State Attorney General Suggests Considering Applicants’ Ideological Viewpoints in Denying Carry Licenses

EUGENE VOLOKH, Reason

The California AG endorses denying licenses based on the applicant’s “hatred” or “racism.”

Friday, the day after the New York State Rifle & Pistol Ass’n v. Bruen Supreme Court decision, the California Attorney General wrote a letter to California law enforcement and government lawyers, expressing “the Attorney General’s view that the Court’s decision renders California’s ‘good cause’ standard to secure a permit to carry a concealed weapon in most public places unconstitutional.” California thus seems ready to promptly shift to a fundamentally shall-issue regime, in which pretty much all law-abiding adults can get licenses to carry concealed weapons. Nor will this require legislative action, I think; California already has a may-issue regime in place for licensing, so—as the AG’s office notes—licensing authorities (“sheriffs and chiefs of police”) can just use that regime but essentially without applying a good-cause requirement.

But the AG’s office concludes that the existing statutory requirement “that a public-carry license applicant provide proof of ‘good moral character’ remains constitutional,” and that this requirement isn’t limited to disqualifying felons, certain violent misdemeanants, and the like. And in particular the AG’s office suggests that people who hold certain ideological viewpoints should be disqualified:

Existing public-carry policies of local law enforcement agencies across the state provide helpful examples of how to apply the “good moral character” requirement. The Sacramento County Sheriff’s Office, for example, currently identifies several potential reasons why a public-carry license may be denied (or revoked), which include “[a]ny arrest in the last 5 years, regardless of the disposition” or “[a]ny conviction in the last 7 years.” It is reasonable to consider such factors in evaluating an applicant’s proof of the requisite moral character to safely carry firearms in public. See, e.g., Bruen (referencing “law-abiding citizens”).

Other jurisdictions list the personal characteristics one reasonably expects of candidates for a public-carry license who do not pose a danger to themselves or others. The Riverside County Sheriff’s Department’s policy, for example, currently provides as follows: “Legal judgments of good moral character can include consideration of honesty, trustworthiness, diligence, reliability, respect for the law, integrity, candor, discretion, observance of fiduciary duty, respect for the rights of others, absence of hatred and racism, fiscal stability, profession-specific criteria such as pledging to honor the constitution and uphold the law, and the absence of criminal conviction.” [Emphasis added.]

As to how law enforcement is to figure out such matters, the AG’s office has some advice: Among other things,

As a starting point for purposes of investigating an applicant’s moral character, many issuing authorities require personal references and/or reference letters. Investigators may personally interview applicants and use the opportunity to gain further insight into the applicant’s character. And they may search publicly-available information, including social media accounts, in assessing the applicant’s character. [Emphasis added.]

This strikes me as clearly unconstitutional under the First Amendment, even apart from the Second Amendment. The government can’t restrict ordinary citizens’ actions—much less their constitutionally protected actions—based on the viewpoints that they express. People can’t be denied benefits because they

1. endorse “hatred” (a potentially extraordinarily broad and vague term) and “racism” (a term that, especially in much recent usage, is likewise highly broad and vague),
2. because they endorse certain extremist views of Islam (or any other religion),
3. because they endorse violent Communist revolution,
4. are strongly anti-police,
5. anti-government,
6. anti-abortion,
7. pro-abortion-rights,
8. environmentalist, or
9. pro-animal-rights.

Nor does it matter that some extreme adherents of the relevant ideology engage in violence (something that’s true for many ideologies), or that there are strands in the ideology that overtly support violence under some circumstances (again, something that’s true for many ideologies). Just as the Free Exercise Clause would bar the government from engaging in religious discrimination in deciding which citizens can do certain things, so the Free Speech Clause bars the government from engaging in viewpoint discrimination. (The rules related to religious discrimination and viewpoint discrimination may be different when the government is acting as employer, but here we’re talking about the government controlling the behavior of ordinary citizens.)

And of course it’s easy to see how, if California were allowed to deny concealed carry licenses to whoever California law enforcement officials believe is “racis[t]” or endorses “hatred,” then some other state could deny such licenses—or lots of other kinds of licenses—to whoever its law enforcement officials believe is anti-government or anti-police or a Muslim extremist or what have you. Indeed, now that some states can ban abortion, presumably strong support of abortion rights might be seen in many states as lack of “good character” (since in those states’ views, it would be support for mass murder). The First Amendment doesn’t allow this.

There are of course other problems here as well:

[1.] Mere arrest history, without proof that the arrestee actually engaged in illegal conduct, strikes me as inadequate to justify denying Second Amendment rights.

[2.] Lack of “fiscal stability”—which may simply mean being very poor or insolvent—can’t be such a basis, either.

[3.] More broadly, even behaviors that we do think show bad moral character, such as minor crimes (not felonies) or torts related to dishonesty or vandalism or the like, don’t strike me as sufficient to strip people of their constitutional rights. I appreciate the AG’s argument that:

Bruen recognizes that States may ensure that those carrying firearms in their jurisdiction are “‘law-abiding, responsible citizens.’” See also id. (Kavanaugh, J., concurring) (States may “require a license applicant to undergo a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements”). Accordingly, in assessing whether an applicant has established “good moral character,” issuing authorities should recognize that Bruen does not eliminate the duty or authority of local officials to protect the communities that they know best by ensuring that licenses are only issued to individuals who—by virtue of their character and temperament—can be trusted to abide by the law and otherwise ensure the safety of themselves and others.

But while the Court made clear that this allows prohibitions on gun possession or carrying by felons or the mentally ill, and while it may also extend to illegal violence short of a felony, I can’t see it as going anywhere near as far as the AG’s office suggests.

[4.] And the exercise of an individual constitutional right generally can’t be conditioned on the rightsholder’s submitting “personal references.”

Again, I think that on balance, even with these problems, the California licensing regime is indeed switching to basically shall-issue. In practice, I doubt that the “good moral character” requirement would be used to disqualify many people, other than those who fail the federal background checks.

But it seems clear to me that the viewpoint-based criteria that the AG’s office is recommending would violate both the First and Second Amendments, and some of the other criteria would violate the Second.

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