People v. McCabe CA3

DISCUSSION

I. Second Amendment Claim

Relying on the United States Supreme Court’s decision in District of Columbia v. Heller (2008) 554 U.S. 570 [171 L.Ed.2d 637] (Heller), defendant contends his possession of a firearm was protected by the Second Amendment, and therefore his conviction for being a felon in possession of a firearm violates the Second Amendment. He argues section 29800 violates the Second Amendment on its face. It does not.

“A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084) “If a statute is constitutional in its general and ordinary application, the statute is not facially unconstitutional merely because ‘there might be some instances in which application of the law might improperly impinge upon constitutional rights.’ (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th. 307, 347.)” (People v. Mitchell (2012) 209 Cal.App.4th 1364, 1373.)

The Second Amendment provides: “A well regulated militia, being necessary to the security of a free state, the right of…