Court Of Appeals Rules 2nd Amendment Does Not Guarantee Right to Carry Concealed Weapons
The 9th Circuit Court of Appeals deals a setback to the gun rights movement.
Reversing the 2014 decision of a three judge panel, the 9th Circuit Court of Appeals has ruled that a California law placing severe restrictions on the ability of citizens to carry a weapon outside the home does not violate the Second Amendment, thus setting up another gun rights case for potential Supreme Court review at a time when the nation’s highest court remains essentially equally divided on the issue:
A federal appeals court in San Francisco ruled Thursday that the Second Amendment of the Constitution does not guarantee the right of gun owners to carry concealed weapons in public places, upholding a California law that imposes stringent conditions on who may be granted a concealed-carry permit.
The 7-to-4 ruling by the United States Court of Appeals for the Ninth Circuit, in San Francisco, overturned a decision by a three-judge panel of the same court and was a setback for gun advocates. The California law requires applicants to demonstrate “good cause” for carrying a weapon, like working in a job with a security threat — a restriction sharply attacked by gun advocates as violating the Second Amendment right to bear arms.
“Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public,” the court said in a ruling written by Judge William A. Fletcher.
The case was brought by gun owners who were denied permits in Yolo and San Diego Counties. The plaintiffs did not immediately say whether they planned to appeal to the United States Supreme Court.
“This is a huge decision,” said Adam Winkler, a professor of constitutional law at the University of California, Los Angeles, School of Law. “This is a major victory for gun control advocates. ”
The Supreme Court has ruled that individuals have a right to possess a weapon in their home. Thursday’s ruling centers on the next frontier in the gun-control debate.
“Probably the most important battleground of the Second Amendment has been whether there is a right to carry guns outside the home, and if there is, to what extent can states and localities regulate that right,” said Jonathan E. Lowy, the director of the Legal Action Project at the Brady Center to Prevent Gun Violence.
This decision by the 9th Circuit joins a host of other cases over the past decade or so since the Supreme Court’s landmark decision in District of Columbia v. Heller, which in many respects was the first case out of the Supreme Court to rule on exactly what sort of right the Second Amendment protected in the more than 200 years since it was ratified. In Heller, of course, the Court dealt with the restrictive handgun law in the District of Columbia which made it next to impossible for an average citizen to obtain a handgun for any purpose and keep it in their home for personal protection. After examining a host of material both preceding the adoption of the Second Amendment and contemporaneous to its ratification, the Supreme Court concluded in a 5-4 decision that, at the very least, the Amendment protects an individual right to own a handgun and to keep the weapon in the home in such condition that it could reasonably be used for personal protection if necessary. As a result, the District of Columbia law, which among other things required that the weapon be kept disassembled in a locked box was unconstitutional. In the ruling, written by Justice Scalia, the Court was careful to point out that its decision did not extend any further, nor did it mean that other regulations and restrictions dealing with guns were necessarily unconstitutional. Indeed, the Court’s ruling appeared to concede that some restrictions, such as those dealing with barring gun sales to the potentially dangerous, would obviously pass muster under the Court’s analysis. After Heller, the Court ruled in McDonald v. City of Chicago that the Second Amendment was, along with essentially the rest of the Bill of Rights, incorporated into the 14th Amendment, thus meaning that a Chicago ordinance that was very similar to the District of Columbia law was similarly unconstitutional.
In the six years since the Court’s decision in McDonald, the Supreme Court has not accepted another case dealing with gun rights issues, instead preferring to let the Circuit Courts hash the new questions that Heller and McDonald had raised, specifically the boundaries of the right that the Second Amendment protected and the extent of regulation that was permissible under the law. Among the most important of those questions has been the issue of laws which restrict the ability of gun owners to carry their guns outside the home. Logically, of course, there’s no reason why it shouldn’t, and while there is arguably a good case to be made that states should be permitted to create some reasonable regulations when it comes to the right to carry, whether it be open or concealed, it seems entirely illogical to say that there is no right to carry at all, or that the right can be so severely restricted by the state as to be unavailable to the average citizen. After all, the Amendment specifically refers to a right to keep and bear arms, and a legal regime where one is legally allowed to keep (i.e. own) a handgun but not allowed to bear (i.e., carry, whether open or concealed) makes no sense given that language.
This is one of the central issues Federal Courts in the post-Heller world have been dealing with. So far, the results have been somewhat mixed. In 2012, the Seventh Circuit Court of Appeals, struck down Illinois’s restrictive concealed carry law. Rather than appealing that ruling, the state revised their laws in a manner that at least tried to comply with the Court’s holding in the case. So far, that new law has not been challenged, so it’s unclear whether it would pass Constitutional muster or not, but the result has been that it is now far easier for Illinois residents to carry weapons in public legally. In 2013, the Supreme Court declined to hear an appeal arising out of the Second Circuit upholding New York’s restrictive concealed carry law. In the District of Columbia, a Federal District Court Judge has ruled once in 2014 and once in 2015, that the District of Columbia’s concealed carry law was unconstitutionally restrictive. And, now, we have this ruling from the 9th Circuit. Where it leaves the nation is, perhaps, where the Supreme Court wanted to leave it in the wake of Heller and McDonald, with the issue of what the limits of the Second Amendment are left largely to the states and the lower Federal Courts.
At some point, of course, the Supreme Court will be required to hear an appeal relating to the issue of what the Second Amendment says about the right to carry weapons outside the home. Because of the current 4-4 makeup of the Court, it seems unlikely that this case will end up being that case, however. Conservatives will be reluctant to take up the case because the inevitable result will be a 4-4 tie in which the 9th Circuit’s decision will be permitted to stand, this time with the apparent blessing of the highest court in the land. The Court’s liberal wing would likely be content with letting the ruling stand without further review. It’s possible, of course, that the Court would defer ruling on whether to accept the case until it has a ninth member, but at this rate it doesn’t look like that will happen until the late winter or early spring of next year. This much is clear, though, to a large degree the future of the Second Amendment’s potential expansion will depend on the outcome of the election. If Hillary Clinton wins, then its seemingly inevitable that whomever is appointed to replace Justice Scalia would be more likely to vote to uphold this Ninth Circuit decision than to strike it down. Thus, to some degree, the gun rights movement is in the unfortunate position of both hoping that Donald Trump is elected President and hoping that whomever he would appoint to the Supreme Court would rule in their favor. Given that there is no reason to believe any of the promises Trump has made about Judges or anything else, that’s a rather unfortunate position to be in.
Update: David Kopel has a detailed analysis of the decision.
Here’s the Ninth Circuit’s decision:
Short of a total ban on any sort of carry by anyone, which is not what California law mandates, courts are generally going to err on the side of public safety. I don’t see them seeking cert at all on this one simply because the clock is against them. They’ll have 90 – and at most 150 – days to get the petition filed, which only gets them to November, best case. There’s no way they’re going to risk having SCOTUS give a de facto stamp of approval to a ruling essentially opening the door to concealed carry bans (in practice) across 9 states.
Hmm…that ninth seat is looking more and more important each day…
It’s sad that in one thread we credit judges to be able to rise above their racial prejudices but in this thread we can pretty much forecast the Court’s opinion with near-100% certainty. Ideology trump’s everything else, I guess.
One “bears arms” as part of a military organization. But I suppose that interpretation would just bring up that whole uncomfortable “well regulated militia” thing again.
@jd:
Not for nothing, but the quote above was written by the late Justice Scalia. When you’re to his right, it’s about nothing but ideology – extremist ideology.
@HarvardLaw92:
You’re gonna get mail. I know you realize that the well proven and common sense notion that having a lot of guns around is dangerous is heresy to our friends of the conservative faith.
They need to get copies of this decision out to all the gang members, bank robbers, drug dealers, serial killers, assassins, terrorists, kidnappers, and career criminals so they will know and check the laws where they are.
@Tyrell: I sure as hell don’t want to live wherever you are if you have all that stuff around.
@gVOR08:
Ayup. For reasons passing understanding, people do not relate guns to gun-related crime.
Well of course they don’t…as we are told, guns don’t kill people; people kill people…
@An Interested Party:
Sounds like we need to ban people.
My prediction is it will not be decided based on the 2nd but on the 14th; the main difference being a “shall issue” vs. “may issue”. So I think the decision will force the state to formulate “shall issue” laws, but allow those to be highly restrictive. As long as they set out definite criteria for the issuance instead the current “did you donate to my campaign” rules.
More opportunities for graft when the right to carry is subject to arbitrary decisions by officials.
Not to mention, the right to carry arms has historically been restricted to free men and not servants so this is in keeping with the change of California to a feudal state with institutions like Mexico.
Looking at the 20th century, we could go a long way to making the world safer if we banned socialists of both the national and international varieties.
The OP’s talk of “gun rights” is the tell to how gun rights enthusiasts think . They seem to say that “guns” have rights-and in their minds, they’re right.
I used to think that the problem of guns in America was rooted in the Second Amendment, with its arcane language and its multiple commas. Recently, the scales have fallen from my eyes. Note that the Second Amendment does not stop Americans from sensibly regulating “arms”( weapons). Indeed , we intelligently regulate, limit or ban every kind of weapon on public health grounds-except for one. Why not that one?
It’s because guns are considered to be what I call the “Jesus weapon”. They are cloaked with a mythology where guns are considered to be benign and wholesome.Guns “won the West”. They allowed the white man to conquer and control the “savages” (non-whites). Gun possessors are considered to be better, more patriotic, and more masculine than none gun owners. The only problem with guns is that effete liberals don’t like them, and try to keep “real Americans” from owning and carrying them around.
The result of all this? Guns alone are entitled to constitutional protection. You will find gun rights enthusiasts arguing favor of no other weapon. For fun, just substitute any other weapon in place of “gun” in the standard “gun rights” argument-and watch the argument fall apart.
Does anyone say “”If bombs are outlawed-only outlaws would have bombs” as an argument for the public having access to high explosives?Nope. Even the nuttiest gun nut would say that’s crazy talk. That’s because there is no bomb cult here insisting that bombs are a special weapon necessary to protect our freedom. Such bomb cults exist elsewhere. We call those cultists jihadists and terrorists.
We don’t argue “hand grenades don’t kill people, only people kill people”. Swords, cutlasses, and daggers were standard infantry weapons in the 18th century and certainly fit the “Heller” definition of “personal weapon”, yet we ban people from wearing them in our public places without a peep of protest or argument that a “sword is only a tool” or that a “dagger can’t jump up and stab anyone”.
Gun rights enthusiasts tell us that guns are necessary for protection of the home because “police are minutes away, when seconds count.” An even better way to protect the home would be the best area defense weapon ever invented-the land mine. So why aren’t “Second Amendment absolutists” pressing for the right of the “responsible home owner” to use mines for home defense, public policy considerations be damned? Because thanks to popular mythology, land mines are different from guns. They are just weapons. They’re not the “Jesus weapon.”
Doug did not say why limiting “concealed carry” only to those having “good cause” is wrong.Rather, he says the “average citizen” should be allowed to carry around guns. Presumably, the “average citizen” here is some untrained individual who just wants to carry around a gun for any reason.How is public well served by this? And why guns and not any other type of arms? I’ll wait for Doug or some other gun rights enthusiast to answer that question, but I expect they won’t (they never have).
You’ll find a list of weapons prohibited by California here, with pictures. The list includes short barelled shotguns, cane swords, switchblades, brass knuckles and billy clubs. Why no love for the average citizen who wants to be a responsible brass knuckle or switchblade owner, Doug?
@HarvardLaw92:
Probably because there is no relation. If there was, California would have the lowest rate of gun crime since it has the most restrictive gun laws in the nation. Why doesn’t it?
@HarvardLaw92:
My feeling on this is that both conservatives and liberals are going to wait for the ninth justice. If things work out as expected, and Clinton appoints that ninth justice around March of next year, the gun rights folks are going to hunker down and try to protect their gains. Frankly, I think even before Scalia’s death, the court conservatives were split on gun rights. I think only Scalia and Thomas were truly gung ho on gun rights, with the rest just going along for the ride. With Scalia gone, I think only Thomas is the last true believer. I doubt Roberts and Kennedy are enthusiastic about people insisting that guns should be carried into bars, playgrounds, stores and churches.
I think what’s why after McDonald, the gun rights folks had a progressively harder time getting certiorari on gun rights cases. Scalia and Thomas couldn’t get Roberts and Kennedy to go along on anything that wasn’t an outright ban on handguns.
If Clinton appoints the ninth justice, the expansion of gun rights will come to a halt, and you’ll begin to see fewer open carry and “shall issue” laws.Heck, you might see liberals push for a reconsideration of Heller. It’s a dumb enough decision that’s worth reconsidering.
While the decision does not surprise me at all… as a well regulated militia would not carry concealed weaponry — those weapons would be out and loaded [but not chambered] for all to see — to maintain the security of the state…
What DOES surprise me is the LACK of hubbub and brouhaha that this has generated today.
Two years ago, this would have gone well over 100 comments (if not 200) with impassioned arguments by the opposing views, the usual straw men and the expected ridiculous argumentum ad hominem.
Today? Barely a peep.
It’s obvious that Trump has taken over the national discussion completely. We all wait for the other shoe to drop.
Not to mention fascists…
Fascists were/are socialists. If you doubt me, read Goebbels?
Or here is this description of the various forms of socialism from von Mises:
@stonetools: Gun sales have gone out the ceiling the last few years. If it looks like Hillary is going to be selected, then sales will go even higher.
I know people who are concealed carriers and some open carriers. I know a few teachers who have concealed permits. Some of the store owners around have guns. Those are the stores that never get robbed. Word gets around about those things.
Sign in front of home: “Home Security Provided By Smith and Wesson Co.”
@stonetools:
The Second Amendment is fine. The effort to misinterpret it is the problem, and that would occur no matter how it’s written.
It should be clear that the Second Amendment was intended to address the federalization of the militia that was undertaken in the original Constitution. We can simply read the minutes of the House debate in the Congressional Record and the changes in the amendment’s wording that occurred as a result of that debate if we want to know what motivated them. But some among us just don’t want to know.
@Gavrilo:
Yea, about that – state borders aren’t walls. It’s essentially meaningless from the standpoint of reducing overall gun crime if all someone has to do to get around CA laws is hop into their vehicle and head over to NV, AZ, UT or ID, all of which have ridiculously lax gun control laws.
So, thank you I guess, for making the argument for federal preemption of state gun control laws.
@stonetools:
I’ve never been that convinced that Scalia was actually gung-ho with regard to gun rights. While I agree that Heller is a deeply flawed ruling, it sprang from his pen and is filled with equivocation. Scalia went out of his way (IMO) in Heller to preserve the ability to regulate firearms in a manner that a true NRA disciple would never have done.
If anything, I believe that Alito (who I detest) is far more dangerous in this regard. His ruling in McDonald doesn’t even attempt to couch his opinion in nebulous terms.
I agree with your analysis though – barring a significant shift in the makeup of Congress, which isn’t likely anytime soon, we’re most probably going to see a stagnation at the SCOTUS level with respect to any significant movement away from the status quo.
Where we may see that movement, however, is in the appellate courts. They’ll be more open to delivering rulings which test that status quo (in favor of a more restrictive one) if they’re of the opinion that they’re less likely to be overturned over on First Street NE. The court’s essential refusal to take up any sort of gun related cert petition post McDonald has already begun to produce that response in the circuits. Let Clinton replace Scalia with a 5th vote favoring a more restrictive reading, and the appellate judges won’t need much prodding to take the hint and run with it.
@Mu:
I’ll have to disagree there. The statutes as written impose restrictions which are equally applied to all applicants according to criteria which are adjudicated equally on the same set of standards. Equal protection and due process aren’t implicated.
The decision will likely be overturned. The 9th Circuit is the most overturned court in the country and they rarely rule for the Constitution.
@Tyrell: Funny thing, in the neighborhood where I grew up, the sign “Home Security Provided By Smith and Wesson Co.” was considered a good clue for where to get a gun if you wanted to steal one. For personal use and high resale value, S&Ws
@Tyrell: In my neighborhood, “Home Security Provided By Smith and Wesson Co.”, was the go to sign for where to boost a gun. Good piece in an armed robbery and high resale value on the black market when you were done.
Even if they were only kidding about the S&W, a house advertising an available gun was a good target–or are all the criminals in your town home invaders as opposed to burglars?
Ahh, so Sanders and, possibly, Obama are fascists as well as socialists? Good to know…
@stonetools: I cannot get a sword cane in Washington State. Our concealed carry law for weapons only covers guns.
Very disappointing.
john, what % of their decisions are overruled?
@stonetools:
http://www.nybooks.com/daily/2012/12/15/our-moloch/
@JKB:
Your literacy skills are lacking. From the same Nazi pamphlet:
The Nazis were anti-Marxist, which is a pretty good indication that they were not socialists. The operative word here is “national”; the last thing that the Nazis wanted was for the workers of the world to unite.
I read David Kopel’s analysis . We should not think that it is an objective treatment; he is a party to the case on the “gun rights” side. I feel compelled to highlight this argument:
This is possibly the dumbest argument in the history of gun rights legal argument. A person who calls 911 when he sees someone openly carrying a gun isn’t suffering from a phobia; they’re suffering from common sense. Apparently, gun rights enthusiasts don’t know what that is.
Hell’s bells, Doug, what do you do when you see a guy carrying a gun coming in your direction?
@Gustopher:
You aren’t a “real American.”Real Americans “use only guns for self defense, not cane swords, or nunchakus or only other weapon. If you are skilled in Asian martial arts and prefer to use those weapons, you are SOL.
Yet more evidence that Second Amendment rights are just gun owner’s rights.
@Gavrilo: “Probably because there is no relation. If there was, California would have the lowest rate of gun crime since it has the most restrictive gun laws in the nation. Why doesn’t it?”
If doctors knew anything about curing illness, then hospitals would have lower death rates than anywhere else. Why don’t they?
@HarvardLaw92:
Except California has a lower rate of gun ownership than any of those other states, yet only AZ has a higher gun murder rate. Gun murder rates in ID and UT are only a fraction of what it is in CA, even though they have a much higher percentage of gun owners. Again, people don’t relate guns with gun crime because there isn’t a relationship.
@Gavrilo:
Aside from the fact that you’re reporting statistics which are self-reported by the states as they choose, based on definitions &criteria that they select for themselves (and which as a result are typically apples to oranges) riddle me this:
If California indeed has this low rate of gun ownership, draconian (in your opinion) gun control laws, but a very high rate of gun crime:
Then whence cometh all these guns in California?
Thanks for continuing to argue for federal preemption. 🙂
@john430:
Overturned by whom? The current 4/4 Supreme Court? The 5/4 liberal leaning Supreme Court we’ll have in the wake of a Clinton presidency?
Helpful hint – as I noted above, they’ll have 90 days (150 days if Kennedy decided to invoke the additional 60 day cushion, which is highly unlikely) to get their appeal perfected and a petition for certiorari filed. That puts them having to be on point by September at the latest.
Such a filing would put the case in line to be argued well before late January, which is the earliest that a hypothetical president Trump could possibly seat another Justice (and one who wouldn’t participate in the voting).
Know what that gives you? A 4/4 punt back to the 9th circuit in which its ruling would stand. Gura is somewhat crazy, but he isn’t entirely stupid. Trust me when I tell you that there will never be an appeal to SCOTUS in Peruta. It’s dead in the water.
@steve s: Although recent years have seen other circuits competing with the Ninth Circuit for the title of “Most Reversed,” the Ninth still appears to hold the unquestioned title. The Ninth Circuit’s best showing in recent years was October Term 2009, with a 60 percent reversal rate in the 15 cases on which certiorari was granted. The Sixth Circuit got the prize for highest reversal rate that year, with seven cases resulting in seven reversals, while the Seven Circuit came in a close second (91 percent reversal rate in eleven cases). But in 2010, perhaps seeking to reclaim its position at the top of the heap, the Ninth Circuit was reversed a startling 19 times (79 percent), three times as many reversals as most circuits had cases before the Supreme Court. The same pattern continued in the 2011 (71 percent) and 2012 terms (86 percent), when the Ninth Circuit was reversed more than twice as many times as most circuits had cases before the Court.
Read more at: http://www.nationalreview.com/bench-memos/373273/ninth-circuit-leading-pack-most-reversed-jonathan-keim
@john430:
Note: the REALLY fun part of all of this is that the 9th Circuit just issued an en banc ruling in Peruta which also tees up a blatant strategy directive for how the panel should adjudicate Nichols v. Brown. They swung for the fences with this one and ended up crashing their plane into the Pacific.
Won’t you be so happy to see that change under a new Supreme Court with a liberal majority…
@Just ‘nutha ig’rant cracker:I guess the homeowner thought the sign would deter any burglars. But break-ins around here are unheard of, according to the police chief. A few years ago there was rash of thefts occurring, usually on Sunday mornings. It was bikes, mowers, hubcaps – outdoor stuff. They finally got caught and sent away to the prison farm.
@HarvardLaw92:
It really doesn’t matter where the guns come from. Any gun owned by a CA resident is subject to the same laws, regardless of whether it was bought in CA or any other state. It was your assertion that more guns = more gun crime. That’s simply not true. There is no correlation. Some states with high % of gun owners have high gun murder rates, like Louisiana. Some states with low % of gun ownership have high gun murder rates, like Maryland. And, a lot of states with high % of gun ownership have low gun murder rates, like ID, ND, SD, WY, MT, VT, WI, WV.
@Gavrilo:
Actually, that wasn’t my assertion. My assertion has been pretty much from the beginning that we have a lax system of gun CONTROL. You’re leading off with this ridiculous “more guns has no effect on crime rates” lunacy and pointing to statistics regarding legal gun ownership in an attempt to substantiate it.
The truth of the matter is that there is indeed no correlation, at all, between rates of legal gun ownership and gun related homicide. Vermont has the lowest rate, at 0.3 per 100,000 with a gun ownership rate of 42%, but following it up in 3rd place is Hawaii, with a rate of 0.5 per 100,000, but with a gun ownership rate of 6.7% (note: this is almost 1/4th the rate in California). The graph of his function is chaotic at best, which leads up to the essential truth that greater rates of legal gun ownership in and of themselves do NOT cause lower crime rates, while it’s pretty clear that the prevalence of ALL guns within an area is a pretty reliable predictor of violent crime rates of all types.
Are you actually trying to argue my point for me? If so, you’re doing an excellent job of it. Thanks 🙂
(Note: the underlying truth here is that the gun lobby’s position has nothing to do with reducing crime, or personal safety, or any of the other window dressings they’ve come up with to hide the simple truth that they just like guns. That’s all that this is about. It’s all that it has ever been about. Some people just like guns – end of story).