The 9th U.S. Circuit Court of Appeals on Thursday upheld a California law restricting the right of ordinary citizens to carry concealed weapons in public. The court split 7-4 in a case that could provide a tempting target for U.S. Supreme Court review. The majority concluded that local officials can deny some concealed-carry permit requests. The dissenters said the law violates the Second Amendment. A 4-4 tie by the Supreme Court would leave this ruling intact.
However, the US Supreme Court invalidated a handgun ban in the past with this explanation:
[T]he inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one's home and family,” . . . would fail constitutional muster. District of Columbia v. Heller, 554 U.S. 570, 628 (2008)
Likewise, the Fourteenth Amendment also has as one of its objectives the protection of the right to keep firearms and to preserve the sanctity of the home from searches and seizures. See Heller, 554 U.S. at 614-15; McDonald v. City of Chicago, 130 S.Ct. 3020, 3038-40 (2010). “The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights.” Planned Parenthood v. Casey, 505 U.S. 833, 847-48 (1992) (referring to “the specific guarantees elsewhere provided in the Constitution [such as] . . . the right to keep and bear arms”).
In Peruta v. County of San Diego, Judge William Fletcher held that “that the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” Slip at p. 11.
The 7-4 ruling upheld California’s broad restrictions on concealed-carry use in their entirety. Under current California law, a member of the general public may not carry a concealed weapon in public unless he or she has been issued a license. An applicant for a license must satisfy a number of conditions. Among other things, the applicant must show “good cause” to carry a concealed firearm. California law authorizes county sheriffs to establish and publish policies defining good cause. The sheriffs of San Diego and Yolo Counties published policies defining good cause as requiring a particularized reason why an applicant needs a concealed firearm for self-defense.
The en banc court held that the history relevant to both the Second Amendment and its incorporation by the Fourteenth Amendment lead to the same conclusion: The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment. Therefore, 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 a requirement of “good cause,” however defined — is necessarily allowed by the Amendment. The en banc court stated that there may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public, but the Supreme Court has not answered that question.
Dissenting, JudgeCallahan, joined by Judge Silverman Judge Bea, and by Judge N.R. Smith stated that in the context of present-day California law, 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. Thus, plaintiffs’ Second Amendment rights have been violated. Additionally, Judge Silverman, joined by Judge Bea, would hold that the challenged laws are unconstitutional under the Second Amendment because they do not survive any form of heightened scrutiny analysis. Dissenting, Judge N.R. Smith wrote separately only to express his opinion that the appropriate remedy is to remand this case to the district courts to allow them to initially determine and apply an appropriate level of scrutiny.