MILESFORTIS

California Violated the Second Amendment by Disarming People Based on Nullified Convictions
A federal judge ruled that three men who committed nonviolent felonies decades ago are entitled to buy, own, and possess guns.

The state of California employed Kendall Jones as a correctional officer for 29 years and as a firearms and use-of-force trainer for 19 years. But in 2018, when Jones sought to renew the certificate of eligibility required for firearms instructors, the California Department of Justice (DOJ) informed him that he was not allowed to possess guns under state law because of a 1980 Texas conviction for credit card abuse. Jones committed that third-degree felony in Houston when he was 19, and his conviction was set aside after he completed a probation sentence.

According to the DOJ, that did not matter: Because of his youthful offense, which Jones said involved a credit card he had obtained from someone who falsely claimed he was authorized to use it, the longtime peace officer was permanently barred from owning or possessing firearms in California. That application of California law violated the Second Amendment, a federal judge ruled this week in Linton v. Bonta, which also involves two other similarly situated plaintiffs.

“Plaintiffs were convicted of non-violent felonies decades ago when they were in the earliest years of adulthood,” U.S. District Judge James Donato, a Barack Obama appointee, notes in an order granting them summary judgment. “Each conviction was set aside or dismissed by the jurisdiction in which the offense occurred, and the record indicates that all three plaintiffs have been law-abiding citizens in every respect other than the youthful misconduct. Even so, California has acted to permanently deny plaintiffs the right to possess or own firearms solely on the basis of the original convictions.” After considering the state’s cursory defense of those determinations, Donato thought it was clear that California had “violated the Second Amendment rights of the individual plaintiffs.”

Like most jurisdictions, California prohibits people with felony records from buying, owning, receiving, or possessing firearms. That ban encompasses offenses that did not involve weapons or violence, and it applies regardless of how long ago the crime was committed. Federal law imposes a similar disqualification, which applies to people convicted of crimes punishable by more than a year of incarceration (or more than two years for state offenses classified as misdemeanors). But the federal law makes an exception for “any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored.”

California’s policy is different. “The DOJ will permit a person with an out-of-state conviction to acquire or possess a firearm in California only if the conviction was reduced to a misdemeanor, or the person obtained a presidential or governor’s pardon that expressly restores their right to possess firearms,” Donato explains. The requirements for California convictions are similar.

In Jones’ case, the same state that suddenly decided he was not allowed to possess guns employed him as the primary armory officer at the state prison in Solano, where he specialized in “firearms, chemical agents, batons and use of deadly force training,” for nearly two decades. Despite all that experience, the sudden denial of his gun rights put an end to his work as a law enforcement firearms and use-of-force instructor in California. The other two plaintiffs told similar stories of losing their Second Amendment rights based not only on nonviolent offenses that happened long ago but also on convictions that were judicially nullified.

According to the 2018 complaint that Chad Linton filed in the U.S. District Court for the Northern District of California, he was pulled over by state police in 1987, when he was serving in the U.S. Navy at Naval Air Station Whidbey Island in Washington. The complaint concedes that Linton was “traveling at a high rate of speed” on his motorcycle while “intoxicated” and that he initially “accelerated,” thinking “he might be able to outrun” the cops before he “reconsidered that idea, pulled over to the side of the highway, and voluntarily allowed the state trooper to catch up to him.”

Linton was charged with driving under the influence, a misdemeanor, and attempting to evade a police vehicle, a Class C felony. He pleaded guilty to both charges and received a seven-day sentence, time he had already served. In 1988, he “received a certificate of discharge, showing that he successfully completed his probation.” It “included a statement that ‘the defendant’s civil rights lost by operation of law upon conviction [are] HEREBY RESTORED.'”

Linton, who was born and raised in California, returned there in 1988 after he was discharged from the Navy. He successfully purchased several firearms after passing background checks. But when he tried to buy a handgun in 2015, the DOJ told him he was disqualified because of the 1987 felony conviction. In response, he asked the Superior Court of Washington to vacate that conviction, which it did in April 2016. The order “set aside” the conviction and released Linton “from all penalties and disabilities resulting from the offense.” But when he tried to buy a rifle in November 2016, he was rejected.

The same thing happened in March 2018, when Linton tried to buy a revolver for home protection. The following month, Donato notes, “DOJ agents came to Linton’s home and seized several firearms from him that he had legally acquired and owned for years, including an ‘antique, family-heirloom shotgun.'”

Although Linton moved to Nevada in 2020, partly because of these experiences, he still owns a cabin in California. He said he felt “unsafe and unprotected” there “without at least the option of having appropriate firearms available or at hand if needed.” He added that he “would like to be able to possess or handle firearms or ammunition for  recreational purposes, such as target shooting,” while visiting friends and relatives in California.

Paul McKinley Stewart’s disqualifying offense dates back even further than Jones’ and Linton’s. In 1976, when he was 18 and living in Arizona, he “stole some tools from an unlocked truck in a commercial yard.” He was found guilty of first-degree burglary, a felony, and served three years of probation, after which he was told that his conviction had been dismissed.

Stewart moved to California in 1988 and tried to buy firearms in 2014 or 2015 (the record is unclear on the exact date). The DOJ “advised him that he was ‘disqualified’ from purchasing or possessing firearms ‘due to the presence of a prior felony conviction.'” Like Linton, Stewart went back to the court of conviction. In August 2016, Donato notes, the Arizona Superior Court “ordered ‘that the civil rights lost at the time of sentencing are now restored,’ ‘set aside [the] judgment of guilt,’ ordered the ‘dismissal of the Information/Indictment,’ and expressly held that the restored rights ‘shall include the right to possess weapons.'” The DOJ nevertheless blocked a gun purchase that Stewart attempted in February 2018, citing the 1976 conviction that officially no longer existed.

Defending these denials in federal court, the state argued that the plaintiffs were not part of “the people” whose “right to keep and bear arms” is guaranteed by the Second Amendment because they were not “law-abiding, responsible citizens.” In California’s view, Donato writes, “a single felony conviction permanently disqualifies an individual from being a ‘law-abiding, responsible citizen’ within the ambit of the Second Amendment.” He sees “two flaws” that “vitiate this contention.”

First, Donato says, “undisputed facts” establish that all three plaintiffs are “fairly described as law-abiding citizens.” Judging from the fact that “California entrusted Jones with the authority of a sworn peace officer, and with the special role of training other officers in the use of force,” that was the state’s view of him until 2018, when he was peremptorily excluded from “the people.” And as with Jones, there is no indication that the other two plaintiffs have been anything other than “law-abiding” since their youthful offenses. “Linton is a veteran of the United States Navy with a clean criminal record for the past 37 years,” Donato notes. “Stewart has had a clean criminal record for the past 48 years.”

Second, Donato says, California failed to identify any “case law supporting its position.” In the landmark Second Amendment case District of Columbia v. Heller, he notes, the Supreme Court “determined that ‘the people,’ as used throughout the Constitution, ‘unambiguously refers to all members of the political community, not an unspecified subset.'” That holding, he says, creates a “strong presumption” that California failed to rebut.

Donato notes that the U.S. Court of Appeals for the 3rd Circuit rejected California’s argument in no uncertain terms last year, when it restored the Second Amendment rights of Bryan Range, a Pennsylvania man who had been convicted of misdemeanor food stamp fraud. “Heller and its progeny lead us to conclude that Bryan Range remains among ‘the people’ despite his 1995 false statement conviction,” the 3rd Circuit said. “The Supreme Court’s references to ‘law-abiding, responsible citizens’ do not mean that every American who gets a traffic ticket is no longer among ‘the people’ protected by the Second Amendment.”

Since Jones, Linton, and Stewart are part of “the people,” California had the burden of showing that disarming them was “consistent with this Nation’s historical tradition of firearm regulation”—the test that the Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen. “California did not come close to meeting its burden,” Donato writes. It did little more than assert that Americans have Second Amendment rights only if they are “virtuous,” a criterion that is highly contested and in any case would seem to be satisfied by the plaintiffs’ long histories as productive and law-abiding citizens.

“California otherwise presented nothing in the way of historical evidence in support of the conduct challenged here,” Donato says. “It did not identify even one ‘representative analogue’ that could be said to come close to speaking to firearms regulations for individuals in circumstances akin to plaintiffs’. That will not do under Bruen.”

Donato rejected “California’s suggestion that it might have tried harder if the Court had asked.” Under Bruen, “the government bears the burden of proving the element of a national historical tradition,” he writes. “California had every opportunity to present any historical evidence it believed would carry its burden. It chose not to do so.”

Donato was dismayed by the state’s attitude. “The Court is not a helicopter parent,” he writes. “It is manifestly not the Court’s job to poke and prod litigants to live up to their burdens of proof.”

The policy that Jones, Linton, and Stewart challenged seems inconsistent with California’s criminal justice reforms, such as marijuana legalization and the reclassification of many felonies as misdemeanors. It is also inconsistent with the way California treats voting rights, which are automatically restored upon sentence completion. Gun rights in California, by contrast, are easy to lose and hard to recover, even when they have been restored by courts in other states. That disparity seems to reflect the California political establishment’s reflexive hostility to the Second Amendment.

“This case exposes the hypocrisy of California’s treatment of those convicted of non-violent crimes,” says Cody J. Wisniewski, an attorney with the Firearms Policy Coalition, one of several gun rights groups that joined the lawsuit. “While California claims to be tolerant of those that have made mistakes in the past, that tolerance ends when it comes to those individuals [who want] to exercise their right to keep and bear arms. Now, the state has no choice but to recognize the rights of peaceable people.”