Q: Can I sue California for discrimination and unconstitutional gun laws?

The state gun laws do nothing for the law abiding citizen and make it easier on criminals to attack citizens. I feel discriminated against as a law abiding citizen. The people responsible for making every gun law don't have enough knowledge and experience with firearms. I've recently just found out that CA has "red flag laws". That should be illegal and it violates the second amendment.

1 Lawyer Answer
Joseph Franklin Klatt
Joseph Franklin Klatt
  • Civil Rights Lawyer
  • La Jolla, CA
  • Licensed in California

A: You can challenge a law as being unconstitutional if you have been concretely and particularly injured by the law. The interpretation of the Second Amendment is in question right now, and there is a great deal of litigation involving the interpretation and extent of the Amendment.

For a simple example, the 2nd Amendment says, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." People argue about the prefatory clause and whether a /regulated/ militia is a precondition to the right to bear arms. Some people challenge the definition of what "arms" are based on the types of arms that were available at the time the Amendment was enacted, as opposed to the weapons we have now. (George Washington never had an AR-15.) The analysis is nothing close to clear. (The late Antonin Scalia, a 2nd Amendment proponent, noted that the early colonies had laws against 'menace', which was brandishing a weapon in public, and those laws were within the conception of the 2nd Amendment). Some originalists or State's rights advocates will point out that the 2nd Amendment (and the entire Bill of Rights) applies to Federal power, not state power, and it was only the liberal Courts between the 1930s and 1970s that applied the limitations on Federal power to the States under the 14th Amendment. Those same advocates can and have argued that the Bill of Rights should not be reflexively applied to the States when they were originally intended to be a limitation only on Federal power, and what power is with the Federal government is retained by the States.

The law is in flux. Lawmakers are trying to balance badly worded sentences from the 1700s with a modern reality that doesn't quite fit them. If you can contribute to that discussion from your own experience and knowledge that will be more effective than any litigation sortee. The constitutional litigation on these matters is already in full swing, and where it will land is uncertain. If you want to join it, I would suggest you look up the constitutional advocacy groups that are pursing this litigation, and find one that is consistent with your views.

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