Project Gunrunner & Alan Gura’s CA amicus

From:  No Lawyers – Only Guns and Money

Darrel Issa: “This Was No Rogue Operation” Fox News interviews  Congressman Darrell Issa about the investigation into the ATF operation that sent thousands of guns to Mexico via sales that FFL’s were told to sell the guns by the ATF.

From: Arms and the Law

Alan Gura’s amicus brief in a CA case that is much like what we have in NY.  In NY the local Judge is the “issuing authority” where in CA it is the Sheriff.  This is a must read for the hard core.

In Part:
California’s “good moral character” and “good cause” requirements
for issuance of a handgun carry permit fail constitutional scrutiny as an
impermissible prior restraint. The right to carry a firearm for selfdefense
is plainly among the “freedoms which the Constitution
guarantees.” Staub, 355 U.S. at 322. The government thus bears the
burden of proving that the an applicant may not have a permit, for a
constitutionally-compelling reason defined by standards that are
“narrow, objective and definite.” Shuttlesworth, 394 U.S. at 151.
“Good cause,” as used in California Penal Code § 12050, is plainly
among the impermissible “illusory ‘constraints’” amounting to “little
more than a high-sounding ideal.” City of Lakewood v. Plain Dealer
Publishing Co., 486 U.S. 750, 769-70 (1988); see, e.g. Largent, 318 U.S.
at 422 (“proper or advisable”); Diamond v. City of Taft, 29 F. Supp. 2d
633, 650 (C.D. Cal. 1998) (rejecting condition that license be “essential
or desirable to the public convenience or welfare”), aff’d, 215 F.3d 1052
(9th Cir. 2000).

Even less defensible is the requirement of “good moral character.”
The Supreme Court long ago rejected the constitutionality of an
ordinance demanding “good character” as a prerequisite for a
canvassing license. Schneider v. New Jersey (Town of Irvington), 308
U.S. 147, 158 (1939). Absent further definition, courts typically reject
all forms of “moral character” standards for the licensing of
fundamental rights. … .

An argument may be advanced that because Penal Code § 12050
permits Sheriffs to define their licensing standards, the provision can
only be challenged in light of such actual policies and practices. And as
a secondary argument, Appellants (and amici) argue that Section 12050
may be applied constitutionally if the “good cause” requirement were
interpreted to require only a constitutional purpose for the bearing of
arms, e.g., self-defense. Sacramento County’s response to amici’s 6
lawsuit supplies an example of this accommodation.
But Section 12050 nonetheless remains subject to a facial attack, as
it is not enough to claim that the licensing official will not act
arbitrarily. “A presumption that a city official ‘will act in good faith and
adhere to standards absent from the ordinance’s face . . . is the very
presumption that the doctrine forbidding unbridled discretion
disallows.’” Long Beach, 574 F.3d at 1044 (quoting Lakewood, 486 U.S.
at 770).


when the exercise of a right is licensed—subjected, in
constitutional parlance, to a “prior restraint”—that prior restraint must
be permitted only pursuant to objective, well-defined standards that
eliminate the exercise of personal discretion. All subjective, freefloating
licensing “standards” are barred from application against the
exercise of constitutional rights. And the standards most readily
identifiable as improper are those of the type present in California
Penal Code § 12050––“standards” that allow officials to determine
whether the exercise of a constitutional right is a good idea, and
“standards” that place the police in charge of evaluating an individual’s
moral character. An official’s personal views of someone’s suitability to
enjoy constitutional rights, or of an individual’s moral virtue, simply
cannot be factors in regulating the exercise of constitutional rights.

 

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