In Contemplating Ban on Openly Carrying Unloaded Firearms, Los Angeles
City Council Unwittingly Invites Legal Challenge to City's Restrictive CCW Policy
On January 21, 2011, Los Angeles City Council President Eric Garcetti introduced a motion to prepare an ordinance that would ban openly carrying unloaded firearms (UOC) in the City (Council File 11-0109). The proposal was seconded by Council Members Paul Koretz, Bernard Parks, Jan Perry, Ed Reyes, Herb Wesson, Jr., and Dennis Zine. In doing so, the Council has unwittingly given Second Amendment advocates an avenue for forcing the City to issue permits to carry concealed firearms (CCW). The City has been notoriously resistant to issuing those CCW permits.
In an unusual move typically reserved for urgent priority actions, instead of referring the UOC motion to the Public Safety Committee for initial review, as is usually done when a motion first appears before the City Council, Garcetti dramatically referred the motion directly to the entire Council via City Council Rule 16 so it could be voted on quickly. Under Rule 16, a Council member may send an item directly to the Council without it having to go to a Council Committee first.
The UOC motion was scheduled to be discussed at the January 28, 2011 City Council meeting. But at that meeting, the Council voted to postpone the "urgent" motion until February 9, 2011. Then, interestingly, at the February 9th meeting the Council once again voted to continue the motion - this time until March 2, 2011.
If and when the Council ever does actually get around to voting, and if the motion passes, the City Attorney's office will then prepare a report on the legality of banning UOC within the City, along with a draft ordinance.
The continued postponement of this agenda item may well reflect the Council's realization of what a tricky situation they have gotten themselves into, both politically and legally, with this proposal.
Legally, the proposal is preempted by state law, which means cities like Los Angeles lack the authority to regulate the carrying of firearms. The City might dispute that, but there are also First Amendment issues. Because many people who UOC do so as an expression of political protest to the fact that they are denied the right to carry a loaded firearm, UOC is activity protected under the First Amendment.
But these legal issues aside, if the proposal is adopted it will invite a lawsuit to force the City to issue CCWs, something the City has been notoriously resistant to doing. The Second Amendment right to bear arms requires government to allow people to carry a firearm in public in some manner for immediate self-defense - that is, either openly or concealed. Government can regulate and choose the manner of carry, but it cannot outlaw both forms of carry.
Though it is the position of most legal scholars that the Second Amendment protects a right to carry loaded firearms, some have asserted UOC is sufficient to pass constitutional muster. Recently, a federal judge ruled in Peruta v. San Diego LINK that the California scheme allowing unloaded open carry of firearms while carrying ammunition separately, and permitting the gun to be loaded in the face of immediate grave danger, would save California's concealed firearm permitting law from being an unconstitutional infringement of the Second Amendment fundamental right to self defense if that right extends beyond the home. (The case is currently on appeal).
California law enforcement authorities who issue CCWs can withhold those permits unless "good cause" is established by the applicant. CCW issuing authorities have historically been allowed to exercise great discretion in deciding what constitutes "good cause." In anti-self defense jurisdictions, they use that discretion to require an applicant to meet the almost impossible burden of documenting an immediate specific threat to the applicant to establish "good cause." In doing so, cities like Los Angeles have been able to impose their anti-self-defense political philosophy on the issuance process, and issue few or no permits. But without UOC as an option, cities with restrictive CCW policies like Los Angeles are without any defense to a Second Amendment challenge, and could be compelled to issue CCW permits to any applicant who simply cites "self-defense" as good cause, regardless of whether the applicant can document a specific threat.
So if the City Council outlaws UOC, it will put the City in a legal position where it may well be forced to issue CCWs. Oops!
Politically, the City is stepping on the toes of state legislators who, Sacramento political newsletters report, are unhappy with Council President Garcetti sticking his nose into an issue state legislators want to publicize. State Assemblymember Anthony Portantino has introduced Assembly Bill (AB) 144, which would amend state law to ban UOC in public places statewide. . State legislators are also grappling with the constitutional issues with such a law.
Perhaps as a way to dance around the controversy, the Council is also in the process of adopting a resolution declaring support for AB 44, which may wind up being a substitute for the proposed local UOC ban (See Council File 11-0002-S4). Or maybe the City Attorney's report, if it ever gets prepared, will give them an out.
Regardless, this will be interesting to watch.
Seventeen years ago the NRA and CRPA joined forces to fight local gun bans being written and pushed in California by the gun ban lobby. Their coordinated efforts became the NRA/CRPA "Local Ordinance Project" (LOP) - a statewide campaign to fight ill-conceived local efforts at gun control and educate politicians about available programs that are effective in reducing accidents and violence without infringing on the rights of law-abiding gun owners. To contribute to the NRA or to the NRA/CRPA LOP and support this and similar efforts, visit www.nraila.org