The Heller Gun Decision Week 14 – The U.S. Senate Holds H.R. 6842 and California Holds SB 327

In addition, the Governor vetoed AB 2696 (Krekorian) for what I view as a flimsy reason. AB 2696’s main provisions required, commencing July 1, 2011, that mental health facilities that must submit reports to the DOJ regarding mentally disordered persons admitted to those facilities to submit the required reports exclusively by electronic means, in a manner prescribed by the DOJ.

Everyone e-mails in this prohibited person information now - save for mental health facilities for persons “grounded” for mental health prohibitions. The mental health reporting issue is the main reason why California has the longest waiting period in the United States. Where this issue addressed with “RAP Back” capabilities cross-checking against the various gun files, as to current registered gun owners it would allow for much quicker gun processing and better use of the SB 950 program.

In terms of cost, DOJ charges DROS users right now for this system so increased costs is a bogus issue- especially given that the bill would not go into effect until 2011 and DOJ is upgrading its data base system now. The Governor did sign AB 837 by Assemblyman Mike Feuer, which is a NICS 2008 compliance measure.

As Dr. Cavala has noted, we cannot do anything as a matter of California state law to expedite gun transactions for registered gun owners in this state unless and until the mental health database is improved. It is only after that is done with the continual updated cross-checks on existing registrants will California have as to subsequent acquisitions will have a NICS compliant waiting period exemption system as exists now in Clark County Nevada.

One of the reasons I have been so critical of both DC And Congress vis-à-vis the ammunition and registration provisions is that without these data bases it is impossible to: (i) do SB 950 systems; and (ii) speed things up.

I also wanted to comment on SB 327 by outgoing Senator Carole Migden. I know a number of advocates are very upset that the Assembly Appropriations Committee held SB 327 even though we worked out the kinks and got the costs way down to a minimal amount. Given the Governor’s attitude, SB 327 might have been vetoed. I have no doubt it will be reintroduced next year.

The SB 327 issue is not whether people have a card showing that they own a gun. People can get a registration listing right now under current law and the other consumer protections that SB 327 referenced is current law – the reason for 327 was so that people would get a formal receipt of what they transferred or what they acquired with a procedure notification to persons of their rights. It is whether the database is accurate.

For all the discussions on SB 327 and the waiting period, the issue is whether when a driver’s license is swiped [assuming Real-ID takes effect] all the relevant databases can be checked to assure that someone in the system is still eligible to acquire and possess a gun while complying with NICS. SB 327 through its consumer protections of “backup reporting protection” was relevant to this and AB 2696 is totally relevant to this issue.

Last, but not least, the Second Amendment Foundation filed an amicus brief in the long-running case of Nordyke v. King, a challenge to the gun show ban in Alameda County which may be the incorporation case via “reverse incorporation” because of a unique provision of the California Constitution.

Nordyke has been fighting the Alameda County gun show ban on First Amendment grounds for a number of years – and it has been heard by both the Ninth Circuit and the California Supreme Court pursuant to certification procedures - but a recent ruling in the case by the United State District Court Judge opened up the Heller issue. This is a critical issue for all Americans in the wake of the Supreme Court’s ruling that the Second Amendment protects an individual civil right to keep and bear arms.

Filing the brief on SAF’s behalf before the Ninth Circuit Court of Appeals is Alan Gura who successfully argued Heller before the United States Supreme Court. While Gura notes that the right to bear arms clearly meets the modern incorporation standard [in my view] there is a twist in this case which I refer to as “reverse incorporation” - the process where by recognizing a federal right the State in effect via the State Constitution incorporates that federal right as a right of individuals under the California Constitution.

This argument has not surfaced yet BUT the basis for this theory is that Article III, § 1 of the California Constitution states that “The State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land. “ At the same time, Article I, § 24 provides that “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” While it is clear that Article III, Section 1 is an anti-secession clause, its effects beyond that in terms of “reverse incorporation” is yet to be determined.

We may yet see an argument made that as to the Second Amendment given that it recognizes an individual right ergo the State Constitution does so as well via a “reverse incorporation” argument by utilizing Article III, Section 1 of the California Constitution. However, before this argument can be made in a federal case - which involves an issue of State law - the Ninth Circuit would have to certify the issue to the California Supreme Court pursuant to California Rule of Court 29.5 and the California Supreme Court to grant certification and rule on the issue.

Since the mid 1980's Irwin Nowick has worked for the California State Assembly and State Senate on a plethora of policy issues, most notably firearms legislation. He has been described as "The Assembly's resident genius" by a former Speaker of the Assembly and is seen frequently in the Capitol hallways and offices assisting legislators in drafting and amending pending legislation.