California General Ban on Nonresidents' Getting Concealed Carry Licenses Violates Second Amendment

From today’s Hoffman v. Bonta, decided by Judge Cathy Ann Bencivengo (S.D. Cal.):

The sole issue in this case is whether the Constitution requires California to allow nonresidents to apply for a concealed carry weapons (CCW) license. Plaintiffs, who are not California residents, complain that they are prohibited from carrying a firearm for self-defense when they visit California. For standard two-year licenses, California imposes a residency requirement. An applicant who has his or her principal place of business or employment within the local permitting jurisdiction may receive a 90-day license. Unlike some states, California does not have a reciprocity policy for CCW licenses.

The State argues … that … the Second Amendment does not mandate that a traveler be allowed to use another state’s license to carry in California. In effect, they argue that nonresidents do not qualify as “the people.” The Supreme Court has not interpreted “the people” so narrowly. See Heller (the people “unambiguously refers to all members of the political community, not an unspecified subset”)….

California [argues that its rule is justified by] historical analogues relating to various “locality-based licensing laws” from the mid-19th century…. The problem for the State is not the licensing laws themselves: Plaintiffs do not seek California’s licensing scheme stricken in its entirety. Instead, the State must provide a historical analogue for licensing laws that did not allow nonresidents to apply. For that category of restriction, the State provides a series of state laws from the early 1900s that appear to impose residency requirements on licenses. Ignoring that these laws do not date to the Founding or Ratification Era, many laws from the same period explicitly allowed nonresidents to apply.

Earlier laws identified by the State also appear to support the Plaintiffs’ position. For example, Connecticut in 1642 barred the sale of guns to those outside its jurisdiction unless the person possessed a license from a court or magistrate, without an explicit pre- application ban for nonresidents. The historical record also contains laws that provided “traveler exceptions” to carry laws. Sacramento law in 1876, cited by the State, specifically excepted “travelers” from a firearms licensing requirement that applied to residents….

[The state points to] Founding Era laws (from New Jersey and North Carolina) that barred nonresidents from hunting within their borders. Unlike the California law at issue in this case, the identified laws restricted only the activity of hunting, not bearing arms in general.

The State argues that the Court may extract a general principle that relevant regulations limited licenses to “acceptable” persons. But weighed against the guidance that a historical regulation must be “comparably justified,” California cannot meet its burden with its proffered analogues. The State cannot point to a single law from the Founding or framing tradition that wholesale blocked nonresidents from participating in a general firearms licensing scheme….

Opening the application process to nonresidents does not limit California’s ability to regulate who receives a CCW license based on other measured parameters. Nonresidents are simply afforded the same chance guaranteed to residents to exercise their Second Amendment rights. In reaching this conclusion, the Court agrees with its sister court in the Central District that the challenged statutory framework’s exclusion of nonresidents violates the Second Amendment….

Nothing in this order should be construed to mandate that California provide the exact same requirements for a CCW license for residents and nonresidents—the historical record may well contravene such a proposition. [Spitzer Decl. ¶ 69 (identifying an 1899 Wyoming measure that imposed a fee forty times higher on nonresidents for a gun license).] Overburdening nonresidents in the application process may violate Plaintiffs’ Second Amendment rights, but parity is not necessarily required….

Plaintiffs also seek a declaratory judgment as to whether California’s enforcement of a nonresident ban violates the Privileges and Immunities Clause. U.S. Const., Art. IV, § 2, cl. 1. There is continuing debate on the scope of the Privileges and Immunities Clause. See generally William Baude, et al., General Law and the Fourteenth Amendment, 76 Stan.L. Rev. 1185, 1205–06 (2024).  Some courts have concluded that the Privileges and Immunities Clause has been cabined by precedent to economic rights. See, e.g., Culp v. Raoul (7th Cir. 2019).

Declaratory relief based on the Privileges and Immunities Clause would neither afford Plaintiffs additional remedies nor serve to clarify the contours of this constitutional provision. As such, the Court declines to rule on the requested relief.

Bradley Benbrook and Stephen Duvernay (Benbrook Law Group, PC) represent plaintiffs. One of the plaintiffs is the Firearms Policy Coalition, which also supported the litigation. I have consulted in the past for the FPC, but I wasn’t involved in this case.

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