LOOSE CANNON: Report In Opposition To The Confirmation Of Janice Rogers Brown To The United States Court Of Appeals For The DC Circuit

Gun Control

Brown’s opinions in the area of gun control exhibit a certain hostility to government efforts to regulate gun ownership and sales. In most of the cases we reviewed in this area, Brown came down on the side of gun owners or sellers and in one case she quite openly endorsed the legal arguments put forth by the National Rifle Association (NRA). In one case in which she upheld a gun control law, Brown nevertheless strongly argued that a fundamental, personal right to bear arms should be recognized.

Harrott v. County of Kings, 25 P.3d 649 (Cal. 2001).

J.W. Harrott, an attorney, received a gun collection in payment for legal work he performed for a client. The gun collection was in the possession of the Kings County Sheriff’s Department, which refused to release one of the guns to Harrott because it believed that the gun was an assault weapon which was prohibited by the state’s Assault Weapons Control Act (AWCA). Harrott sued, asking the trial court to force the sheriff’s office to deliver the gun. The court refused, finding that the gun was an “AK series” weapon proscribed by the AWCA. On appeal to the California Court of Appeal, the trial court was reversed because the appeals court found that the weapon was not specifically named on the Attorney General’s list of proscribed weapons. The Sheriff’s Department then appealed to the California Supreme Court.

In an opinion by Brown, a majority of the supreme court agreed with the court of appeal. Brown’s opinion, which several times cites with approval the amicus curiae brief filed by the National Rifle Association, argued that she was only protecting the power of the Attorney General to list the weapons in the “AK series” that are banned under the AWCA. The dissent however, saw it differently:

By today’s decision, the majority eviscerates a key provision of California’s Roberti-Roos Assault Weapons Control Act of 1989 (AWCA) that is directed at a type of assault weapon commonly used by drug dealers and gang members, the “AK series” semiautomatic rifle. In the face of the clearest possible statutory language – defining “assault weapon” for purposes of the AWCA to encompass “[a]ll AK series [rifles], including but not limited to, the models identified as follows...” – the majority inexplicably concludes that this provision designates as assault weapons only the particular AK model rifles that are identified specifically by name in the statute, and does not permit the police, other law enforcement authorities, or the courts to treat as assault weapons other AK series semiautomatic rifles that are only minor variations of the listed AK models unless and until the particular AK series rifle has been explicitly included by name and model on a list promulgated by the Attorney General. ... The Legislature, notwithstanding these circumstances, concluded that it was essential – in view of the popularity of AK series rifles among criminals and the relatively inexpensive nature of these weapons – to ensure that all AK series rifles be treated as assault weapons. By refusing to heed the clear statutory language classifying all AK series rifles as assault weapons (whether specifically identified by name and model, or not), the majority creates a loophole in California’s assault weapons control legislation that the Legislature plainly intended to eliminate.
25 P.3d 660-61 (citations omitted, emphasis in original).

The dissent also criticized Brown’s opinion for embracing the “clearly specious argument” of the NRA that its favored view was necessary to prevent the same weapon from being “treated differently” in different cases. As the dissent explained, whether or not the law was limited to weapons listed by the Attorney General, varying facts and circumstances would mean that “different triers of fact may come to different conclusions as to whether an individual firearm falls within the statute.” Id. at 669.

At least one newspaper story suggested that the results of Brown’s opinion could be to dramatically reduce the effectiveness of California’s assault weapon ban. In a story entitled “Supreme Court Opinion Cripples Assault Weapons Ban,” Associated Press writer David Kravets wrote:

The California Supreme Court has ruled that judges cannot declare firearms illegal under the state's assault-weapons ban law in a decision the dissenting chief justice said created a "loophole" in the 1989 act….The immediate fallout of Thursday's decision is that an untold number of copycat weapons to the AK series are now legal in California.
“Supreme Court Opinion Cripples Assault Weapons Ban”, David Kravets, Associated Press State and Local Wire, 6/29/01.

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Kasler v. Lockyer, 2 P.3d 581 (Cal. 2000), cert. denied, 69 U.S.L.W. 3549 (2001).

The year before Harrott was decided, Brown wrote the majority opinion in Kasler rejecting a constitutional challenge to the AWCA on equal protection, due process, and separation of powers grounds. She also wrote a concurring opinion in the very same case, however, that appeared to disagree with parts of her majority opinion and raised troubling questions about her views on gun control and on constitutional adjudication. Brown’s majority opinion stated that “the AWCA does not burden a fundamental right under either the federal or the state Constitutions.” 2 P.3d at 586. But her concurring opinion criticized the fact that “the right to keep and bear arms – a right expressly guaranteed by the Bill of Rights – is deemed less fundamental” than the right of privacy. Id. at 602 .She argued that “the right to preserve one’s life” (referring to the use of firearms) “is at least as fundamental as the right to preserve one’s privacy,” based on her analysis of common law and other history. Id. Her strong judicial advocacy of this claimed personal, fundamental right to bear arms raises serious questions.

Brown’s majority opinion also stated that since the AWCA did not infringe on a recognized constitutional right, the “rational relationship” test applied, under which a law should be upheld if there is any rational basis for it. Id. at 586. Brown’s majority opinion specifically stated that an earlier state supreme court opinion, Warden v. State Bar of California, 982 P.2d 154 (1999), had “adhered to the rational relationship” test. 2 P.3d at 586. Yet her concurring opinion in the same case charged that the majority in Warden had improperly “abandoned our long-standing commitment to ‘serious and genuine judicial inquiry’ into equal protection claims in favor of the rational basis” test. Id. at 601.

She went on to severely criticize long-standing Supreme Court precedent in this area, claiming that the “dichotomy between the United States Supreme Court’s laissez-faire treatment of social and economic rights and its hypervigilance” where fundamental rights are at stake “is highly suspect, incoherent, and constitutionally invalid.” Id. Brown was thus challenging a fundamental Supreme Court principle of constitutional adjudication, articulated 65 years ago in United States v. Carolene Products Co.,, 304 U.S. 144, 152-53 n.4 (1938). That case marked the end of the Court’s Lochner-era invalidation of significant minimum wage and other social and economic legislation, while preserving the courts’ authority to strictly scrutinize legislation discriminating on the basis of race or burdening fundamental rights. See E. Chemerinky, Constitutional Law (1997) at 489-91. As the California Supreme Court majority noted in Warden, this principle has been repeated and explained “on many occasions” by the U.S. Supreme Court. 982 P.2d at 164 (rejecting equal protection challenge to California bar rule concerning mandatory continuing legal education despite dissents by Brown and one other justice). Brown’s severe criticism of this basic principle in her opinion in Kasler, which she has listed as one of her ten most significant opinions, raises further serious questions about her judicial philosophy.

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Great Western Shows, Inc. v. County of Los Angeles, 44 P.3d 120 (Cal. 2002) and Nordyke v. King, 44 P.3d 133 (Cal. 2002).

In these two cases, the U.S. Court of Appeals for the Ninth Circuit asked the California Supreme Court to clarify several issues with respect to whether or not state gun control laws preempted local government efforts to prohibit gun shows on property owned by the local government. In both cases a majority of the court ruled that the local county ordinances were not preempted by state law at least with respect to gun show promoters and exhibitors. Brown dissented from both decisions on somewhat different grounds. In each case, however, her dissent could have had the effect of negating local government efforts to curtail gun shows.

An article in the Los Angeles Times about the cases helps to explain why the local governments had enacted the local ordinances. The article quotes Los Angeles County Supervisor Zev Yaroslavsky, author of the [L.A.] county’s gun laws as saying: “the ruling was ‘a very big deal’ for the county because gun shows on the fairgrounds were a ‘veritable bazaar for all kinds of weapons, legal and illegal.’” The article continued to quote Yaroslavsky as saying “‘This is the venue of choice for people who want to traffic in guns, who don’t want to be held accountable, who don’t want to be known. ... ‘This is the great beyond where gun traffickers go to buy weapons they don’t want to be traced or enter into deals for weapons that are illegal in the United States.’” “Justices OK Local Ban on Gun Shows,” Maura Dolan, Los Angeles Times, 4/23/02, California Metro, Part 2, p. 1

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