Sandy wrote: It was a proper ruling. The case wasn't even really about RKBA, either state or federal. The questions dealt with equal protection and separation of powers. I don't think 9th Circuit precedent was even mentioned in the decision. Regardless, state courts have no authority to overrule or be contrary to federal courts, so it's nuts to think that she should've done so (as if the rest of the court would've gone along with that!).
Here's the decision. Scroll down and read her concurrence. (Weird, she wrote the majority opinion plus a separate concurrence. ) She's obviously very pro 2nd Amendment, imo. Check it out.
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CONCURRING OPINION BY BROWN, J.
BROWN, J., concurring.
I
I concur in the judgment and opinion of the court. I am writing separately because, although the rejection of the equal protection claim is compelled by the majority opinion in Warden v. State Bar (1999) 21 Cal.4th 628 (Warden), I would independently reach the same conclusion under the unique circumstances of this case.
In Warden, a majority of this court abandoned our longstanding commitment to "`"serious and genuine judicial inquiry"´" into equal protection claims in favor of the highly deferential rational basis formulation articulated by the United States Supreme Court. (Warden, supra, 21 Cal.4th 628, 661 (dis. opn. of Brown, J.), quoting Newland v. Board of Governors (1977) 19 Cal.3d 705, 711, quoting Dorrough v. Estelle (5th Cir. 1974) 497 F.2d 1007, 1011.) Under the standard adopted by the Warden majority, "`[I]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations.] Where there are "plausible reasons" for [the classification] "our inquiry is at an end.´" (FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 313, italics added, quoting U.S. Railroad Retirement Bd. v. Fritz (1980) 449 U.S. 166, 179; see, e.g., Central State University v. Amer. Assoc. of University Professors (1999) 526 U.S. 124; Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 130-132.)" (Warden, at p. 644.)
The dichotomy between the United States Supreme Court's laissez-faire treatment of social and economic rights and its hypervigilance with respect to an expanding array of judicially proclaimed fundamental rights is highly suspect, incoherent, and constitutionally invalid. "[T]he outcome in every case turns on how the court chooses to characterize the classification. Suspect classifications, such as those based on race or that impact rights the court deems `fundamental,´ warrant strict (read `fatal´) scrutiny; other classifications warrant rational basis (read `anything goes´) review. (FCC v. Beach Communications, Inc., supra, 508 U.S. 307, 313-316.) As Justice Mosk so aptly put it, `[t]he vice of the binary theory . . . is that it applies either a standard that is virtually always met (the rational relationship test) or one that is almost never satisfied (the strict scrutiny test). [Citation.] Once the test is selected, the result of its application is foreordained. . . .´ (Hays v. Wood (1979) 25 Cal.3d 772, 796 (conc. opn. of Mosk, J.).)" (Warden, supra, 21 Cal.4th at pp. 661-662 (dis. opn. of Brown, J.).) Just so, the result here was foreordained once we assumed "the AWCA does not burden a fundamental right under either the federal or state Constitutions, [and therefore,] the rational basis test applies. (See Peoples Rights Organization, Inc. v. City of Columbus (6th Cir. 1998) 152 F.3d 522, 531-533; Coalition of New Jersey Sportsmen, Inc. v. Whitman (D.N.J. 1999) 44 F. Supp.2d 666, 685; California Rifle [& Pistol Assn., Inc. v. City of West Hollywood (1998)] 66 Cal.App.4th 1302, 1329; Suter v. City of Lafayette (1997) 57 Cal.App.4th 1109, 1133; In re Evans (1996) 49 Cal.App.4th 1263, 1270.)" (Maj. opn., ante, at p. 6.)
This case, however, illustrates the illusory nature of the distinction between "fundamental rights" and "areas of social and economic policy." Curiously, in the current dialectic, the right to keep and bear arms - a right expressly guaranteed by the Bill of Rights - is deemed less fundamental than implicit protections the court purports to find in the penumbras of other express provisions. (See, e.g., Cruzan v. Director, Mo. Dept. of Health (1990) 497 U.S. 261, 278-279; Zablocki v. Redhail (1978) 434 U.S. 374, 384-387; Moore v. City of East Cleveland (1977) 431 U.S. 494, 499-500.) But surely, the right to preserve one's life is at least as fundamental as the right to preserve one's privacy.
The founding generation certainly viewed bearing arms as an individual right based upon both English common law and natural law, a right logically linked to the natural right of self-defense. Blackstone described self-defense as the "primary law of nature," which could not be taken away by the law of society. (2 Jones's Blackstone (1976) p. 4.) "[T]he peaceable part of mankind will be continually overrun by the vile and the abandoned, while they neglect the means of self defense. . . . The supposed quietude of the good man allures the ruffian; . . . (but) arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world. . . . Horrid mischief would ensue were (the good) deprived of the use of [weapons] . . . the weak will become a prey to the strong." (1 Paine, The Writings of Thomas Paine (Conway edit. 1894) p. 56.) Extant political writings of the period repeatedly expressed a dual concern: facilitating the natural right of self-defense and assuring an armed citizenry capable of repelling foreign invaders and quelling tyrannical leaders.
After the Civil War a series of enactments, culminating with the Fourteenth Amendment, acknowledged the correlation between self-defense, citizenship, and freedom. Section 14 of the Freedman's Bureau Act, which the 39th Congress passed over the President's veto, provided: "That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion, . . . the right to . . . have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color or previous condition of slavery. . . ." (Freedman's Bureau Act (July 16, 1866) 14 Stat. 176, italics added; see Halbrook, Second Class Citizenship and the Second Amendment in the District of Columbia (1995) 5 Geo. Mason U. Civ. Rts. L.J. 105, 141-150 (Second Class Citizenship).)
Halbrook concludes the Freedman's Bureau Act, the Civil Rights Act of 1866, and the Fourteenth Amendment leave no doubt that "`the constitutional right to bear arms´ is included among the `laws and proceedings concerning personal liberty, personal security,´ and property, and that `the free enjoyment of such immunities and rights´ is to be protected" (Second Class Citizenship, supra, 5 Geo. Mason U. Civ. Rts. L.J. at p. 150) under the Fourteenth Amendment, which would confer citizenship on all persons born in the United States and imbue them with every right of citizenship, including the right to keep and bear arms. (Ibid.) In more recent times, Congress has continued to recognize that the right of law-abiding citizens to keep and bear arms is guaranteed by the Second and the Fourteenth Amendments. (Pub.L. No. 99-308 (May 19, 1986) 100 Stat. 449.)
The judiciary, too, has consistently acknowledged the interplay between express provisions and implicit protections. In Poe v. Ullman (1960) 367 U.S. 497, the seminal case in the Supreme Court's fundamental rights jurisprudence, Justice Harlan, dissenting, argued the Fourteenth Amendment due process clause protects privacy. He claimed the due process clause covered, but was not exclusively limited to, "the precise terms of the specific guarantees elsewhere provided in the constitution," including "freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures." (Id. at p. 549 (dis. opn. of Harlan, J.).) The court continues to cite Justice Harlan's enumeration as part of the full scope of liberty guaranteed by the Fourteenth Amendment against state infringement. (Planned Parenthood Southeastern PA v. Casey (1992) 505 U.S. 833, 848-849; Roe v. Wade (1973) 410 U.S. 113, 169 (conc. opn. of Stewart, J.); Griswold v. Connecticut (1965) 381 U.S. 479, 499 (conc. opn. of Goldberg, J.).)
II
We got it right two decades ago: "The constitutional bedrock upon which all equal protection analysis rests is composed of the insistence upon a rational relationship between selected legislative ends and the means chosen to further or achieve them." (Hays v. Wood (1979) 25 Cal.3d 772, 786.) The reasoning on which we relied has even greater force now. "The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation." (Id. at pp. 786-787, quoting Railway Express v. New York (1949) 336 U.S. 106, 112-113 (conc. opn. of Jackson, J.); Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection (1972) 86 Harv. L.Rev. 1, 8.) It is true, of course, that even a searching equal protection analysis will not preclude all underinclusive classifications. Rational basis with bite merely requires that when a legislature addresses an area of concern "in less than comprehensive fashion by `striking the evil where it is felt most,´ [citation] its decision as to where to "`strike´" must have a rational basis in light of the legislative objectives." (Hays v. Wood, supra, 25 Cal.3d at p. 791, quoting Werner v. Southern Cal. etc. Newspapers, supra, 35 Cal.2d at p. 132.) The anomaly here, of course, is that those complaining of unequal treatment - gun owners and dealers - are not a powerless minority, but rather one of the most focused and well-financed interest groups in modern American politics.
Politics is the art of the possible under pressure. "Everything that emerges from the legislative forum is tainted by its journey through the lobby. And the demand for perfection must inevitably compromise with the hard facts of political life." (Tussman & tenBroek, The Equal Protection of the Laws (1949) 37 Cal. L. Rev. 341, 350.) The pledge of equality before the law becomes meaningless if courts routinely validate legislative acquiescence to the strongest pressure group; but democratic processes are undermined if courts exhibit zero tolerance for any deviation from the great principle of equal protection. And the toughest and most delicate of questions is how to apply the principles of equal protection in a case like this one which defies - or perhaps redefines - the paradigm. The answer does not depend on "a mechanical application of convenient formulae," but rather requires a "complex and creative act of judgment." (Id. at pp. 350-351.) In this narrow intersection, rational basis analysis and heightened scrutiny may look the same.
Plaintiffs complain that the ban is irrationally underinclusive. Admittedly, the Legislature's findings and declarations seem internally inconsistent. While declaring that it banned the semiautomatic firearms listed in Penal Code section 12276 Penal because each weapon "has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings," the Legislature goes on to declare that it does not intend "to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities." (Pen. Code, § 12275.5 Penal) Conspicuous by its absence is any finding that the listed weapons differ from those not listed with respect to the salient characteristic, namely, their "rate of fire and capacity for firepower." (Ibid.)
On the other hand, plaintiff's claim that the ban is irrational because it will have no effect on violent crime proves too much. The insistence upon a rational relationship between selected legislative ends and the means chosen to further them cannot be so exacting. To declare murder a crime will not prevent murder. Prohibiting the possession of weapons by convicted felons will not stop criminals from obtaining guns. Assessing ever greater penalties has not eliminated the scourge of drug abuse. Means scrutiny assumes the law will have some effect and compares that effect with the means the Legislature has chosen.
Were courts to overturn every legislative action that is likely to be ineffective, few laws would survive. As in other spheres of human endeavor, legislative action is often fated to be more symbolic than real, and the understandable human desire to do something to address the crisis of the moment, not to mention the political necessity of being seen to be doing something, may be the real object of many legislative exercises. (See Kobayashi & Olson, In re 101 California Street: A Legal and Economic Analysis of Strict Liability for the Manufacture and Sale of "assault Weapons" (1997) 8 Stan. L. & Pol'y Rev. 41, 43.) And, to be fair, the most severe problems confronting us - like the current plague of violence - are quite beyond the capacity of government to cure. As Solzhenitsyn observed half a century ago, "the line separating good and evil passes not through states, nor between classes, nor between political parties either - but right through every human heart - and through all human hearts." (Solzhenitsyn, The Gulag Archipelago (1992) p. 615.)
Constitutional provisions divide into two categories: the "historically defined hard core of procedural provisions," including the Bill of Rights, the mechanics of institutional arrangements, political processes, and power allocations (Bickel, The Morality of Consent (1975) p. 29) and the "constitutional generalities" which must make it possible for future battles to be fought and for the Constitution "to transcend and endure beyond the fiercest political differences." (Bickel, The Least Dangerous Branch (1962) p. 105.) While the courts must enforce both, the necessary openendedness of concepts like equal protection means judicial review has important practical limits in a democracy. Where legislative compromise is still possible under conditions which are likely to fairly reconcile competing interests, courts may decline to intervene. The court's duty to restrain the tyranny of the majority must be measured against its obligation to act prudentially and with deference to the political process. Under our regime, a court must oppose arbitrary injustice even when acts of oppression have been duly enacted, and may vouchsafe no answer though contending political forces - momentarily in equipoise - teeter on the edge of tyranny.
Here, the underinclusiveness of the statute is not an attempt to exploit a despised minority. Instead, the Legislature sought to satisfy its need to do something about gun violence without awakening the political enmity of a large and effective constituency. Gun owners may be, as amici curiae argue, "a class of people subjected . . . to vicious stereotypes," but in the political realm a vicious stereotype is a constitutional disadvantage only when it results in impotence.
III
The issue before us may be among the most troubling and intractable of the last 30 years. Predictably, as cultural disintegration accelerates, the level of lethal violence escalates. Even cynics, quick to accuse elected officials of political posturing and empty symbolism, are stunned by the steadily mounting body count. Like the poet, we are forced to "put [our] eyes on a diet" because our "tears are gaining too much weight." (Kaufman, Golden Sardine (1967) "Heavy Water Blues," p. 60.) It is impossible not to grieve for the thousands of young men cut down in their prime; impossible not to mourn toddlers slaughtered in the midst of innocent play; impossible to ignore the grim reality of school children whose final moments echo with screams of terror and the sudden slap of bullets. And worse even than the slaughter of innocents is the death of innocence. All too often, the killers are children, too.
Some antigun advocates candidly admit they welcome "`[shooting] incidents´" and hope "`more heinous ones with more tragic or important victims´" will help move public opinion beyond support for narrow controls to the desired goal of complete disarmament. (Kates, Gun Control: Separating Reality From Symbolism (1994) 20 J. Contemp. L. 353, 358, quoting Ross, Book Review (1992) 98 Am. J. Soc. 661.) Amitai Etzioni, as spokesman for the Communitarian Network, dismisses the gun control measures that have been enacted and those currently under discussion as but "`vanilla-pale´" measures. (Kopel et al., Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibitions (1997) 56 Md. L. Rev. 438, 450, quoting Etzioni et al., The Case for Domestic Disarmament (1992) The Communitarian Network Ibid.) He has elsewhere argued that the right of the people to keep and bear arms (if any such right exists) is outweighed by the right of the public to be safe. (Kopel et al., at p. 445, quoting The Communitarian Network, The Responsive Communitarian Platform: Rights and Responsibilities reprinted in Rights and the Common Good: The Communitarian Perspective (Etzioni edit. 1995) 11, 19.)
I suspect the freedmen of the Reconstruction Era would vehemently disagree. So would the Armenians facing the Ottoman Turks in 1915, the embattled Jews of the Warsaw Ghetto in 1943, and the victims of Pol Pot's killing fields.
The media keep the horrific visions of gun violence ever before our eyes. These acts of individual madness are undeniably tragic and totally unacceptable in a civilized society. But there are other horrific visions - the victims of which number in the millions - perpetrated by governments against unarmed populations.
Conclusion
The framers could have had no conception of the massive scale on which government-sanctioned murder would be committed in the twentieth century, but they had a keen appreciation of the peril of being defenseless. That wariness is reflected in the Constitution. Perhaps they would agree with Thomas Paine's practical observation in his article Thoughts on Defensive War (Paine, Thoughts on Defensive War (July 1775) Pennsylvania Magazine (as of June 13, 2000)): "I am thus far a Quaker, that I would gladly agree with all the world to lay aside the use of arms, and settle matters by negotiation: but unless the whole will, the matter ends, and I take up my musket and thank heaven. . . ."
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Sandy, I've scrolled down and read her concurrence.
Its weird, because it reads more like a dissent to the majority opinion she herself wrote.
In fact, I really can't pick out the part where she concurrs. Can you point it out?
I agree, she's obviously very pro 2nd Amendment, and I'm surprised with the dichotomy evidenced between her majority opinion and the above concurrence.
I though she handled the dilemma quite well.
Now, while Brown (grudgingly) accepts that a rational basis analysis is required, she prefers rational basis with bite, which entails the "means scrutiny" that she talked about (i.e., determining whether a law actually furthers its stated purpose). Apparently this is the approach that her court had been using up until a few years ago. That's what she's talking about in her 2nd paragraph. Here:
In Warden, a majority of this court abandoned our longstanding commitment to "serious and genuine judicial inquiry" into equal protection claims in favor of the highly deferential rational basis formulation articulated by the United States Supreme Court. Under the standard adopted by the Warden majority, "[I]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Where there are 'plausible reasons' for [the classification] 'our inquiry is at an end.'"Brown dissented in that case, preferring not to abandon the higher standard of review.
We're dealing with three different levels of scrutiny here:
1. Strict Scrutiny. This is the one we (and I think Justice Brown) want but can't have.
2. Rational Basis. This is what the majority opinion was based on (following that Warden decision that I just mentioned above).
3. Rational Basis with Bite. This is the type of rational basis analysis that Brown thinks the court should've used, and it's what her concurrence is based on. It's a higher standard of review than #2.
I really can't pick out the part where she concurs. Can you point it out?
The law survives the equal protection challenge even under Brown's "rational basis with bite" analysis. She says
[P]laintiff's claim that the ban is irrational because it will have no effect on violent crime proves too much. The insistence upon a rational relationship between selected legislative ends and the means chosen to further them cannot be so exacting. To declare murder a crime will not prevent murder. Prohibiting the possession of weapons by convicted felons will not stop criminals from obtaining guns. Assessing ever greater penalties has not eliminated the scourge of drug abuse. Means scrutiny assumes the law will have some effect and compares that effect with the means the Legislature has chosen. Were courts to overturn every legislative action that is likely to be ineffective, few laws would survive.Right there's the concurrence.