Originally published June 11, 2016
On Thursday, the Ninth Circuit Court of Appeals in the case of Peruta v. County of San Diego upheld California’s restrictive conceal-carry regulation of firearms. In doing so, the appellate court explicitly ruled that the Second Amendment does not even apply to concealed weapons that are carried in public. Curiously, the court took no position on whether one may openly carry a gun in public – because the issue was not before the court.
The Supreme Court in its landmark 2008 District of Columbia v. Heller decision only went so far as finding an individual, constitutional right to possess a gun in one’s home for self-defense. There has been debate ever since as to whether Heller would be extended outside the home to public spaces. Heller’s author, the late Associate Justice Antonin Scalia, conceded in his majority decision that reasonable gun regulations were still possible. And in 2014, the High Court in Drake v. Jerejian rejected review of a New Jersey law that placed severe restrictions on both the open and concealed carrying of handguns in public.
Up until this week, a three judge panel of the Ninth Circuit in Peruta had been one of only two federal appellate courts since Heller that had found a Second Amendment right to use a firearm in public – which decision was vacated by the full court that reconsidered the case and came to the opposite conclusion. The Ninth Circuit is now in accord with the Second, Third, Fourth and Tenth Circuits that have ruled similarly. And the discordant Seventh Circuit case, Moore v Madigan, that had earlier struck down a conceal-carry law in Illinois was never appealed to the Supreme Court after the state changed its permitting requirements to comply with the court’s decision.
Peruta was brought by gun-rights advocates to challenge California’s conceal-carry law. For an applicant to receive a permit in California to carry a concealed handgun in public, the local sheriff has to find “good cause” based upon a prescribed set of criteria – such as personal defense where there are documented threats or business owners or employees in high-risk professions. When the San Diego sheriff disagreed that Mr. Peruta had shown sufficient justification for such a conceal-carry permit, Peruta sued to challenge the law – and either invalidate or change it to mandate that the sheriff shall have no discretion but “shall issue” the permit upon request. A three judge panel of the normally liberal Ninth Circuit agreed with Peruta and placed California’s concealed weapons law in jeopardy based upon the Second Amendment.
But not so fast.
In its en banc review, the Ninth Circuit conducted an exhaustive review of the original meaning of laws regulating the right to keep and bear arms leading up to passage of the Second Amendment. In other words, the court used “originalist” rules of constitution interpretation championed by Justice Scalia and “engage[d] in the same historical inquiry as Heller. . . .” And it found a plethora of laws dating well back to Edwardian England through colonial and 18th and 19th century America absolutely forbidding the carrying of concealed weapons in public. Thus, the court’s conclusion that the Second Amendment does not extend to conceal-carry restrictions.
As the court put it,
“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 Ninth Circuit did not opine on whether the Second Amendment provides protection for open carrying of weapons – which could lead to an anomalous result: if one is going to pack heat in public, one might only receive constitutional protection when carrying openly. A more satisfying ruling might have noted that Heller only found an individual right to bear arms in personal defense inside, but not outside, of one’s house.
California Attorney General Kamala Harris played a key role in intervening in the Peruta case to request en banc review of the entire Ninth Circuit when the San Diego sheriff declined to do so.
Given its denial of certiorari in Drake in 2014, while Justice Scalia was still very much alive and active, the Supreme Court seemed to evince hesitancy about wading back into Second Amendment jurisprudence. Now the High Court is down one justice and split ideologically four to four. Under these circumstances, it’s hard to imagine whether the Supremes would even want to review Peruta and if so, how they would resolve it short of a tie – which, by the way, would affirm this week’s Ninth Circuit’s ruling. So as of today, the scope of the Second Amendment remains restricted to the home.