Gunfight at the OC Corral

There’s a gunfight brewing in Orange County that would make a great John Wayne movie.

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But the plot of the movie depends on your political perspective and your view on gun control.

Here’s plot number one:

In a corrupt town run by a few rich families, a crooked sheriff hands out guns and badges to those who pay him bribes and help him intimidate the poorer townspeople.

Then the U.S. Marshall comes to town, arrests the crooked sheriff, and takes him away to jail. 

The rich and powerful families who still run the town get together and appoint a new sheriff – one who they think will continue to play by their corrupt rules and continue to supply them with guns and badges.

But the new sheriff in town isn’t as crooked as they thought.

Not only won’t the new sheriff hand out guns and badges to the rich and powerful – but also demands they give their illegal guns back.

They refuse.

Now the new sheriff has a choice: stand up for the law or give in to the rich and powerful who still run the town and risk a gunfight with them and their henchmen on the steps of the town hall.

Here’s plot number two:

In a dangerous border town, the sheriff gives guns and badges to the few good citizens who are struggling to keep their families safe from lawlessness and rising crime.

Then the U.S. Marshall comes to town, arrests the sheriff on trumped up charges, and takes him away to jail. 

The good cirizens get together and appoint a new sheriff – one who they think will continue to help them fight crime by supporting them with guns and badges.

But the new sheriff isn’t as interested in fighting crime as they thought.

Not only won’t the new sheriff hand out guns and badges to the good citizens so they can protect themselves – but also demands that the good citizens hand in the guns that they have, exposing them and their families to attack by the criminals.

The good citizens decide to fight the sheriff and stand firm for the safety of their families and their right to protect themselves.  They refuse to give up their guns.

Now the new sheriff has a choice: allow the good citizens to their to keep their guns or  risk a gunfight with them and their law abiding supporters on the steps of the town hall.

Orange County Sheriff  Sandra Hutchins and most of the county’s liberals would probably pick plot number one as the more accurate version of what’s going on in Orange County regarding the sheriff’s decision to review and reevaluate all of the 1,024 concealed weapons permits (CCWs) issued by former sheriff (and now convicted felon) Mike Corona, revoke a substantial number of those permits, and institute a much more restrictive CCW policy in the future. 

The Orange County Board of Supervisors (and especially Supervisors John Moorlach, Chris Norby, and Pat Bates), the gun-owners lobby, and most conservatives would pick plot number two.

Both sides would probably agree, however, that there’s no guarantee about who will be left standing once the shooting starts.

But whatever version of the plot you pick for The Gunfight at the OC Corral, the order of battle doesn’t favor the sheriff. 

At least not in real life.

On the side of the sheriff, there is the California concealed weapons law (California Penal Code Section 12050), which gives exclusive authority to the sheriff to issue CCWs to persons who are of “good moral character,” who have completed “a course of training,” and where “good cause” exists for the issuance of a CCW license.

On the side of the Board of Supervisors are Orange County gun owners and a well-funded and highly motivated gun-owners lobby with close ties to the Republican Party.

And, perhaps most importantly, the Board of Supervisors will have the 2008 Supreme Court decision in District of Columbia v. Heller in their arsenal.

In Heller, the Supreme Court resolved (for the moment) the great debate on whether 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” — protects individual rights to own weapons or the collective rights of the states to establish militias. 

Heller came down squarely favor of individual rights, holding that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

The Supreme Court’s declaration in Heller that the right of individuals to own and carry guns is protected by the Constitution also probably means that the Privileges or Immunities Clause of the Fourteenth Amendment (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens”) also applies to any attempt by the states to regulate or limit that right.

And while Heller noted that gun licensing requirements and concealed weapons prohibitions had long been upheld by the lower federal courts, it significantly stopped short of stating that such requirements and prohibitions would be sustained in the future.

Two states (Alaska and Vermont) do not require a permit to carry concealed weapons, and three states (Illinois, Nebraska, and Wisconsin) prohibit concealed weapons under all circumstances and do not issue concealed carry permits.  The remaining states are divided among the “shall issue” states that require the issuing of a concealed carry permit when certain conditions are met) and “may issue” states – including California – that permit, but do not require, that a concealed carry permit be issued when good cause is shown.

After Heller, the constitutionality of the more restrictive state regulations of concealed weapons, including California’s, is (at the very least) in question.

Heller also raises the question whether the due process and equal protection requirements of the Fourteenth Amendment governs state and local decisions on whether to issue a particular concealed weapons permit.  

If, as I would expect, the due process and equal protection requirements apply, then Sheriff Hutchins would be constitutionally required not to arbitrarily refuse to issue CCWs and to make CCW decisions on (at least) at rational basis.

No doubt lawsuits will be soon be filed in federal court raising these issues.

Orange County is gun country – but not because we hunt (I don’t think anyone’s shot a bear in Orange County in a very long time). 

Orange County is gun country because it is homeowner country.

Homeowners in Orange County, or at least a great many of them, believe that they need guns, including concealed guns, to protect themselves, and that they have that right under the Constitution.

It seems that the Supreme Court agrees with them.

For both political and legal reasons, my guess is that if Sheriff Hutchins insists on turning the current stand-off into a real shooting war, she won’t be the one left standing.

Michael D. Fox

Michael received a B.A. degree in philosophy and literature, magna cum laude, from Queens College, and a J.D. with honors from the University of Wisconsin Law School, where he was an editor of the Wisconsin Law Review and a member of the Order of the Coif. He also received an M.F.A. and Ph.D. from the University of California, Irvine. Following law school, Michael served as law clerk to the Chief Judge of the United States Court of Appeals for the Sixth Circuit, then as an appellate attorney with the National Labor Relations Board in Washington, D.C., and as a national staff counsel for the United Steelworkers Union. He has successfully briefed and argued numerous cases before the federal and state appellate courts. He has also taught communications, speech, acting, and dramatic literature at the University of California, Irvine, Long Beach City College, and the Laguna College of Art and Design. Among his publications are books and articles on topics ranging from economics, real estate and labor relations to Shakespeare, Samuel Beckett, and contemporary drama. As a theatre director, Michael has staged more than 50 plays. He is the founder and Artistic Director of Moving Target Theatre, which produces socially conscious plays in cooperation with activist organizations and presents them directly in the community. He is also a member of the Executive Board of the Democratic Party of California, president of The Duck Club Democrats, and has received an AFL-CIO Award for Meritorious Service for Commitment to Human Rights. Michael is married and has one son, one dog, two cats and five guitars. 

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  4 comments for “Gunfight at the OC Corral

  1. Northcountystorm
    February 13, 2009 at 1:10 pm

    Nice post, although the plot lines, much like Hollywood, play liberally with the actual facts.
    Good analysis on Heller. Regardless of that case I think Hutchins has handled the CCW issue poorly. Lumping “Carona’s Compadres” in with people who didn’t pay to play” in a retroactive putsch to LosAngelize the concealed weapon permit process was unwarranted and revocation certainly not justified in most cases.

    Ultimately, the 3 Board members who voted for Hutchins(Moorlach, Nguyen & Bates) and are now complaining about the policy should have bothered to find out what her policy would be before they voted for her. Having come out of the “No guns, No way” Los Angeles system should have been a clue to the 5th floor that she would honor the second amendment more in the breach than the observance.

  2. Carl Overmyer
    February 13, 2009 at 6:40 pm

    Michael,
    While I started the post a little tense I find myself in agreement with most of what you said. NorthCoStorm is very correct that there were only a few “connected” CCW’s that were issued and that almost all of those in flux now are NOT of that type. Remember that if the sheriff had simply applied the stricter standards, she wishes, on new applications and renewals, there would have been outcry, but not like we have now. She is solely responsible for the mess that has taken so much time, money and energy form the Co and those who are being, “expired early” a category that has never been attempted by ANY other sheriff or police chief in the state before. Along with her FU attitude toward those she “serves” and the BoS, it does not bode well for her future. I’m very pleased to see an even post from you, here on this issue. Thank you, well done!
    Now let’s see if we can get the Sec. of State to expire her term in office early for misleading statements in the interview process, poor management of resources and nonperformance after being sworn in. At the very least, we have good cause for complaint. That’s more than she has in “expiring early” most all those she wishes to take CCW’s from.
    BTW State law allows sheriffs or police chiefs to issue CCW’s

  3. Alester Smythe
    February 14, 2009 at 2:48 am

    Your anecdote was a bit to heavy. I liked it but it detracted from your point.

  4. February 16, 2009 at 12:27 pm

    My own view of the Second Amendment is neither the individual rights reading (based on the phrase “the right of the people”) advanced by the pro-gun lobby and adopted by the Court in Heller nor the professional state militia reading (based on the phrase “A well regulated Militia”) advanced by pro-gun control advocates.

    Rather, I believe that the Second Amendment was intended to protect the people’s militias.

    The drafters of the Second Amendment wanted to prohibit the federal government from using its new authority under Article I, Section 8 of the Constitution over both “Armies” and “Militia” as a pretext for undermining or destroying the traditional democratic, local, and non-professional (i.e., popular) nature of the various state militias.

    In other words, neither the modern individual rights view nor the state militia view of the Second Amendment is correct.

    Rather, what was meant in 1789 combined elements of both views to protect the people’s militias.

    Constitutional scholar Akhil Reed Amar calls this interpretation of the Second Amendment the “republican reading, as opposed to the states’-rights or individual-rights readings that dominate modern discourse.”

    But the people’s militias that the amendment protected in 1789 no longer exist– they were transformed long ago into the National Guard and are now run, like the regular army, by the Defense Department.

    The entire amendment, therefore, is anachronistic.

    Of course, even if it is anachronistic, the Second Amendment (unlike the people’s militias of 1789) still exists and the courts, which can not declare it irrelevant, still have to find some way of having it make sense in the 21st century.

    In any event, arcane historical questions about what the drafters of the amendment meant in 1789 don’t really control the issue, even if the courts (and litigants) must pretend that it does.

    The real, relevant questions are not constitutional or historical, but have to do with the concrete and contemporary issues articulated very powerfully in the debate we’ve seen here in the comments – that is, should guns (concealed or not) be available to law abiding citizens in the United States in 2009 for their protection.

    My opinion is that they should.

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