THE BLOG
09/11/2015 12:25 am ET Updated Sep 11, 2016

California's SB 707: Gun Control vs. the Equal Protection Clause of the 14th Amendment

Bryant: "Stop right where you are! You know the score, pal. You're not cop, you're little people." - Blade Runner, 1982

It's been quite the summer for Section 1 of the 14th Amendment to the United States Constitution also known as the Equal Protection Clause. It states,

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The 14th Amendment was ratified in 1868 eclipsing the Dred Scott Decision in 1857 of the pre-Civil War Supreme Court and placing into the Constitution the principles of the Civil Rights Act of 1866. It abolished slavery under the law and applied the principles of the Declaration of Independence to everyone. You remember, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights ..."

Over the last 146 years, "We the People" have struggled to live up to the 14th Amendment in the face of numerous special interests who have found the endowment of truth unpalatable. As we have seen this summer, the full acceptance of the 14th Amendment remains very much a work in progress by the United States. We've seen another class of U.S. citizen ascend to equality in the way of gay marriage and we are seeing resistance to it most notably in Rowan County, Kentucky where Democrat clerk Kim Davis has mounted a one woman rebellion to resurrect the misguided Dred Scott principle that certain people have no standing to demand equal rights because they are not people in the eyes of her Creator. We shall, as a People, as citizens of a plural nation, see how this drama plays out in the coming days.

But the subversion of the Equal Protection Clause touches us in other parts of our lives -- nowhere more starkly than the area of gun control. Lest we forget, one of the first incidents of defiance against the 14th Amendment was a massacre about gun control against free blacks in Colfax, Louisiana in 1873 who dared declare publicly that they were free and equal people under the law. Gun control has been a struggle of the ordinary citizen against the will of their betters ever since. We've lived through 142 years of it and are nowhere near closer to equality than April 13, 1873 when the shadow of segregation placed Reconstruction into limbo in America.

Every now and then a case, a law comes into focus to remind us just how far we remain from the dream of equal protection under the law. Such a case appears this week in the State of California where the betters have moved Senate Bill 707 to Governor Jerry Brown's desk for consideration.

SB 707 is a gun control bill. It is part of a larger strategy of zero tolerance gun control measures with the real aim to trip people up in ways that even the smallest mistake causes them to lose their gun rights. SB 707 adds a new tripwire to the Gun Free Zone laws that surround 1,000 feet around every school in California threatening everyone, even those with a dire need or legal permit, from being within these zones with a gun. Everyone that is, except for the one lobby Sacramento needed to support this law, retired police officers. Even though they are no longer law enforcement officers and do not have any police powers, they will be granted a privilege no other citizen will have in the State of California. Indeed, there are lobbyists that seem to believe that retired police officers are not subject to living among their lowly fellow citizens as equals under the 14th Amendment; that they are better, exempt; that they are not "little people".

SB 707 is actually unconstitutional and there is case law that already says so. In 2002, the Ninth District Circuit Court already declared that retired cops have no right to special privileges above those of ordinary citizens. It's this principle of equality under the law that once caused then California Attorney General Jerry Brown to begin issuing letters to retired police officers, who had acquired statutory "assault weapons" under exemption letters, because they were active duty police officers after the cutoff date of California's laws, to turn them in or remove them from the state upon their retirement. The California Department of Justice under current Attorney General Kamala Harris has been sending these revocation letters to retiring cops. Why Harris did not strongly weigh in on this violation of equal protection aspect of the pending legislation when she knows full well that she's enforcing it in other areas is puzzling.

This 14th Amendment question of a segregated divide under the law is equally puzzling when one further considers that retired cops are routinely given courtesy CCW's when other citizens in California are systematically prevented from obtaining them; something the Attorney General's office goes to extraordinary means to perpetuate. Remember, these are retirees with no actual police powers; only the rights of citizens to self-defense outside the home.

So what's politically going on here? Frankly, it's special interest politics. Lawmakers know they cannot pass laws restricting and entrapping citizens into running afoul of gun laws to turn more of the population into prohibited persons without in turn running afoul of a police lobby full of people who would go bonkers if they could not have their guns and do with them as they please. What message would that send to active law enforcement if the state said plainly that at the end of your career, you lose all your bennies? No more "assault weapons". No more handguns that are not on the State's ever dwindling Roster firearms certified for sale. No more over 10 round magazines bought over the counter by just showing ID. Welcome to being a member of the suspect class. No that won't do at all. So, they create a privileged class, one with rights above those of "little people". One to whom - as some assert - the 14th Amendment does not apply.

Or does it? At some point, someone will test this cozy theory of patronage that exists between legislatures and lobbyists to grant segregated privileges; to create "betters" among the People. It's likely to result in the upheaval of H.218 retiree CCW's, interstate reciprocity among cops, and a whole bunch of other things that Section 1 of the 14th Amendment will frown upon because the rest of America's citizens don't have equal access to the law.

It must be fall in California. Jerry Brown faces another decision with national implications.