MILLER: Court gives NRA a big win for concealed carry gun rights in California

Ninth Circuit decision in Petura v. San Diego sets up Supreme Court to resolve conflict between lower courts

Second Amendment advocates won a major victory on Thursday when the Ninth Circuit Court of Appeals ruled that the individual right to bear arms applies outside the home.

Specifically, the court said that San Diego’s restrictive concealed carry laws that require citizens to prove a need to defend themselves are unconstitutional.

SEE ALSO: Federal court deals gun-grabbers a blow in San Diego concealed carry ruling

The case of Edward Peruta, et al v. County of San Diego, et al dealt with a concealed carry permitting process that made it virtually impossible for the plaintiffs to get a license. (California already has a total ban on open carry.)

Writing for the majority, Judge Diarmuid F. O'Scannlain concluded that “San Diego County’s ‘good cause’ permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.” The court reversed the district court’s decision.

The National Rifle Association (NRA) funded the plaintiffs’ legal battle. Paul Clement was the lead attorney in the case and argued it before the Ninth Circuit.

“One of reasons the NRA thought this was a good case to bring was precisely the combination of California state law banning open carry and San Diego policy on licensing for concealed carry made it quite definitive that an ordinary, lawful citizen with an interest in self defense couldn’t carry no matter what,” Mr. Clement told me in an interview late Thursday.

“This decision is a very significant case because most of the courts of appeals have upheld the carry laws,” the former solicitor general during the Bush administration explained.

“Once the Supreme Court said in Heller and McDonald that the Second Amendment protects the individual right to keep and bear arms, then you can no longer expect business as usual.”

SEE ALSO: MILLER: NRA’s ‘American Rifleman’ surges to top 25 magazines in America

This is the strongest, most throughly documented ruling at the federal appeals court level in opposition to the controversial laws on restricting carry in “may issue” states. The two majority judges said their view was “akin” to the Seventh Circuit’s interpretation in Moore v. Madigan, which overturned the ban on all carry rights in Illinois in Dec. 2012.

The ruling is in opposition to decisions in the Second, Third, and Fourth Circuits in Drake v. Filko (New Jersey), Woollard v. Sheridan (Maryland) and Kachalsky v. Cacace (New York.)

This case will likely push the Supreme Court to weigh in to work out the various conflicts on the circuit level. The high court has not ruled on what restrictions on an individual’s right to bear arms are constitutional.

Alan Gura is the lead attorney for all these other “bear” cases that are being brought by the Second Amendment Foundation. 

“It’s a refreshing and important victory for common sense,” he told me Thursday about the San Diego decision. “States can regulate the carrying of handguns, but they cannot turn this fundamental right into a special privilege dispensed by the police at their whim.”

The San Diego sheriff requires a person to prove that he has certain circumstances that are outside the “mainstream” that necessitate carrying a gun for self defense. Concern for one’s personal safety alone does not satisfy the “good cause” measure.

So a Californian has to provide documentation such as a restraining order or letter from law enforcement determining a pressing need for self defense. Few pass such a high bar.

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