Overview: this lengthy post discusses California
sentencing enhancements and whether they pass muster under the Second
Amendment.
Under section 12022(a) of the California Penal
Code, a defendant who is convicted of a felony will receive a one-year
enhancement on his or her sentence if that defendant was armed with a firearm
in the commission of that felony unless being armed is an element of the
felony. It appears that being “armed”
covers a broad category of situations, with one court interpreting section
12022(c)’s phrase “personally armed” to cover individuals who have the firearm
on his or her person or “available for offensive or defensive use.” People
v. Mendival, 3 Cal. Rptr. 2d 566, 574 (1992). This enhancement is different from other
enhancements like section 12022.5 which calls for a larger sentence enhancement
when the defendant personally uses the firearm.
In most jurisdictions, this sort of law would
not raise Second Amendment concerns.
Many states have adopted an intermediate scrutiny approach to laws that
restrict the use and possession of firearms.
California seems to be one of these states. See
People v. Ellison, 128 Cal. Rptr.
245, 249-250 (2011). Under the intermediate
scrutiny approach, a law may infringe on the Second Amendment right to keep and
bear arms if the law serves an important governmental interest and is
substantially related to achieving that interest.
Regulations that affect firearm possession in the
home may be more problematic – at least from the perspective of District of Columbia v. Heller (554 U.S.
570). In Heller, the Court noted that laws that ban firearms that are kept
in the home for purposes of self-defense will fail constitutional muster no
matter what level of scrutiny courts apply. (628-29). It is not yet clear how far courts are
willing to take this strong language. I
discuss this provision and how it relates to student housing here, but in
general there has been a lack of emphasis on this part of Heller.
Heller
and its language on the home is relevant to the California gun possession
enhancement, and while it may not render the law unconstitutional, it certainly
seems to complicate some instances of its application -- instances that I explore in depth after the break.
Let’s say that two separate defendants commit
two separate felonies in their homes.
One of these defendants, Alan, is convicted of possessing a large
quantity of cocaine. The second
defendant, Bob, is convicted of assaulting his wife (without personally using a
firearm). Both of these defendants have
guns in their homes that they keep in an accessible location for self-defense
purposes – assume for the sake of this example that this is enough to show “possession”
for purposes of the enhancement.
Both of these defendants would have their
punishments enhanced by a year because they had firearms in their homes. Both defendants seem to have halfway
plausible arguments that the enhancement infringes their constitutional right
to possess firearms in the home for self-defense: they are being punished more
harshly for simply exercising their constitutional right.
I qualify the defendants’ arguments as “halfway
decent” because there are solid arguments that the State can make in favor of
the enhancement. From a Heller perspective, the State can argue
that the enhanced punishment will not affect the defendants unless they are
convicted, meaning that the sentence enhancement is analogous to restrictions
on firearm possession by felons, a practice that Heller indicates is constitutionally permissible. (626-27).
The enhancement’s dependence on a conviction indicates that the
enhancement only really kicks in after felon status is established which
supports this interpretation.
The State may also argue that the enhancement
statute is tailored narrowly enough to meet intermediate scrutiny. People will not be affected by this statute
unless they engage in criminal activity, and if the only rights infringed are
those of people who commit felonies in the home, this would seem to be a narrow
enough statute to survive intermediate scrutiny.
This argument runs into some trouble in light of
the apparent purpose of the firearm enhancement statute. The enhancement seems to have been put in
place to discourage the use of firearms during the commission of crimes, and
thereby avoid the greater harm to victims that may occur if firearms are
involved. In light of this purpose,
there seem to be problems with the claim that the law is substantially related
to the purpose. The possession
enhancement does not exist in a vacuum: there are enhancements in sections 12022.5
and 12022.53 that penalize the personal use of a firearm in the commission of a
crime. These enhancements seem to be
more closely related to the interest of preventing harm to victims since they
only apply to situations where a firearm is used (including its firing or
display) in the commission of the crime, rather than being incidentally
present.
Additionally, enhancements like 12022.53 apply
to specific crimes that tend to be more violent, so they avoid the overbroad
application of 12022 to felons like Alan the drug possessor. If the goal of the legislature is to prevent
harm to victims, it would make sense for the sentencing enhancement to apply to
cases like Bob, where there certainly are victims, as opposed to Alan’s drug
crime, where it is not clear how a firearm exacerbates the situation.
There are other arguments to be made and a full
discussion of this issue would need to take place in a more formal context (law
reviews are a good start, but in the end it’s got to be the courts). The clearest point I can derive from my
discussion here, however, is that California firearm enhancements illustrate
the versatility of the possible textual interpretations of Heller. The strongest
arguments for and against the constitutionality of these enhancements is that
different provisions of Heller seem
to point in opposite directions. This is
not the only place where this happens (don’t even get me started on student
housing) but it goes to show how interesting and malleable of an opinion Heller can be.
Have you heard of any new legislations to change some of these harsh enhancements in Calif?
ReplyDeleteI am not aware of any legislation that would affect these particular enhancements.
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