Supreme Court Declines To Accept Yet Another Second Amendment Case
Continuing a pattern that goes back seven years now, the Supreme Court has once again declined to hear an appeal involving the Second Amendment, in this case, a ruling upholding California’s strict statute governing who may obtain a license to carry a concealed weapon in public:
WASHINGTON — The Supreme Court on Monday declined to hear a Second Amendment challenge to a California law that places strict limits on carrying guns in public.
As is their custom, the justices gave no reasons for deciding not to hear the case. The court has turned away numerous Second Amendment cases in recent years, to the frustration of gun rights groups and some conservative justices.
Justice Clarence Thomas, joined by Justice Neil M. Gorsuch, dissented. The court’s refusal to hear the case, Justice Thomas wrote, “reflects a distressing trend: the treatment of the Second Amendment as a disfavored right.”
In 2008, in District of Columbia v. Heller, the Supreme Court ruled that the Second Amendment protects an individual right to keep guns at home for self-defense.
Since then, the court has said little else about what other laws may violate the Second Amendment. In the lower courts, very few challenges to gun control laws since the Heller decision have succeeded.
But legal experts say that it is only a matter of time before the court confronts the question of whether and how the Second Amendment applies outside the home.
The question has divided the lower courts. The federal appeals court in Chicago struck down an Illinois law that banned carrying guns in public, while federal appeals courts in New York, Philadelphia and Richmond, Va., upheld laws that placed limits on permits to carry guns outside the home. The Supreme Court turned away appeals in all three cases.
The California case, Peruta v. California, 16-894, concerned a state law that essentially bans carrying guns openly in public and allows carrying concealed weapons only if applicants can demonstrate good cause. The challengers, several individuals and gun rights groups, sued San Diego and Yolo Counties, saying that officials there interpreted good cause so narrowly as to make it impossible to carry guns in public for self-defense.
San Diego, for instance, defined good cause to require proof that the applicant was “in harm’s way,” adding that “simply fearing for one’s personal safety alone is not considered good cause.”
In a 7-to-4 ruling, the United States Court of Appeals for the Ninth Circuit, in San Francisco, said there was no Second Amendment right to carry a concealed weapon.
“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,” Judge William A. Fletcher wrote for the majority.
The court did not decide whether the Second Amendment allows leeway for states to ban carrying guns in public.
“There may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public,” Judge Fletcher wrote. “The Supreme Court has not answered that question, and we do not answer it here.”
In dissent, Judge Consuelo M. Callahan said the majority had engaged in a kind of shell game.
“In the context of California’s choice to prohibit open carry,” she wrote, “the counties’ policies regarding the licensing of concealed carry are tantamount to complete bans on the Second Amendment right to bear arms outside the home for self-defense, and are therefore unconstitutional.”
The case was notable in no small part because it was joined by a dissent from the denial of certiorari by Justice Thomas, in which Justice Gorsuch joined. Essentially, the dissent argues that the Court should have accepted the case given its previous holdings on the Second Amendment and that California’s requirements for obtaining a concealed-carry permit were too strict to survive Second Amendment scrutiny:
Had the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result. This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion. As we explained in Heller, to “bear arms” means to “‘wear,bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.'” 554 U. S., at 584 (quoting Muscarello v. United States, 524 U. S. 125, 143 (1998) (GINSBURG, J., dissenting); alterations and some internal quotation marks omitted). The most natural reading of this definition encompasses public carry. I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen. See Drake v. Filko, 724 F. 3d 426, 444 (CA3 2013) (Hardiman, J., dissenting) (“To speak of ‘bearing’ arms solely within one’s home not only would conflate ’bearing’ with ‘keeping,’ in derogation of the [Heller] Court’s holding that the verbs codified distinct rights, but also would be awkward usage given the meaning assigned the terms by the Supreme Court”); Moore v. Madigan, 702 F. 3d 933, 936 (CA7 2012) (similar).
The relevant history appears to support this understanding. The panel opinion below pointed to a wealth of cases and secondary sources from England, the founding era, the antebellum period, and Reconstruction, which together strongly suggest that the right to bear arms includes the right to bear arms in public in some manner. See 742 F. 3d, at 1153-1166 (canvassing the relevant history in detail); Brief for National Rifle Association as Amicus Curiae 6-16. For example, in Nunn v. State, 1 Ga.243 (1846)—a decision the Heller Court discussed extensively as illustrative of the proper understanding of the right, 554 U. S., at 612—the Georgia Supreme Court struck down a ban on open carry although it upheld a ban on concealed carry. 1 Ga., at 251. Other cases similarly suggest that, although some regulation of public carry is permissible, an effective ban on all forms of public carry is not. See, e.g., State v. Reid, 1 Ala. 612, 616-617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).
Finally, the Second Amendment’s core purpose further supports the conclusion that the right to bear arms extends to public carry. The Court in Heller emphasized that “self-defense” is “the central component of the [Second Amendment] right itself.” 554 U. S., at 599. This purpose is not limited only to the home, even though the need for self-defense may be “most acute” there. Id., at 628. “Self-defense has to take place wherever the person happens to be,” and in some circumstances a person may be more vulnerable in a public place than in his own house. Volokh, Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1515 (2009).
Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively. Twenty-six States have asked us to resolve the question presented, see Brief for Alabama et al. as Amici Curiae, and the lower courts have fully vetted the issue. At least four other Courts of Appeals and three state courts of last resort have decided cases regarding the ability of States to regulate the public carry of firearms. Those decisions (plus the one below) have produced thorough opinions on both sides of the issue. See Drake, 724 F. 3d 426, cert. denied sub nom. Drake v. Jerejian, 572 U. S. ___ (2014); 724 F. 3d, at 440 (Hardiman, J., dissenting); Woollard v. Gallagher, 712 F. 3d 865 (CA4), cert. denied, 571 U. S. ___ (2013); Kachalsky v. County of Westchester, 701 F. 3d 81 (CA2 2012), cert. denied sub nom. Kachalsky v. Cacace, 569 U. S. ___ (2013); Madigan, 702 F. 3d 933; id., at 943 (Williams, J., dissenting); Commonwealth v. Gouse, 461 Mass. 787, 800-802, 965 N. E. 2d 774, 785-786 (2012); Williams v. State, 417 Md. 479, 496, 10 A. 3d 1167, 1177 (2011); Mack v. United States, 6 A. 3d 1224, 1236 (D. C. 2010). Hence, I do not see much value in waiting for additional courts to weigh in, especially when constitutional rights are at stake.
As I stated, it’s not typical for Justices to issue dissents in cases where the Court has declined to review a case at all. Typically, what happens is that the Court announces its decision on specific cases presented for review in its weekly list of Orders in pending cases. In that document, which routinely lists far more denied appeals than cases in which appeals have been accepted, the cases where appeals are denied are typically just listed with no comment at all, and it is generally never noted what the vote breakdown on certiorari may have been. The best that we can say in this case and in the others for which appeals have been denied is that there were not four Justices who were willing to vote to accept the appeal and that there were at least two, Thomas and Gorsuch, who would have granted the request for an appeal. It’s possible that there was a third, most likely it would have been Justice Alito, but since only those two Justices signed on to the dissent we can’t be sure of that at all. In a handful of cases, though, there will be a Justice who decides that it is necessary to argue in a written dissent that the Court should have accepted the appeal. The purpose of these dissents is typically to set forth on the record why the court needs to rule on this issue, thus preserving the argument for a future case, and to send a signal to litigants in similar cases that may be pending in lower courts and anticipating the idea that they took may one day be seeking Supreme Court review of their case. Whether it’s successful or not depends in large part on what type of case makes it to the Supreme Court next, and whether these Justices are able to persuade their brethren to accept the appeal in that case in order to get the matter before the Court.
This isn’t the first time that the Supreme Court has declined to hear an appeal involving Second Amendment issues. Indeed, since the Court’s 2010 decision in McDonald v. Chicago, in which it ruled that the holding in United States v. Heller applied to the states, the Court has declined to hear appeals in almost every Second Amendment case that has been put before it. This has included the Court’s 2013 decision to decline an appeal in a case involving New York State’s laws regarding carrying guns in public , a decision in 2014 to hear a similarly restrictive New Jersey law regarding carrying concealed weapons, a 2015 case involving San Francisco’s law regulating handguns, and a 2016 decision regarding laws adopted by New York and Connecticut in the wake of the shooting at Sandy Hook Elementary School. As with this case, those last two cases also came with strongly worded dissents from Justices Thomas and Scalia arguing that the Court should have accepted the appeals. In fact, the only major case involving guns that the Court has accepted since its decision in McDonald involved one where a man was convicted for lying on his application for a background check when he purchased a gun that he quickly then resold to another party who would have been otherwise ineligible to buy a weapon. Additionally, Justice Thomas’s dissent lists a number of other cases in which a Circuit Court of Appeals or state Supreme Court has ruled on a Second Amendment issue where the Court has denied review.
As Justice Thomas argues, at some point it seems clear that the Justices are going find themselves forced to accept a review in one of these cases. There have already been situations that have created exactly the kind of Circuit split that generally leads the Court to accept a case for review, and the patten we’ve seen to date indicates that there will only be more of those in the future. From reading some of those opinions, it is clear that the Circuit Courts are looking to the Supreme Court to provide at least some guidance on an issue that has become more and more common on their dockets, At some point, the law will become so completely inconsistent across the nation that the Supreme Court will have to step in to rule on the matter, even if it is to merely state that concealed-carry regulation is an area where the states ought to have discretion to craft rules that fit them. Until that happens, these cases will continue to come before the Court until one of them is finally accepted for review and the Court provides the public and the lower courts with guidance on an important Constitutional issue.
Here’s Justice Thomas’s dissent: