Second Amendment Update 
By Robert Phillips  
Deputy District Attorney (ret.) 

Legal Issues 

California’s Licensing Requirement pursuant to Pen. Code §§ 26150, 26155 

California’s First District Court of Appeals (Div. 4) has chimed in with its own Second Amendment decision in the recent case of People v. Roberts (Sep. 8, 2025) 114 Cal.App.5th 187.  

In this case, defendant Elijah Dovell Roberts was stopped by a California Highway Patrol officer while speeding in Concord. Determining that Roberts was unlicensed to drive a motor vehicle, police impounded his car. After a legal inventory search, officers found a loaded firearm and a pile of cash. The firearm was registered to someone else. As result, Roberts was charged in state court with violations of P.C. § 25400(a)(1), carrying a concealed, loaded firearm in a vehicle, and P.C. § 25850(a) & (c)(6), carrying a loaded firearm in a vehicle when the firearm was not registered to him.  

Citing New York State Rifle & Pistol Association v. Bruen (2022) 597 U.S. 1, Roberts argued that a license to carry a firearm (commonly referred to as a CCW permit) would have provided him with a defense to these charges and that the statutory requirement (P.C. §§ 26150, 26155) to have such a license violated his Second Amendment right to bear arms. Upon denial of his motion by the trial court, Roberts appealed. 

The First District Court of Appeals affirmed, ruling that requiring a CCW permit did not violate the Second Amendment. The court set out the legal standards to be used when making such a decision. The court first noted that “(a) defendant challenging the constitutionality of a statute carries a heavy burden.” Further, the courts must presume the constitutionality of a statute unless it “clearly, positively, and unmistakenly” appears to be unconstitutional. (In re D.L. (2023) 93 Cal.App.5th 144, 156-157.)  

A defendant may challenge the constitutionality of a statute in either of two ways: “on its face or as applied.” (Ibid.) “A facial challenge seeks to void the statute as a whole by showing that ‘no set of circumstances exists under which the [statute] would be valid,’ i.e., that the law is unconstitutional in all.” (Id., at p. 157; Italics added. See also Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) In contrast, an “as applied” challenge requires only that the defendant show that a specific application of an otherwise facially valid statute is unconstitutional when applied “to an individual or class of individuals who are under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which the statute or ordinance has been applied.’” (In re D.L., supra, at pp. 157-158.)  

Lastly, if possible, a court is to hold only that portion of a statute to be unconstitutional where it is severable, upholding the remainder of the statute as constitutional. (People v. Mosqueda (2023) 97 Cal.App.5th 399, 414.)  

When the issue is the applicability of the Second Amendment (“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”), all of this is to be considered in light of the U.S. Supreme Court’s decisions on this topic.  

Early on, the U.S. Supreme Court recognized in District of Columbia v. Heller (2008) 554 U.S. 570, that based on “both text and history, the Second Amendment confer(s) an individual right to keep and bear arms.” (Id., at p. 595.) It was noted that you do not have to belong to any sort of formal “militia” for the Second Amendment to apply. But the court explained in Heller that the right is not “unlimited,” never having been understood to be “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” (Id., at p. 626.) As an example, the Supreme Court specifically identified as “presumptively lawful regulatory measures...longstanding prohibitions on the possession of firearms by felons.” (Id., at pp. 626-627, & fn. 26.)  

Then, more recently, the Supreme Court decided the landmark case decision of New York State Rifle & Pistol Association v. Bruen, supra. In Bruen, the High Court set forth the following framework for deciding Second Amendment claims:  claims:  

“[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation. Only (then)...may a court conclude that the individual’s conduct falls outside the Second Amendment’scommand.’” (Id., at p. 17.) command.’” (Id., at p. 17.)  

Thus, it is now recognized that when considering the constitutionality of a state statute such as is in issue in this case, a court is to look at the history of the statute and engage in some “analogical reasoning.” “[A]nalogical reasoning under the Second Amendment is neither a regulatory straitjacket nor a regulatory blank check....[It] requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” (Id., at p. 30. Italics in original)  

The Supreme Court has more recently explained that “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition. A court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’” (United States v. Rahimi (2024) 602 U.S. 680, 692.) 

With these principles in mind, the First District Court of Appeals took a look at the statutes with which Roberts was charged (P.C. § 25400(a)(1), carrying a concealed, loaded firearm in a vehicle, and P.C. § 25850(a) & (c)(6), carrying a loaded firearm in a vehicle when the firearm was not registered to him), and considered whether California could lawfully require that he have license to avoid being in violation of these statutes.  

Recognizing that there are numerous statutory exceptions to the offenses with which Roberts was charged, the court noted that if a law-abiding California citizen does not qualify for one of the exceptions, the citizen’s only means for lawfully carrying a handgun in public for self-defense is to obtain a license to carry a concealed handgun, as provided for in Pen. Code § 26150. Roberts had no such license in this case. Roberts argued, however, that the statutorily required licensing regime (P.C. §§ 26150 & 26155) is facially unconstitutional under the Second Amendment. The heart of his argument was that this licensing scheme cannot pass constitutional muster under the Second Amendment because it allows for a discretionary license denial without a finding that the license applicant is in fact dangerous. & 26155) is facially unconstitutional under the Second Amendment. The heart of his argument was that this licensing scheme cannot pass constitutional muster under the Second Amendment because it allows for a discretionary license denial without a finding that the license applicant is in fact dangerous. 

When Roberts was arrested, it was a statutory requirement that an applicant for a concealed weapons permit provide “(g)ood cause...for issuance of the license.” [P.C. § 26150(a)]. After Bruen was decided, California’s legislature removed this requirement, conceding that it violated the principles as announced in Bruen. As Penal Code § 26150(a) is written today, the court here held that “since licensure is a reasonable mode of screening that aids the state in determining who is a felon, and thus automatically ineligible for a license, it does not violate the Second Amendment to require licensure as a prerequisite to possessing a firearm.” (Italics added.) 

The court reached this conclusion by noting that it is well established that a statutory prohibition on felons possessing firearms does not violate the Second Amendment under the principles as established in Bruen. (Citing People v. Anderson (2024) 104 Cal.App.5th 577; and People v. Bey (2025) 108 Cal.App.5th 144). However, the defendant in this case was never shown to be a convicted felon. As noted by the court: “For all we know, he was a law-abiding citizen up to that point.” However, the court then also noted that “this (case) is a facial constitutional challenge, and taking as our premise that California can criminally proscribe convicted felons from carrying concealed firearms — as Bey and Anderson correctly held — we build on that premise and hold that it can also require those who wish to carry concealed weapons publicly to obtain a license as a prerequisite, without a finding of dangerousness.” 

The court ultimately found this newly established rule to be consistent with the principles as announced by the Supreme Court in Bruen. “Bruen acknowledged that background checks and firearms safety courses will pass muster as prophylactic measures in the face of a Second Amendment challenge, provided they are based on “‘narrow, objective, and definite standards.’” (New York State Rifle & Pistol Association v. BruenIn conclusion, therefore, the Court held here that, “(b)ecause firearms licensure guided by appropriate standards is a reasonable means of screening to see whether anyone applying for a concealed carry permit is a felon—and thus is not a ‘law-abiding, responsible citizen’ . . . we reject Roberts’s contention that the licensing scheme at issue here is facially invalid.”  As such, the First District Court upheld the trial court’s denial of Robert’s motion. 

In conclusion, the court held here that, “(b)ecause firearms licensure guided by appropriate standards is a reasonable means of screening to see whether anyone applying for a concealed carry permit is a felon — and thus is not a ‘law-abiding, responsible citizen’...we reject Roberts’ contention that the licensing scheme at issue here is facially invalid.”  

As such, the First District Court upheld the trial court’s denial of Roberts’ motion.