An Unexpected Win

Today, the 9th Circuit Court of Appeals delivered a surprising verdict in the case of Peruta v. San Diego [pdf]. California’s requirement that applicants for concealed carry permits prove “good cause” has been ruled unconstitutional. 

The district court erred in denying the applicant’s motion for summary judgment on the Second Amendment claim because San Diego County’s “good cause” permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense. [p. 77]

Wow. Nobody really expected that from this court, and I really didn’t expect this from Judge O’Scannlain, who was less than helpful in Nordyke.

This ruling places the 9th Circuit in conflict with the 2nd Circuit in Kachalsky, the 3rd Circuit in Drake, and the 4th Circuit in Woollard. Judge O’Scannlain chastised the other Circuits for avoiding a textual and historic examination.

By evading an in-depth analysis of history and tradition, the Second, Third, and Fourth Circuits missed a crucial piece of the Second Amendment analysis. They failed to comprehend that carrying weapons in public for the lawful purpose of self defense is a central component of the right to bear arms. [p. 68]

He goes into an exhaustive review of 19th Century precedents to affirm that the right to keep and bear arms includes carrying a gun outside the home.

(…) the majority of nineteenth century courts agreed that the Second Amendment right extended outside the home and included, at minimum, the right to carry an operable weapon in public for the purpose of lawful self-defense. Although some courts approved limitations on the manner of carry outside the home, none approved a total destruction of the right to carry in public. [p.32]

What does it mean to “destroy” a right? According to O’Scannlain, it happens “when exercise of the right is limited to a few people, in a few places, at a few times.” 

Clearly, the California scheme does not prevent every person from bearing arms outside the home in every circumstance. But the fact that a small group of people have the ability to exercise their right to bear arms does not end our inquiry. Because the Second Amendment “confer[s] an individual right to keep and bear arms,”we must assess whether the California scheme deprives any individual of his constitutional rights. Thus, the question is not whether the California scheme (in light of San Diego County’s policy) allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding “no.” [pp. 53-54]

Ouch. Heller (and before that, Nunn and State v. Chandler) implied that a ban on concealed carry might pass muster, and the defendants fall back on that argument. However, those cases found such a ban acceptable because citizens still had the option of carrying arms openly. The problem is, California banned open carry back in 2012.

O’Scannlain didn’t miss that point.

The second, somewhat-related mistake in the County’s argument is that it reads too much into Heller’s ostensible blessing of concealed-carry restrictions. A flat-out ban on concealed carry in a jurisdiction permitting open carry may or may not infringe the Second Amendment right (…) but whether a state restriction on both concealed and open carry overreaches is a different matter. To that question,Heller itself furnishes no explicit answer. But the three authorities it cites for its statement on concealed-carry laws do. (…) For these reasons, Heller’s favorable mention of concealed-carry restrictions is not the silver bullet the County had hoped it was, at least not in this case. [pp. 58-62]

So, we’re left with a two-pronged ruling. The 2nd Amendment clearly protects a right to carry weapons outside the boundaries of the home for self-defense, and regulations that severely restrict that right are unconstitutional. Given the extent of research and argument, it really feels like O’Scannlain means for this to be read by the Supreme Court.

Since his opinion directly contradicts several other Circuits, such review is almost guaranteed. While they may not hear this particular case, it’s going to have an influence.

Thanks are due all around to the NRA team of Chuck Michel and Paul Clement, as well as the folks at the California Rifle and Pistol Association Foundation. Clayton Cramer deserves credit (and was cited twice), as does Eugene Volokh, who was cited at least three times.