Friday, the day after the
New York State Rifle & Pistol Ass'n v. Bruen Supreme Court decision, the California Attorney General wrote a letter to California law enforcement and government lawyers, expressing "the Attorney General's view that the Court's decision renders California's 'good cause' standard to secure a permit to carry a concealed weapon in most public places unconstitutional." California thus seems ready to promptly shift to a fundamentally shall-issue regime, in which pretty much all law-abiding adults can get licenses to carry concealed weapons. Nor will this require legislative action, I think; California already has a may-issue regime in place for licensing, so—as the AG's office notes—licensing authorities ("sheriffs and chiefs of police") can just use that regime but essentially without applying a good-cause requirement.
But the AG's office concludes that the existing statutory requirement "that a public-carry license applicant provide proof of 'good moral character' remains constitutional," and that this requirement isn't limited to disqualifying felons, certain violent misdemeanants, and the like. And in particular the AG's office suggests that people who hold certain ideological viewpoints should be disqualified:
Existing public-carry policies of local law enforcement agencies across the state provide helpful examples of how to apply the "good moral character" requirement. The Sacramento County Sheriff's Office, for example, currently identifies several potential reasons why a public-carry license may be denied (or revoked), which include "[a]ny arrest in the last 5 years, regardless of the disposition" or "[a]ny conviction in the last 7 years." It is reasonable to consider such factors in evaluating an applicant's proof of the requisite moral character to safely carry firearms in public. See, e.g., Bruen (referencing "law-abiding citizens").
Other jurisdictions list the personal characteristics one reasonably expects of candidates for a public-carry license who do not pose a danger to themselves or others. The Riverside County Sheriff's Department's policy, for example, currently provides as follows: "Legal judgments of good moral character can include consideration of honesty, trustworthiness, diligence, reliability, respect for the law, integrity, candor, discretion, observance of fiduciary duty, respect for the rights of others,
absence of hatred and racism, fiscal stability, profession-specific criteria such as pledging to honor the constitution and uphold the law, and the absence of criminal conviction." [Emphasis added.]
...
This strikes me as clearly unconstitutional under the First Amendment, even apart from the Second Amendment. The government can't restrict ordinary citizens' actions—much less their constitutionally protected actions—based on the viewpoints that they express. People can't be denied benefits because they
- endorse "hatred" (a potentially extraordinarily broad and vague term) and "racism" (a term that, especially in much recent usage, is likewise highly broad and vague), or
- because they endorse certain extremist views of Islam (or any other religion), or
- because they endorse violent Communist revolution or
- are strongly anti-police or
- anti-government or
- anti-abortion or
- pro-abortion-rights or
- environmentalist or
- pro-animal-rights.
Nor does it matter that some extreme adherents of the relevant ideology engage in violence (something that's true for many ideologies), or that there are strands in the ideology that overtly support violence under some circumstances (again, something that's true for many ideologies). Just as the Free Exercise Clause would bar the government from engaging in religious discrimination in deciding which citizens can do certain things, so the Free Speech Clause
bars the government from engaging in viewpoint discrimination. (The rules related to religious discrimination and viewpoint discrimination may be different when the government is acting as employer, but here we're talking about the government controlling the behavior of ordinary citizens.)
And of course it's easy to see how, if California were allowed to deny concealed carry licenses to whoever California law enforcement officials believe is "racis[t]" or endorses "hatred," then some other state could deny such licenses—or lots of other kinds of licenses—to whoever its law enforcement officials believe is anti-government or anti-police or a Muslim extremist or what have you. Indeed, now that some states can ban abortion, presumably strong support of abortion rights might be seen in many states as lack of "good character" (since in those states' views, it would be support for mass murder). The First Amendment doesn't allow this.