Cal. Supremes to Hear Handgun Ammo 'Void for Vagueness' Appeal - California Case Law
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Cal. Supremes to Hear Handgun Ammo 'Void for Vagueness' Appeal

A 2010 law that would have placed a number of restrictions (fingerprinting purchasers, sales tracking, and a ban on online and mail-order sales) on ammunition that is "principally for use" in handguns, has twice been shot down by California courts as "void for vagueness." Now, the law will get its last chance at life from the state's high court.

The California Supreme Court yesterday agreed unanimously to hear an appeal in the case, reports the Metropolitan News-Enterprise. Possible issues could include the vagueness of the statute itself or the standard to be applied in facial challenges to laws.

Fifth District Court of Appeal: Void for Vagueness

Last November, when the Fifth District held that the law was void for vagueness due to the definition employed for "handgun ammunition" ("principally for use in pistols, revolvers, and other firearms capable of being concealed upon the person,"), we explained the problem with the statute in terms accessible to those who don't sleep with a pistol under their pillow.

Here's the short version: some ammo is used in pistols and rifles and guns that fall somewhere in between.

The majority of the Fifth District held:

"We find no basis ... upon which to conclude there is a common understanding or objective meaning of the term 'handgun ammunition.' The level of certainty necessary to provide fair notice of the proscribed conduct and adequate standards for compliance with the law is missing. Therefore, the statutory scheme is unconstitutional."

The dissent argued that though "the determination of whether a particular cartridge is principally for use in handguns may be problematic given that many cartridges are used in both handguns and rifles[,] [u]nder the principle of judicial restraint, however, I would consider those potential problems if and when they arise."

How Vague is the Facial Challenges Standard?

The News-Enterprise notes that much of the appeals court's opinion, and the dissent, debated the proper standard to apply when evaluating the vagueness of a statute.

The attorney general argued that the proper standard was that of United States v. Salerno (1987), which sets the incredibly high bar of "no set of circumstances exists under which the Act would be valid." The majority cited law review articles and case law criticisms (including some self-criticism from a plurality of the U.S. Supreme Court) of the doctrine, which would "make a facial challenge virtually impossible to win."

How about California case law? "The California Supreme Court has on several occasions recognized its own inconsistency in using different levels of review for facial challenges."

Yeah, we're thinking the Cal. Supremes might just be itching to fix their vague standard.

The appeals court majority, by the way, ended up applying San Remo Hotel L.P. v. City & County of San Francisco (2002), which asks "whether a statute is constitutionally invalid in the generality or great majority of cases," a much more lenient standard than Salerno.

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