Last Friday, one day after the Supreme Court’s landmark NYSRPA v Bruen decision (analyzed fully here), California’s Attorney General Rob Bonta rushed out a bizarre letter offering inept guidance to various state officials involved in issuing concealed carry licenses, poorly researched advice that, if followed, will get these agencies sued.
At first it sounded good, getting rid of the good cause requirement for CCW issuance was obviously mandatory after the Supreme Court struck down a similar provision in New York’s statute. New Jersey also eliminated their “justifiable need” requirement the same day.
Bonta didn’t stop there. He went on to urge issuing authorities to make an “independent determination” of “good moral character” based on a non-statutory laundry list of mostly subjective criteria developed over decades of “may issue” regime:
Accordingly, in assessing whether an applicant has established “good moral character,” issuing authorities should recognize that Bruen does not eliminate the duty or authority of local officials to protect the communities that they know best by ensuring that licenses are only issued to individuals who—by virtue of their character and temperament—can be trusted to abide by the law and otherwise ensure the safety of themselves and others. The investigation into whether an applicant satisfies the “good moral character” requirement should go beyond the determination of whether any “firearms prohibiting categories” apply, such as a mental health prohibition or prior felony conviction. Those categories, which may be found to apply during the DOJ-conducted background check (including the many categories pertaining to an applicant’s criminal history), simply determine whether the applicant is even eligible to own or possess firearms under state and federal law. When it comes to evaluating an applicant’s moral character, however, the issue is not whether the applicant meets the minimum qualifications to own or possess firearms under other statutory criteria. “Good moral character” is a distinct question that requires an independent determination.
Existing public-carry policies of local law enforcement agencies across the state provide helpful examples of how to apply the “good moral character” requirement. The Sacramento County Sheriff’s Office, for example, currently identifies several potential reasons why a public-carry license may be denied (or revoked), which include “[a]ny arrest in the last 5 years, regardless of the disposition” or “[a]ny conviction in the last 7 years.”2 It is reasonable to consider such factors in evaluating an applicant’s proof of the requisite moral character to safely carry firearms in public. See, e.g., Bruen, slip op. p. 63 (referencing “law-abiding citizens”). Other jurisdictions list the personal characteristics one reasonably expects of candidates for a public-carry license who do not pose a danger to themselves or others. The Riverside County Sheriff’s Department’s policy, for example, currently provides as follows: “Legal judgments of good moral character can include consideration of honesty, trustworthiness, diligence, reliability, respect for the law, integrity, candor, discretion, observance of fiduciary duty, respect for the rights of others, absence of hatred and racism, fiscal stability, profession-specific criteria such as pledging to honor the constitution and uphold the law, and the absence of criminal conviction.”3
As a starting point for purposes of investigating an applicant’s moral character, many issuing authorities require personal references and/or reference letters. Investigators may personally interview applicants and use the opportunity to gain further insight into the applicant’s character. And they may search publicly-available information, including social media accounts, in assessing the applicant’s character. Finally, we note that it remains reasonable—and constitutional—to ask applicants why they are interested in carrying their firearms in public. Although applicants do not need to demonstrate good cause for the issuance of a license, an applicant’s reasons for seeking a license may alert authorities to a need for psychological testing, be considered as part of the “good moral character” requirement, or provide information relevant to other statutory requirements.
[Emphases added]
Bonta treats Bruen as being concerned only with elevated cause. But the Bruen majority opinion itself in several instances, some discussed later, shows it is concerned primarily with the objective allowance of public carry, with or without licensing. Here is a quote from the very first page of the opinion:
In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need. [Emphasis added]
That the majority is concerned about protecting objective, non-discriminatory licensed-carry laws is further corroborated by Alito’s concurring opinion (page 3, note 1):
(“[P]opulation-level data on licensed carry is extensive, and the weight of the evidence confirms that objective, non-discriminatory licensed-carry laws have two results: (1) statistically significant reductions in some types of violent crime, or (2) no statistically significant effect on overall violent crime”); [Emphasis added]
Yet all can see plainly, from what I bolded for emphasis in his letter, that Bonta’s “independent determination” is anything but objective. An “assessment” is made of good moral character (whatever that is). Bonta says local officials have a duty or authority to protect communities by ensuring that licenses are only issued to individuals who can be trusted. He claims an investigation is required going beyond the mental/criminal background checks and other statutory criteria required for owning/possessing a gun. No, “good moral character” is a distinct question that requires an independent determination. There are no statutorily-prescribed objective criteria defining it; instead, he offers helpful examples of policies of agencies from multiple jurisdictions across the state. Sacramento’s sheriff and Bonta think it’s cool to deny a fundamental constitutional right because of [a]ny arrest in the last 5 years, regardless of the disposition” or “[a]ny conviction in the last 7 years. Bonta says it is reasonable to consider such factors in evaluating an applicant’s proof of the requisite moral character to safely carry firearms in public. What exactly is the requisite moral character? Not very objective, is it? Other jurisdictions list the personal characteristics one (Bonta?) reasonably expects of candidates for a public-carry license who do not pose a danger to themselves or others. Here’s Riverside sheriff’s list: honesty, trustworthiness, diligence, reliability, respect for the law, integrity, candor, discretion, observance of fiduciary duty, respect for the rights of others, absence of hatred and racism, fiscal stability, profession-specific criteria such as pledging to honor the constitution and uphold the law, and the absence of criminal conviction. So in other words, dishonest people can be denied a fundamental individual constitutional right because they pose a danger to themselves or others. And untrustworthy people can be denied a fundamental individual constitutional right because they pose a danger to themselves or others. And undiligent people can be denied a fundamental individual constitutional right because they pose a danger to themselves or others. And unreliable people can be denied a fundamental individual constitutional right because they pose a danger to themselves or others. And unlawrespecting people can be denied a fundamental individual constitutional right because they pose a danger to themselves or others. And people without integrity can be denied a fundamental individual constitutional right because they pose a danger to themselves or others. And people devoid of candor can be denied a fundamental individual constitutional right because they pose a danger to themselves or others. And people without discretion can be denied a fundamental individual constitutional right because they pose a danger to themselves or others. And bad fiduciaries (we won’t even call them people) can be denied a fundamental individual constitutional right because they pose a danger to themselves or others. And people (like Bonta) who don’t have respect for the rights of others can be denied a fundamental individual constitutional right because they pose a danger to themselves or others. And people who hate (like me) can be denied a fundamental individual constitutional right because they pose a danger to themselves or others. And racists (like everyone) can be denied a fundamental individual constitutional right because they pose a danger to themselves or others. And fiscally unstable people (anyone without a public pension) can be denied a fundamental individual constitutional right because they pose a danger to themselves or others. And people who do not pledge to honor the constitution can be denied a fundamental individual constitutional right because they pose a danger to themselves or others (you’re good if you just pledge, even if you fail to honor it, because in that case you probably have a public pension). And people who have a criminal conviction (or any convictions) can be denied a fundamental individual constitutional right because they pose a danger to themselves or others. Bonta suggests a good starting point for the investigation would be the personal references and/or reference letters required by many issuing authorities. Can you name any other fundamental individual constitutional rights that require reference letters?! Investigators may personally interview applicants and use the opportunity to gain further insight into the applicant’s character. Not very objective! And they may search publicly-available information, including social media accounts, in assessing the applicant’s character. More creepy subjective analysis, but it does help the litigation budget when you can add First Amendment claims to the mix! Then Bonta wraps up, suggesting applicants can be interrogated about why they want to carry, until grounds are found for psycholgical testing. (Concealed carry was possible in the Soviet Union, but psychological testing was required.)
And Bonta supposes all this “independent determination” is okay under Bruen, citing a net total of four words from the majority opinion in Bruen, and a net total of four words from Kavanaugh’s concurring opinion, which we could ignore because it’s a concurring opinion (but we won’t). What was Bonta smoking? Do we need to smoke the same thing to exhibit Good Moral Character?
Bonta cites to Bruen‘s majority opinion twice. First he quotes four words from footnote 9 on page 30 the slip opinion (“law-abiding, responsible citizens”):
Bruen recognizes that States may ensure that those carrying firearms in their jurisdiction are “‘law-abiding, responsible citizens.’” Bruen, slip op. p. 30 n.9
Then he quotes three words on page 63, the last page of the opinion (“law-abiding citizens”), lifting those words right out of the holding, and since those words duplicate most of the other small quote it’s really just a net of four words actually quoted. I suppose this second quote was seen as necessary to tie the phrase in with the holding somehow, as the first quote was merely a footnote comment regarding shall-issue jurisdictions, which California is not, and certainly won’t be, under Bonta’s issued guidance. Because if, as Bonta wants you to believe, you need to allow his “independent determination” of “good moral character” using an arbitrary collection of discretionary, subjective criteria developed under decades of “may-issue” rule, in order to qualify someone as a “law-abiding citizen” entitled to rely on the Bruen holding for protection against discretionary issuance, then the holding is defeated by circular reasoning. Bonta has just incorporated discretionary carry into the definition of non-discretionary carry. While Bonta’s statement regarding the first quote (footnote on page 30) is true, here is the entire footnote for better context:
9 To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which “a general desire for self-defense is sufficient to obtain a [permit].” Drake v. Filko, 724 F. 3d 426, 442 (CA3 2013) (Hardiman, J., dissenting). Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent “law-abiding, responsible citizens” from exercising their Second Amendment right to public carry. District of Columbia v. Heller, 554 U. S. 570, 635 (2008). Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.” Ibid. And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials, Shuttlesworth v. Birmingham, 394 U. S. 147, 151 (1969), rather than requiring the “appraisal of facts, the exercise of judgment, and the formation of an opinion,” Cantwell v. Connecticut, 310 U. S. 296, 305 (1940)—features that typify proper-cause standards like New York’s. That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry. [Emphases added]
So what is the full context of this footnote? The footnote discusses shall-issue regimes, for which a general desire for self-defense is sufficient to obtain a permit. California is in no way a shall-issue regime, even after shedding the good cause requirement, because Bonta still wants to make an independent determination based on subjective, amorphous criteria that you are of “good moral character”. He offers no “narrow, objective, and definite standards” for this determination. He offers widely divergent examples used by multiple county jurisdictions, and they are all subjective as hell. Why? Because they were developed over decades of “may-issue” discretionary rule, where there was never any need to be objective. All of the methodologies he cites in his letter require the appraisal of facts, the exercise of judgment, and the formation of an opinion. The footnote aknowledges that even shall-issue regimes can be constitutionally invalid due to abuse, for example with lengthy wait times or exorbitant fees, and we can of course expect to see those issues in California as well. The footnote does not warn about abusive “independent determination of good moral character” because there is no such thing under shall-issue regimes. You pass the firearm training and the background check, and you are good to go. You are a “law-abiding, responsible citizen” if you pass those objective hurdles. That’s shall-issue, that’s what this footnote is talking about, and Bonta’s “independent determination” of “good moral character” is not at all relevant to the meaning of “law-abiding, responsible citizens” in this footnote; nor is it relevant to the meaning of “law-abiding citizen” in the last paragraph of this opinion. So the “net total of four words” quoted from the majority opinion is really a net zero, because Bonta’s quote has absolutely zero relevance.
Bonta also cited Kavanaugh’s concurring opinion. While keeping in mind it’s just a concurrence, let’s take a quick look to see if it adds anything:
see also id. slip op. p. 2 (Kavanaugh, J., concurring) (States may “require a license applicant to undergo a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements”).
Okay, Bonta has four good relevant words here in his quote (“among other possible requirements”). Have to acknowledge at least that. But everything else is irrelevant because background check, mental health records check, and firearms training requirements, are not at issue. Bonta’s own memo states that those things are not sufficient for his independent determination of good moral character. So yes, four relevant words, but how relevant? What requirements are possible? The majority opinion determines that, not Kavanaugh’s concurrence, and the majority opinion precludes independent determination based on subjective criteria.
Finally, what kind of legal guidance warns the recipient to consult their own lawyer and do their own research?
Law enforcement agencies that issue licenses to carry firearms in public should consult with their own counsel, carefully review the decision in Bruen, take the following guidance into account, and continue protecting public safety while complying with state law and the federal Constitution. [Emphasis added]
In conclusion, any issuing authority relying on Bonta’s foolish guidance will need to increase litigation reserves. The way things are heating up in 2A jurisprudence, personal liability of officials under §1983 may be something to consider. Lawyer up, everyone!
