Appeals Court Rules No Constitutional Right to Carry Concealed Guns

A divided federal appeals court in San Francisco ruled Thursday, June 9, 2016, that people do not have a Second Amendment right to carry concealed weapons in public. This decision in Peruta vs. County of San Diego, et. al. is likely to be challenged by gun-rights advocates.

In 2014, a three-judge panel of the appeals court held that the Second Amendment “does require that the states permit some form of carry for self-defense outside the home.”

Edward Peruta
Edward Peruta

But, upon the request of California Attorney General Kamala Harris, the Ninth Circuit voted to rehear the case, with more judges participating. That rehearing before 11 judges led to the June 9th decision.

The 11-judge panel of the 9th U.S. Circuit Court of Appeals, which covers nine Western states, reversed the prior decision, and issued the 7-4 ruling, upholding a California state law requiring applicants to show “good cause,” such as a fear of personal safety, in order to obtain a permit to carry a concealed firearm.

The judges went even further and dismissed the argument that a right to carry a concealed weapon was contained in the Second Amendment.

“We hold that the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public,” Judge William Fletcher wrote in the majority opinion.

Lawmakers are free to enact “any prohibition or restriction a state may choose” on the carrying of concealed guns, Judge Fletcher said.

Basically, the court ruled that “the right of the people to keep and bear Arms” does not apply to hiding them.

The appeals court looked to history to resolve gun rights issues, following the U.S. Supreme Court’s method of historical analysis. The appeals court based its decision on the history of the rights of gun owners, from medieval England to the birth of our nation and through the Civil War. In their analysis, the Court found that local laws almost universally prohibited carrying concealed firearms in public.

The Ninth Circuit majority traced concealed-carry licenses to 1299 England, when King Edward I told his sheriffs to prohibit anyone from “going armed within the realm without the king’s special licence.”

The Ninth Circuit also cited the 1689 English Bill of Rights, which said that “the [English] subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law.” They cite this to say that the English Bill of Rights has “long been understood to be the predecessor to our Second Amendment.”

This Ninth Circuit decision then declares that “[t]o the degree that the English Bill of Rights is an interpretive guide to our Second Amendment, the critical question is the meaning of the phrase ‘as allowed by law.’”

They then cite Heller and say: [W]ith respect to the case now before us, the specific question is whether the arms that are ‘allowed by law’ – that is, the arms Protestants had the right to bear – included concealed firearms. The history just recounted demonstrates that carrying concealed firearms in public was not ‘allowed by law.’ Not only was it generally prohibited by the statute of Northampton, but it was specifically forbidden by the statute enacted under Henry VIII, and by later proclamations of Elizabeth I and James I.”

The court also cited restrictions on carrying concealed weapons that several American colonies adapted from English law centuries later. After the Civil War, at least five state constitutions explicitly stated that the right to carry concealed weapons could be prohibited by the legislature.

“The carrying of concealed weapons was consistently forbidden in England beginning in 1541; was consistently forbidden in the American colonies; and was consistently forbidden by the states,” Judge Fletcher wrote.

They cited a 1897 ruling by the U.S. Supreme Court that “the right of the people to bear arms is not infringed by laws prohibiting the carrying of concealed weapons.”

“Because the Second Amendment does not protect in any degree the right to carry concealed firearms in public, any prohibition or restriction a state may choose to impose on concealed carry—including the requirement of ‘good cause,’ however defined—is necessary allowed by the Amendment,” the 9th Circuit said.

The court declined to say whether the Second Amendment of the Constitution protects openly carrying a gun in public. It said that question was not at issue in the case.

A Second Amendment right to carry a firearm openly in public may exist, but the Supreme Court hasn’t answered that question, Judge Fletcher wrote.

Many states have similar restriction on concealed carry, and the lower courts are divided on whether they violate the Second Amendment.

If the appeal court’s decision is challenged, it could set up a Supreme Court battle, one that the Supreme Court has not taken up in the wake of its landmark Heller ruling in 2008 that found a right to own a gun at home for self-defense was a Constitutionally protected right under the Second Amendment.

Critics have long charged that the 9th Circuit has a history of liberal-leaning decisions. The June 9th ruling overturns a 2014 ruling by a smaller panel of the appellate court. The case originated when a sheriff in San Diego County denied gun owners a concealed-carry license because, in his opinion, the applicants didn’t meet California’s requirements that applicants show “good cause,” such as having a restraining orders against an attacker, or working in the firearms industry, or being a jeweler who transports merchandise, or being an attorney, in order to get a permit.

The San Diego Sheriff’s Department License Division, describes the “good cause” this way: “Good Cause is defined by this County to be a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way. Simply fearing for one’s personal safety alone is not considered good cause….”

San Diego County defines the term as “a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way,” according to an affidavit filed by a county official in the case.

The 13 page application for a concealed carry license asks the following:

If the CCW license is desired for self-protection, the protection of others, or for the protection of large sums of money or valuable property, you are required to explain and provide good cause for issuance of the license. For example, has your life or property been threatened or jeopardized?

Celebrities who fear for their safety and those who routinely carry large amounts of cash were often given permits.

Judge Consuelo M. Callahan, dissenting in the ruling, said the restrictions were tantamount to an infringement of the Second Amendment rights of Americans.

“In the context of present-day California law, (open carry is prohibited), the Defendant counties’ limited licensing of the right to carry concealed firearms is tantamount to a total ban on the right of an ordinary citizen to carry a firearm in public for self-defense,” Callahan wrote.

“Because the majority eviscerates the Second Amendment right of individuals to keep and bear arms as defined by Heller and reaffirmed in McDonald, I respectfully dissent,” Callahan said.

Gun rights groups blasted the decision.

“Once again the 9th Circuit showed how out of touch it is with mainstream Americans,” C.D. “Chuck” Michel, president of the California Rifle and Pistol Association – one of the plaintiffs in the case — said in a statement. “This decision will leave good people defenseless, as it completely ignores the fact that law-abiding Californians who reside in counties with hostile sheriffs will now have no means to carry a firearm outside the home for personal protection.”

Chris W. Cox, executive director of the National Rifle Association Institute for Legislative Action, said the ruling revealed the Ninth Circuit to be out of touch with mainstream Americans and could endanger Californians in counties with “hostile” sheriffs, he said. “This decision will leave good people defenseless,” he also said.

However, anti-gun groups hailed the decision as a victory in their fight to limit or eliminate guns in America.

The New York-based gun control organization Everytown called the ruling “a major victory for public safety,” while California Attorney General Kamala Harris hailed “a victory for public safety and sensible gun safety laws.”

During oral arguments before the panel, Paul Clement, an attorney for the plaintiffs, argued that the self-defense standard should be sufficient and asking for more violates the Second Amendment right to bear arms.

California Solicitor General Edward DuMont countered that there was a long and rich tradition of restricting concealed weapons in cities and towns. California officials sought to intervene in the case after the San Diego sheriff declined to appeal.

California officials said loosening concealed weapons permitting standards and allowing more people to carry guns threatens law enforcement officials and endangers the public.
Clement countered that there was no evidence that crime went up in counties such as Fresno and Sacramento that had more permissive “good cause” standards.

The ruling aligns the court with three other regional appeals courts that have upheld good-cause requirements: the Second, Third and Fourth circuits. The Chicago-based Seventh Circuit ruled in 2012 that the right to bear arms “implies a right to carry a loaded gun outside the home.”

Many gun-law experts, Second Amendment scholars and others expect the law on concealed-carry outside the home ultimately will be settled by the U.S. Supreme Court. The court has so far turned away several opportunities to take up the issue.

Ms. Harris said in an emailed statement that the ruling “ensures that local law enforcement leaders have the tools they need to protect public safety by determining who can carry loaded, concealed weapons in our communities.”

This decision seems to be at odds with the appeal court’s decision issued in another case just a few weeks earlier that seemed to side with the Second Amendment.

In that case, the Ninth Circuit Court was asked to rule on a “zoning ordinance” in Alameda County which would have placed severe restrictions on the opening of any new gun shop if it was within 500 feet of a wide variety of other types of structures. The wording of the majority opinion drew a line in the sand regarding the sanctity of the Second Amendment.

“Writing for the majority, Judge Diarmuid O’Scannlain said that the “right of law-abiding citizens to keep and to bear arms is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees…”

The 9th Circuit has jurisdiction over (and its decisions affect) Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington as well as Guam and Northern Mariana Islands. This particular decision will affect only those jurisdictions that have the “good cause” requirement to obtain a concealed carry license.

The next step for this case is an expected appeal to the U.S. Supreme Court. If the high court were to take this case, it could decide the future of gun rights in America. Clearly, the next president of the United States will have the chance to shape the court that might make this decision.

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