were
likely to succeed on the merits.
16
The Supreme Court first explained the test for determining whether a firearms
regulation offends the Second Amendment. The Second Amendment presumptively
protects conduct the Amendment’s plain text covers. (Bruen, supra, 142 S.Ct. at
p. 2126.) To justify a firearms regulation, 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.’ ” (Ibid.)
To make that determination, courts will have to reason by analogy and determine
whether a historical regulation and a modern regulation are “ ‘relevantly similar.’ ”
(Bruen, supra, 142 S.Ct. at p. 2132.) Relevant similarity will depend on “at least two
metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-
defense . . . [as] ‘individual self-defense is “the central component” of the Second
Amendment right.’ ” (Id. at pp. 2132-2133; italics omitted.)
“To be clear, analogical reasoning under the Second Amendment is neither a
regulatory straightjacket nor a regulatory blank check. On the one hand, courts should
not ‘uphold every modern law that remotely resembles a historical analogue,’ because
doing so ‘risk[s] endorsing outliers that our ancestors would never have accepted.’
[Citation.] On the other hand, analogical reasoning requires only that the government
identify a well-established and representative historical analogue, not a historical twin.
So even if a modern-day regulation is not a dead ringer for historical precursors, it still
may be analogous enough to pass constitutional muster.” (Bruen, supra, 142 S.Ct. at
p. 2133.)
Applying this test, the Supreme Court held New York’s “proper cause”
requirement to be unconstitutional. After finding that the Second Amendment guaranteed
a general right to public carry, and after performing an extensive historical analysis, the
court stated: “[W]e conclude that respondents [New York] have not met their burden to
17
identify an American tradition justifying the State’s proper-cause requirement. The
Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used arms
in public subject to certain reasonable, well-defined restrictions. [(Heller, 554 U.S. at
p. 581.)] Those restrictions, for example, limited the intent for which one could carry
arms, the manner by which one carried arms, or the exceptional circumstances under
which one could not carry arms, such as before justices of the peace and other
government officials. Apart from a few late-19th-century outlier jurisdictions, American
governments simply have not broadly prohibited the public carry of commonly used
firearms for personal defense. Nor, subject to a few late-in-time outliers, have American
governments required law-abiding, responsible citizens to ‘demonstrate a special need for
self-protection distinguishable from that of the general community’ in order to carry arms
in public.” (Bruen, supra, 142 S.Ct. at p. 2156.)
B. “Good cause” provision
The Bruen court made clear that California’s similar “good cause” requirement in section
26150 was unconstitutional. (Bruen, supra, 142 S.Ct. at p. 2124 & fn. 2.) On June 24,
2022, the day after Bruen was released, the California Attorney General issued a legal
alert recognizing that the good cause requirement in sections 26150 and 26155 was no
longer constitutional. (Legal Alert OAG-2022-02 (ca.gov) (https://perma.cc/F2MJ-
SXZ2) [accessed Nov. 13, 2023].) The alert instructed local officials not to require proof
of good cause for issuing a public-carry license effective immediately. (Ibid.) Officials
were directed to continue to apply the other licensing requirements, including proof of
“good moral character.” (Ibid.)
Because the good cause requirement of section 26150 is unconstitutional, we must
determine whether that requirement can constitutionally be severed from the remainder of
the statute. In the absence of express language confirming or prohibiting severability,
such as the case here, an unconstitutional statute remains effective to the extent its invalid
18
portions can be severed from any valid portions. (Hotel Employees and Restaurant
Employees Intern. Union v. Davis (1999) 21 Cal.4th 585, 613.) An invalid portion can be
severed “if, and only if, it is ‘grammatically, functionally and volitionally separable.’ ”
(Ibid.; California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 270-271.)
Grammatical separability “depends on whether the invalid parts ‘can be removed
as a whole without affecting the wording’ or coherence of what remains.” (Matosantos,
supra, 53 Cal.4th at p. 271.) Functional separability “depends on whether ‘the remainder
of the statute “ ‘is complete in itself . . . .’ ” ’ ” (Ibid.) Volitional separability “depends
on whether the remainder ‘ “would have been adopted by the legislative body had the
latter foreseen the partial invalidation of the statute.” ’ ” (Ibid.)
Defendants contended at the trial court that the offending portions of section
26150 could not be severed. They asserted Bruen rendered unconstitutional the “good
cause” provision, the “good moral character” provision, and the “may issue” language
allegedly vesting unbridled discretion in the licensing authorities. Severing those three
provisions, they argued, left a statute that contained no restriction on the executive branch
and did not make grammatical sense. We agree with the People and the holding in In re
D.L., supra, 93 Cal.App.5th at pages 163-165, that the good cause provision is severable.
The provision is grammatically separable. It is contained in a discrete subdivision,
subdivision (a)(2) of section 26150. Excising the subdivision does not impair the
wording or coherence of the remaining provisions in subdivision (a). (Id. at p. 163.)
The good cause provision is functionally separable. The remaining provisions are
complete in themselves and can be applied independently. They require an applicant to
be of good moral character, to reside or work within the city or county where the license
is being issued, and to have completed a firearm safety course. (§ 26150, subd. (a); In re
D.L., supra, 93 Cal.App.5th at p. 163.)
The good cause provision is also volitionally separable. In 2010, when the
Legislature replaced former section 12050 with section 26150, it “included the same
19
general requirements for obtaining a license to carry a concealed weapon, which had been
in former section 12050, without substantive change, but ‘reorganize[d]’ them from a
single paragraph into distinct paragraphs. [(Stats. 2010, ch. 711, § 6.)] This
reorganization illustrates that the Legislature viewed the requirements as separate, and as
functioning independently of one another.” (In re D.L., supra, 93 Cal.App.5th at p. 164.)
C. “Good moral character” provision
Even if the good cause provision is severable, defendants asserted on demurrer
that the “good moral character” element was also unlawful under Bruen and not
severable. Defendants argued that the historical analogical analysis performed by the
Supreme Court in Bruen demonstrated there was no historical analogue for “California’s
scheme.” Bruen, however, did not address an element comparable to good moral
character. Its analogical analysis and its holding were focused on reviewing New York’s
proper cause requirement. (Bruen, supra, 142 S.Ct. at pp. 2135, 2156.) The court found
that American governments from the time of the Colonies through the adoption of the
Second and Fourteenth Amendments generally did not broadly prohibit public carry of
commonly used firearms for personal self-defense. (Id. at pp. 2142-2153, 2156.) It also
found that American governments generally did not require “law-abiding, responsible
citizens” to show a special need for self-protection. (Id. at p. 2156.) The court, however,
made no finding on whether American governments traditionally limited public carry to
persons of “good moral character” or, if they did, whether such a finding was
discretionary or subject to objective factors. In fact, New York’s licensing scheme for a
license to possess a firearm at home, a different license than that sought by the Bruen
petitioners, required the applicant to show he was of “good moral character,” but the
Bruen court did not address that element. (Id. at pp. 2122-2123.) It does not provide the
necessary historical analysis to determine the validity of the good moral character
requirement.
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Nonetheless, defendants correctly argued that Bruen established the test for
determining whether a firearms regulation such as the good moral character clause
violates the Second Amendment. (Bruen, supra, 142 S.Ct. at p. 2126.) Neither the
People in opposing defendants’ demurrer nor the trial court engaged in the historical
analysis required by Bruen to determine the constitutional validity of the good moral
character clause. Instead, the People argued the element remained constitutional because
(1) Bruen did not disturb New York’s moral character element; (2) Bruen cited
Connecticut’s, Delaware’s, and Rhode Island’s “may issue” licensing schemes with
suitability requirements as examples of schemes that do not grant licensing officials
unfettered discretion; (3) a pre-Bruen District of Columbia appellate decision (not the
D.C. Circuit) upheld a suitability requirement; and (4) certain local California agencies
had developed objective and definite standards for defining good moral character. The
People make similar arguments before us.
None of these arguments establish that discretionary statutory authority to deny a
handgun license based on the applicant’s good moral character is consistent with the
nation’s historical tradition of firearm regulation. The Bruen court’s silence about New
York’s good moral character clause cannot be interpreted as assent. New York’s clause
was not placed in issue, as the petitioners in Bruen sought a license under a different
regime that, as far as the opinion discloses, did not include a good moral character clause.
(Bruen, supra, 142 S.Ct. at pp. 2122-2123, 2125.)
However, rather than remand for the People and the trial court to conduct this
analysis, we will assume for purposes of argument only that the good moral character
provision is not consistent with the nation’s historical tradition of firearm regulation and
is unconstitutional. In that case, the question before us becomes whether the clause is
severable from the remainder of section 26150. We conclude it is, for the same reasons
the good cause provision is grammatically, functionally, and volitionally separable. It is
contained in a discrete subdivision, subdivision (a)(1) of section 26150; the remaining
21
provisions can be applied independently; and the Legislature evidenced its intent that the
clause be separable. (See In re D.L., supra, 93 Cal.App.5th at pp. 163-165.)
D. “May issue” Clause
Defendants further argued in their demurrer that section 26150’s failure to define
“good moral character” rendered the law unconstitutional under Bruen because local
officials had unbridled discretion to define the term how they pleased. Their discretion
also arose from the statute’s stating that a licensing official “may issue” a license if the
listed criteria are met, including the establishment of a good moral character. (§ 26150,
subd. (a).)
The trial court determined that Bruen invalidated the entire licensing scheme by
holding as unconstitutional public carry licensing schemes that relied on the
government’s exercise of discretion to issue the license. These schemes stated the
government “may issue” a license as opposed to “shall issue” upon proof of narrow,
objective factors. The trial court held that the “may issue” language in section 26150 was
at the statute’s heart and was not severable from the remainder of the statute.
Defendants and the trial court misread the holding in Bruen. The Bruen court
based its holding on the “proper cause” language in the New York statute, not on that
statute’s use of the phrase “may issue” or the discretionary nature of the licensing
scheme. (Bruen, supra, 142 S.Ct. at pp. 2138, 2156; In re D.L., supra, 93 Cal.App.5th at
p. 166.) The court said as much in a footnote. The dissent had argued that the court
could not determine the New York statute’s constitutionality without reviewing evidence
of how much discretion the licensing authorities possessed or how they had exercised
their discretion. (Bruen, at p. 2135, fn. 8.) The majority disagreed and stated that issue
was not relevant to its holding: “The dissent does not dispute that any applicant for an
unrestricted concealed-carry license in New York can satisfy the proper-cause standard
only if he has ‘ “ ‘a special need for self-protection distinguishable from that of the
22
general community.’ ” ’ [Citation.] And in light of the text of the Second Amendment,
along with the Nation’s history of firearm regulation, we conclude below that a State may
not prevent law-abiding citizens from publicly carrying handguns because they have not
demonstrated a special need for self-defense. [Citation.] That conclusion does not
depend upon any of the factual questions raised by the dissent. [Petitioners] allege that
they were denied unrestricted licenses because they had not ‘demonstrate[d] a special
need for self-defense that distinguished [them] from the general public.’ [Citation.] If
those allegations are proven true, then it simply does not matter whether licensing
officers have applied the proper-cause standard differently to other concealed-carry
license applicants; [petitioners’] constitutional rights to bear arms in public for self-
defense were still violated.” (Ibid.)
It is true the Supreme Court commented on the discretionary nature of New
York’s licensing law. It stated that 43 states are “shall issue” jurisdictions, where
licensing authorities “must issue concealed-carry licenses whenever applicants satisfy
certain threshold requirements, without granting licensing officials discretion to deny
licenses based on a perceived lack of need or suitability.” (Bruen, supra, 142 S.Ct. at
p. 2123, fn. omitted.) In comparison, New York, California, and five other jurisdictions
have “may issue” licensing laws under which authorities have discretion to deny
concealed-carry licenses “even when the applicant satisfies the statutory criteria, usually
because the applicant has not demonstrated cause or suitability for the relevant license.”
(Id. at p. 2124.)
The Bruen majority, however, did not hold that such “may issue” laws are facially
unconstitutional. In providing examples of acceptable “shall issue” licensing laws, the
court showed that the mere use of the terms “may issue” in a licensing law did not
automatically grant the licensing authorities unconstitutional discretion over issuing
licenses, including when the statutes required a showing of good moral character or
23
suitability. Whether a “may issue” regime operated as a “shall issue” regime was an
issue for an as-applied challenge, not a facial challenge.
Specifically, the Supreme Court recognized that three states—Connecticut,
Delaware, and Rhode Island—have discretionary criteria similar to California’s good
moral character requirement “but appear to operate like ‘shall issue’ jurisdictions.”
(Bruen, supra, 142 S.Ct. at p. 2123, fn. 1, italics added.) Connecticut’s licensing statute
at the time Bruen was decided stated the licensing authority “may issue a temporary state
permit” upon finding the applicant is a “suitable person.” (Conn. Gen. Stat. § 29-28(b)
(2021) [2016 Conn. Legis. Serv. P.A. 16-34].) This suitable person standard precluded
permits “only to those ‘individuals whose conduct has shown them to be lacking the
essential character of temperament necessary to be entrusted with a weapon.’ (Dwyer v.
Farrell [(1984) 193 Conn. 7, 12 [].)]” (Bruen, supra, 142 S.Ct. at p. 2123, fn. 1.)
Delaware’s licensing statute states a person of “good moral character” “may be
licensed” when conditions are met. (Del. Code Ann. tit. 11, § 1441(a).) Ultimate
approval is left to the superior court who “may or may not, in its discretion, approve any
application.” (Del. Code Ann. tit. 11, § 1441(d).) The Bruen court noted that as of the
date of its opinion, Delaware had “thus far processed 5,680 license applications and
renewals in fiscal year 2022 and has denied only 112. [(See Del. Courts, Super. Ct.,
Carrying Concealed Deadly Weapon (June 9, 2022),
https://courts.delaware.gov/forms/download.aspx?ID=125408.)] Moreover, Delaware
appears to have no licensing requirement for open carry.” (Bruen, supra, 142 S.Ct. at
p. 2123, fn. 1.)
Rhode Island’s licensing statute states the licensing authorities “shall . . . issue” a
concealed carry license upon finding the applicant is a “suitable person” to be licensed.
(R. I. Gen. Laws § 11–47–11(a).) The Supreme Court emphasized that the demonstration
of a proper showing of need is not a requirement of Rhode Island’s statute. (Bruen,
supra, 142 S.Ct. at p. 2123, fn. 1.)
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The Bruen court’s citation to these statutes as “shall issue” statutes demonstrated
the court was not facially condemning licensing schemes based solely on their use of
“may issue” language or the exercise of discretion. The court’s language that these
jurisdictions “appear to operate like ‘shall-issue’ jurisdictions” indicates that, unless it
can be determined from the face of the provision, whether a licensing scheme vests an
amount of discretion in licensing authorities that exceeds what the Second Amendment
allows is an issue best decided in as-applied challenges, not facial challenges. This is
because the argument of whether discretion was unlawfully exercised would not apply in
all circumstances. (In re D.L., supra, 93 Cal.App.5th at p. 166.)
Defendants, of course, could not have raised an as-applied challenge on demurrer.
(Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1085.) The trial court thus erred in
finding on demurrer that Bruen invalidated section 26150 based on the statute’s vesting
of discretion in licensing authorities under the “may issue” language.
Defendants did not challenge the remaining concealed carry licensing
requirements. Those requirements advance California’s long-held goals of “ensuring
Californians who carry firearms are responsible and law-abiding, live in or have
substantial contact with the licensing jurisdiction (since local law enforcement is tasked
with licensee compliance), and know how to safely handle a gun.” (In re D.L., supra,
93 Cal.App.5th at p. 166.) The Bruen court noted that “nothing” in its analysis casts
doubt on the constitutionality of licensing regimes that required applicants to “undergo a
background check or pass a firearms safety course” as a condition for carrying firearms in
public. (Bruen, supra, 142 S.Ct. at p. 2138, fn. 9.)
Because section 26150’s “good cause” and “good moral character” requirements
are severable, and because Bruen did not facially invalidate the statute’s “may issue”
provision, section 26150 does not facially violate the Second Amendment. Since the
statute is a valid licensing provision and provides a valid means for citizens to exercise
their right under Bruen to possess a handgun in public for self-defense, defendants’
25
Second Amendment rights are not violated when the state enforces that provision
criminally.
DISPOSITION
The judgment is reversed, and the trial court is directed to overrule defendants’
demurrers.
HULL, J.
We concur:
EARL, P. J.
MESIWALA, J.
26