The Second Amendment and California Sentence Enhancements

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.