chetth
Member
previous decision (continued)
Implied Preemption
If we were to find in the San Francisco Handgun Ordinance no
"licensing" requirement within the express wording of Government
Code section 53071 and Penal Code section 12026, we would still
reach the conclusion that state law preempts the San Francisco
ordinance under the theory of implied preemption. It is at least
arguable that the state Legislature's adoption of numerous gun
regulations has not impliedly preempted all areas of gun
regulation. (See Galvan, supra, 70 Cal.2d at p. 860, 76 Cal.Rptr.
642, 452 P.2d 930.) However, we infer from Penal Code section 12026
that the Legislature intended to occupy the field of residential
handgun possession to the exclusion of local governmental entities.
A restriction on requiring permits and licenses necessarily implies
that possession is lawful without a permit or license. It strains
reason to suggest that the state Legislature would prohibit
licenses and permits but allow a ban on possession.
Let a preemptory writ of mandate issue directing respondents
to refrain from enforcing the San Francisco Handgun Ordinance and
to provide suitable notice to the residents of San Francisco that
the ordinance will not be enforced. Petitioners' requests for
attorney's fees are denied.
FEINBERG and BARRY-DEAL, J., concur.
FOOTNOTES
1. We note that Commons and Jenkins were decided before adoption of
Government Code section 53071 and that in Olsen, the court did not
state that the area of "possession" was not preempted, only that
the area of "use" was not expressly preempted. Thus none of the
three courts considered the relationship between a ban on
possession and the licensing requirement it implicitly creates if
it exempts licensed persons from the ban.
2. The City and County cites Gluck v. County of Los Angeles (1979)
93 Cal.App.3d 121, 132. 155 Cal.Rptr. 435, for the principle that
we should indulge a presumption in favor of the validity of the
local ordinance. However, as we read Gluck, it applies to implied
preemption, not to express preemption or conflict between state and
local law. Even were we to indulge a presumption in favor of the
local ordinance, we would find it expressly preempted, in direct
conflict with state law, and impliedly preempted.
Implied Preemption
If we were to find in the San Francisco Handgun Ordinance no
"licensing" requirement within the express wording of Government
Code section 53071 and Penal Code section 12026, we would still
reach the conclusion that state law preempts the San Francisco
ordinance under the theory of implied preemption. It is at least
arguable that the state Legislature's adoption of numerous gun
regulations has not impliedly preempted all areas of gun
regulation. (See Galvan, supra, 70 Cal.2d at p. 860, 76 Cal.Rptr.
642, 452 P.2d 930.) However, we infer from Penal Code section 12026
that the Legislature intended to occupy the field of residential
handgun possession to the exclusion of local governmental entities.
A restriction on requiring permits and licenses necessarily implies
that possession is lawful without a permit or license. It strains
reason to suggest that the state Legislature would prohibit
licenses and permits but allow a ban on possession.
Let a preemptory writ of mandate issue directing respondents
to refrain from enforcing the San Francisco Handgun Ordinance and
to provide suitable notice to the residents of San Francisco that
the ordinance will not be enforced. Petitioners' requests for
attorney's fees are denied.
FEINBERG and BARRY-DEAL, J., concur.
FOOTNOTES
1. We note that Commons and Jenkins were decided before adoption of
Government Code section 53071 and that in Olsen, the court did not
state that the area of "possession" was not preempted, only that
the area of "use" was not expressly preempted. Thus none of the
three courts considered the relationship between a ban on
possession and the licensing requirement it implicitly creates if
it exempts licensed persons from the ban.
2. The City and County cites Gluck v. County of Los Angeles (1979)
93 Cal.App.3d 121, 132. 155 Cal.Rptr. 435, for the principle that
we should indulge a presumption in favor of the validity of the
local ordinance. However, as we read Gluck, it applies to implied
preemption, not to express preemption or conflict between state and
local law. Even were we to indulge a presumption in favor of the
local ordinance, we would find it expressly preempted, in direct
conflict with state law, and impliedly preempted.
besides, I'm going to have to buy several safes to hold all of those handguns safely!
