The Ninth Circuit Court of Appeals has issued a ruling striking down California’s law regarding the circumstances under which gun owners may carry their weapons in public in a sweeping ruling that has the potential to vastly expand the legal understanding of the rights granted under the Second Amendment:
California must allow law-abiding citizens to carry concealed firearms in public, a federal appeals court ruled Thursday, striking down the core of the state’s permit system for handguns.
In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco said San Diego County violates the Constitution’s Second Amendment by requiring residents to show “good cause” – and not merely the desire to protect themselves – to obtain a concealed-weapons permit.
State law requires applicants to demonstrate good cause, as well as good moral character, to carry concealed handguns, while leaving the permit process up to each city and county. The ruling, if it stands, would require local governments to issue permits to anyone of good moral character who wants to carry a concealed gun for self-protection.
“The right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense,” Judge Diarmuid O’Scannlain said in the majority opinion.
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In the same ruling, the justices said restrictions on carrying concealed weapons were “presumptively lawful,” meaning that they would be upheld unless shown to be unreasonably burdensome. But the appeals court said the county’s licensing system doesn’t pass the Supreme Court’s test because of the additional burdens California places on would-be gun owners.
California has long had some of the nation’s strongest restrictions on gun ownership, and, according to the court, is one of only eight states that allow local governments to deny concealed-weapons permits. The state formerly allowed residents to carry unloaded firearms in public, with ammunition in a separate container, but repealed that law at the start of 2013.
The ban on openly carrying guns made it impossible for most law-abiding citizens in counties like San Diego to “bear arms” for self-defense, O’Scannlain said in Thursday’s ruling. He said the Second Amendment guarantee of the right to “bear arms” must include the right to carry weapons outside the home.
The risk of armed confrontation “is not limited to the home,” O’Scannlain said. He invoked the situations of “a woman toting a small handgun in her purse as she walks through a dangerous neighborhood, or a night-shift worker carrying a handgun in his coat as he travels to and from his job site.”
C.D. Michel, lawyer for the National Rifle and Pistol Foundation and individuals who challenged the San Diego County system, said sheriffs in many rural California counties already comply with the court’s standard by issuing gun permits to anyone who wants one for self-defense. But urban counties require evidence of a special need for a weapon, the requirement that the court invalidated, he said.
“The right to self-defense doesn’t end at your threshold,” Michel said. He said the ruling is “probably the biggest Second Amendment win” since the Supreme Court’s 2008 ruling and a follow-up decision in 2010.
SCOTUSBlog’s Lyle Denniston describes the ruling of the three judge panel (on a 2-1 vote) as “sweeping”:
The U.S. Court of Appeals for the Ninth Circuit — the first to rule, ahead of the Supreme Court, that the Second Amendment right to have a gun extends nationwide — today issued the most sweeping decision yet on the right to carry a gun in public places. The amendment means, the panel ruled in a two-to-one decision, that it is unconstitutional to confine the “right to bear” arms solely to the home.
Such a limitation, the panel ruled, would amount to a complete destruction of Second Amendment rights and cannot be justified on any constitutional reasoning. Thus, it said, while government might forbid carrying a concealed gun in public, or carrying a gun openly in public, it cannot do both. The right to have a gun for self-defense clearly exists beyond one’s home and hearth, the majority said. And, it added, it has always existed, since the Second Amendment was put into the Constitution in 1791.
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The Ninth Circuit ruling came in the case of Peruta v. San Diego County (Circuit docket 10-56971), and it struck down a county policy law that required a gun owner to get a license to carry a concealed gun in public and restricted licenses to those who could show “good cause” for the need to defend themselves. The mere fact that an individual was concerned about his own safety does not satisfy that requirement.
Circuit Judge Diarmuid F. O’Scannlain wrote the seventy-seven-page majority opinion, joined by Circuit Judge Consuelo M. Callahan. Judge O’Scannlain was the authority of a 2009 Ninth Circuit opinion that was the first to extend the Second Amendment personal gun right to the state and local level (after the Supreme Court had recognized such a right at the federal level, in the case of District of Columbia v. Heller in 2008. The Supreme Court itself would apply Heller nationwide in 2010, in the case of McDonald v. City of Chicago.)
Circuit Judge Sidney R. Thomas dissented from the new ruling, arguing in a forty-eight-page dissenting opinion that the decision conflicted with Supreme Court precedents and with every other federal appeals court decision on this issue, including the one by the Seventh Circuit going part of the way to extend gun rights beyond the home.
Judge Thomas contended that the ruling was so broad in its approach that it would strike down almost all of the California laws that restrict gun rights outside the home. California bars the open or concealed carrying of a handgun in public, but it does create a licensing regime for concealed carry. It has no similar licensing for open carry, so that is effectively banned across the state.
Judge O’Scannlain countered that the decision actually applied only to the concealed-carry licensing scheme in San Diego County. But his opinion did go well beyond that in concluding that government must allow some public carrying of guns for personal self-defense.
At a more technical legal level, the majority opinion abandoned at least for this case the two-step Second Amendment analysis that all federal appeals courts that have decided this question so far have adopted: first, inquiring whether the right at issue was part of the “core” of the Second Amendment, and, second, if it was, whether it put too heavy a burden on the right to have a gun for personal self-defense. (The Ninth Circuit itself had embraced that mode of analysis.)
Instead of that approach, Judge O’Scannlain declared that, if a gun control law goes so far as to effectively destroy that personal gun right, such a law must always be struck down no matter how it was analyzed because the impact on the right was just too great. Confining gun rights to the home does just that, the ruling declared.
As noted, this decision by the Ninth Circuit joins a decision last year by the Seventh Circuit that found Illinois laws regarding carrying weapons in public to be unduly restrictive and therefore unconstitutional. In response to that case, the Illinois legislature ended up substantially revising the state’s carry laws in an effort to bring them into compliance with the Court’s ruling. Since the legislature has gone ahead and done that, it’s unclear what the procedural posture of that particular case is at this point, although the time within which the state could have appealed the matter to the Supreme Court has likely long ago expired. Meanwhile three other Circuit Courts of Appeal, the Third Circuit, the Fourth Circuit and the Second Circuit have decided the issue differently and upheld state laws from New Jersey, Maryland, and New York regarding the carrying of weapons in public. This split among the circuits virtually guarantees that the Supreme Court will end up accepting a case for review at some point in the near future, perhaps soon enough for it to be heard during the same October 2014 Term that is likely to include a case or cases involving same-sex marriage as well.
In the end, it was inevitable that this issue would end up before the Supreme Court at some point. In District of Columbia v. Heller, the Supreme Court broke new ground ground in the area of Second Amendment law when it held that the amendment protected, at the very least, a right to keep a firearm in one’s own home for the purpose of self-defense. Contrary to what many critics of the opinion have said, this holding did not reverse any long history of Second Amendment case law, primarily because before Heller there was not a significantly large compendium of cases ruling 0n that part of the Bill of Rights. The number of Supreme Court decisions on the issue prior to that point could be counted on one hand and still leave fingers left over, and the lower court decisions typically involved issues that only tangentially raised core Second Amendment issues. It wasn’t until the parties involved in the Heller decision managed to put together a legal argument that challenged one of the most inanely restrictive handgun laws in the country utilizing the historical record that led to the Second Amendment that it was possible for Courts to even consider the arguments in the first place.
Once the Supreme Court ruled that the Second Amendment protected the keep a gun in one’s home for self-defense in Heller, and then ruled that, like the rest of the Bill of Rights, the Second Amendment applied to the states in McDonald v. Chicago, it was inevitable that the day would come when the Federal Courts in general, and the Supreme Court specifically, would be required to rule on the issue of whether or not the right recognized in Heller extended beyond the confines of 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 unlikely that a Supreme Court that still treats Heller as good law will decide that individuals only have Second Amendment rights inside their home. How far the right extends beyond that is something we’ll have to wait to find out.
Here’s the decision of the 9th Circuit panel, and the dissent:
