In March, the Supreme Court depublished the Fifth District Court of Appeal’s opinion in People v. Velez that had interpreted the U.S. Supreme Court’s Second Amendment decision in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 597 U.S. _ [142 S.Ct. 2111] as making “clearly unconstitutional” one part of California’s statutory scheme for issuing concealed-carry firearms. We speculated the depublication might have been an instance of throwing shade at the U.S. Supreme Court.
At this week’s conference, however, the court denied review but did not depublish the opinion in In re T.F.-G., where the Sixth District similarly said that “California’s ‘good cause’ licensing requirement is undisputedly unconstitutional under Bruen.” And the Supreme Court had grounds to depublish T.F.-G.
The Sixth District didn’t need to comment on the validity of the “good cause” licensing requirement, because, as in Velez, the finding of a flaw in that part of the statute didn’t help the defendant. (The appellate court found it dispositive that “California law continues to authorize the denial of license applications on statutory grounds not implicated by Bruen.”) Thus, instead of branding that requirement as constitutionally infirm, it could have simply said the defendant loses whether or not the requirement is valid.
The Sixth District also didn’t need to reach the defendant’s argument at all since the defendant hadn’t raised a constitutional challenge below. The appellate court nonetheless went ahead anyway “because it presents a pure question of law subject to de novo review.”
In fact, one justice separately concurred saying the court shouldn’t have decided the issue. He noted the Bruen court had analyzed whether a “restriction is ‘consistent with the Nation’s historical tradition of firearm regulation’ ” and found it significant that “T.F.-G. has not offered any historical materials or analysis in support of his Second Amendment challenge.” The dissenter concluded, “In addition to placing the government at an unfair disadvantage on appeal, and depriving this court of the trial court’s views, the failure to supply historical materials or analysis makes it difficult for this court to engage in the historical determination that the Supreme Court now appears to require.”