The Second Amendment of the United States Constitution guarantees people the right to keep and bear arms, ensuring that American citizens retain the right to equip themselves for self defense. There is an assumption of reasonability that comes attached to firearm possession, which each state interprets differently. These interpretations form the basis for each state’s firearm regulations.
California in particular enforces some of the most stringent firearm restrictions in the nation. There are hundreds of distinct code sections that regulate types of firearms and ammunition that citizens of the state should and should not be allowed to possess. A general overview of these laws can help grant some insight into how California handles firearm violations.
Who has the right to own a firearm?
For most citizens in California, it is not illegal to purchase or keep a firearm without a license. You man keep such a firearm in your home or place of business, and you may legally carry a gun from place to place in a locked container. In order to purchase a handgun, you must have been awarded a valid handgun safety certificate.
While the Second Amendment guarantees the right to keep and bear arms, California has imposed a few limitations on which citizens are legally allowed to carry handguns. People who California deems unfit to acquire or possess a firearm in the state include:
- Anyone convicted of a felony of any kind, in any jurisdiction
- Anyone addicted to narcotics
- Anyone who has been convicted twice or more for violations of Penal Code 417, which forbids brandishing a firearm
- People convicted of select misdemeanors
- Anyone suffering from mental illness
- All minors
These prohibited groups are forbidden from owning firearms or ammunition. In addition, federal law prohibits the possession of a firearm for additional groups of people, such as:
- Anyone under indictment in any court for a crime serious enough to warrant punishment by imprisonment of more than one year
- Any fugitives from justice
- Anyone under a court order for stalking crimes
- Anyone dishonorably discharged from the military
- Anyone who has renounced US citizenship
- Illegal aliens
If anyone in any of these groups is found to own, possess, purchase or receive a firearm under Penal Code 29800, this may lead to the revocation of that person’s right to carry for a minimum of 10 years, or depending on the circumstances, for life. In the cases of juveniles, gun rights may be restricted until the person turns 30.
Concealed Weapons Permit
California Penal Codes 26150 and 26155 allow the state to issue permits to carry “a pistol, revolver, or other firearm capable of being concealed upon your person.” Local authorities, such as the sheriff or chief of police, are responsible for issuing such permits, and require a showing that:
- A person is a resident of the city where the permit is issued
- Good cause exists for the license
- The person requesting the permit has completed necessary firearms training courses
- The person requesting the permit is of good moral character.
The issuance of such a permit allows the person to carry of a concealed, loaded weapon, so long as the terms and conditions outlined the permit are kept.
If a person does not have such a permit, carrying a concealed weapon or keeping one in their vehicle is considered illegal under Penal Code 25400. Unless the firearm being transported is unloaded and carried in a locked container, or being carried locked in a vehicle’s trunk, and the person is knowingly in possession of the firearm, then carrying a concealed firearm is a misdemeanor punishable by a maximum fine of $1000 and/or up to one year in county jail. This crime may be elevated to a felony if:
- A prior felony conviction or firearm offense exists
- The firearm in question was stolen and the person knew or had reasonable cause to believe it
- The person charged is actively involved in a street gang
- The firearm is not the person’s lawful possession
- Penal Code 29800, California’s felon with a firearm law, prohibits the person from possessing a firearm
- Penal Code 29900 prohibits the person from possessing a firearm for committing or attempting to commit a violent offense, including (but not limited to) Murder, Robbery, Carjacking, Kidnapping, Rape and/or other sexual offenses.
A felony conviction for carrying a concealed weapon can result in two to three years in California state penitentiary and a maximum fine of $10000.
Carrying a Loaded Firearm in Public
California Penal Code 25850 prohibits the carrying of a loaded firearm in public places, as well as in a vehicle.
For the purposes of this law, a firearm that has an unexpended cartridge or shell attached to it in any way, such as in the firing chamber or in a magazine, is considered loaded. California has no open-carry law, making any such possession of a loaded firearm without a concealed carry permit illegal. Prosecution of open carry violations does, however, require that the person charged is aware that the firearm is in their possession.
Punishment for loaded firearm violations under Penal Code 25850 is the same as violations of the concealed carry law under Penal Code 25400.
Ammunition and Firearm Accessory Violations
Certain ammunition types and firearm accessories have their possession and use restricted by the state of California.
Penal Code 30315 prohibits the possession of armor piercing ammunition, with punishment of up to one year in county jail or up to three years in California state prison, and/or a maximum fine of $5000
Penal Code 33410 prohibits the possession of a silencer. Such possession is a felony, punishable by up to three years in state prison and/or a maximum fine of $10000
Penal Code 22610 prohibits the possession of stun guns by certain groups, including those convicted of a felony or any crime involving assault or misuse of a stun gun, anyone addicted to narcotics, and any minors (except those over 16 who have written parental consent). Misdemeanor violations of this law are punishable by up to a year in county jail and/or a maximum fine of $1000
Penal Code 417.25 prohibits the use of laser scopes or laser pointers in a threatening manner, with the specific intent to cause a reasonable person fear of bodily harm, except in cases of self defense. The law defines a laser scope as a portable batter-powered device capable of being attached to a firearm and capable of projecting laser light on objects at a distance; though for the purposes of this law the laser scope does not need to be attached to a firearm. It also defines a laser pointer as any hand held laser beam device or laser demonstration product that emits a single laser that is visible to the human eye. Violations of this law man result in a sentence of up to 30 days in county jail.
Penal Code 417.26 prohibits pointing any laser pointer or laser scope at a peace officer with the specific intent to cause the officer apprehension or fear of harm, and if the person is aware or should be aware that the target is a peace officer. The first violation is punishable by up to six months in county jail, while subsequent violations are punishable by up to one year.
Fourth Amendment Search & Seizure
The Fourth Amendment protects individuals against unreasonable searches and seizures. These protections only apply to government action. In order for a person to have Fourth Amendment rights, the person must have a reasonable expectation of privacy in the area that is searched. Generally, people have a reasonable expectation of privacy in premises that they own or have a right to possess and in their homes. Generally there is no expectation of privacy in things held out to the public.
For a search to be considered reasonable, the police must have a valid warrant. A valid warrant is one that is issued by a neutral and detached magistrate, based on probable cause and describes the place to be search or items to be seized. One of the main purposes of the warrant requirements is “to protect privacy interests by ensuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.” Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 621-22 (1989).
To learn more about Fourth Amendment Search & Seizure click here.
Firearm Offenses Defense Lawyer in San Diego
The laws regarding firearm possession in the state of California can be very complex, which makes the expertise of an experienced defense attorney invaluable. If you have been charged with a crime related to firearm possession, you need to contact an attorney as soon as possible, to help you sort through the extensive regulations and make sense of your case. Being informed is key to defending yourself against firearm charges, and the best source of information and insight is an experienced defense attorney. Contact our offices for free consultation.