Did A State Agency Really Decide That Corporations Have A Right To Assault Weapons?

The California Constitution does not explicitly grant anyone or anything the right to bear arms.  However, a recent determination by the Office of Administrative Law has apparently given rise to the misconception that it has decided that corporations have the right to be issued assault weapons permits on the basis of the U.S. Supreme Court's decision in Citizens United v. Federal Election Comm'n, 130 S.Ct. 876 (2010):

And since corporations are people, the California Office of Administrative Law (OAL) has reasoned, they ought to be able to have permits for selling assault weapons, just like their corporeal embodiments.

Ken Broder, State Corporations Win Right to Handle Assault Weapons (Sept. 18, 2012).

This is, however, a gross mischaracterization of the OAL's authority and its actions.  Here's what actually happened.  The OAL has the authority to determine whether actions taken by state agencies constitute a "regulation" as defined in Government Code Section 11342.600.  In this case, the petitioner sought a determination from the OAL concerning an interpretation adopted by the California Department of Justice involving whether corporations could be issued permits to possess or sell assault weapons.  The DOJ's determination was embodied in letters between the petitioner and the department.

The OAL decided the question by examining the two elements of a regulation established by the California Supreme Court in Tidewater Marine Western, Inc. v. Bradshaw,  14 Cal. 4th 557, 571 (1996).  First, does the purported rule apply generally?  Second, does the purported rule implement, interpret, or make specific the law enforced or administered by the agency, or govern the agency's procedure?  Applying these tests, the OAL concluded that the DOJ's interpretation constitutes a "regulation" for purposes of the California Administrative Procedure Act.  The OAL's determination is available here.

It is important to keep in mind what the OAL did not do.  First, it did not cite Citizens United.  Second, it did not determine that corporations are persons.  Third, it did not decide the policy question of whether corporations should be granted permits to possess and sell assault weapons.  Fourth, it did not determine that the DOJ's interpretation of the applicable statutes was incorrect.  Finally, the OAL did not decide that DOJ could not adopt its "underground regulation" pursuant to the notice and comment procedures mandated by the California APA.

The moral of this story is that if the DOJ wants enforce its interpretation of the assault weapons law, it should itself follow the law by complying with the notice and comment procedures of the APA.