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EDITORIAL: Another good day for the Second Amendment

The 9th Circuit upholds ‘open or concealed’ carry as a fundamental right

- - Friday, February 14, 2014

We live in strange times. Sometimes the recognition of the obvious becomes a cause for celebration. The 9th U.S. Circuit Court of Appeals in San Francisco, the most liberal appeals court in the nation, has declared that "the right of the people to keep and bear arms shall not be infringed," and that means that California can't infringe the right of the people to bear arms.

It's a landmark ruling, likely to set the stage for a second round of restoration of the rights that the U.S. Supreme Court identified in its Heller decision six years ago.

Over the past several decades, lawyers and judges have rendered the clear and unmistakable words of the Second Amendment a dead letter. In California, Maryland and a handful of other states, a citizen may "bear arms" only inside the walls of his own home, or, as the 9th Circuit's Judge Diarmuid O'Scannlain put it, the right is limited to a "father stuffing a six-shooter in his pajama's pocket before heading downstairs to start the morning's coffee."

As rights go, that's not particularly useful.

California had nullified "carry outside the home" with a law that a citizen may obtain permission to carry a concealed handgun only if he proves himself of "good moral character" and shows "good cause" for obtaining a gun.

In practice, this gives the local sheriff the authority to dispense "carry permits" as a perk to celebrities and campaign donors. It's a crony arrangement that denies constitutional rights to all but cronies.

Judge O'Scannlain, writing for the majority, said the weight of history and common sense argue against this corrupt understanding of the Second Amendment. He said the Supreme Court decided that the Heller case had established that the Second Amendment "is, and always has been" an individual right oriented toward self-defense.

Because bearing arms outside the home for self-defense is a core element of this right, laws such as those in California, which infringe that right, must be struck down.

The 9th Circuit insists that the "the typical responsible, law-abiding citizen" be allowed "to bear arms in public for the lawful purpose of self-defense."

Many sheriffs won't grant concealed-carry permits to someone worried only about his or his family's personal safety." Open carry of firearms is prohibited except in severely limited circumstances.

In language as clear and convincing as in the Heller case, the 9th Circuit majority ruled that no state may invalidate a constitutional right in this way. California must allow either open carry, or concealed carry, for self-defense.

Though the 9th Circuit has produced the most powerful and persuasive argument on the issue of carry rights, it isn't the only appeals court to speak to the issue.

The 2nd Circuit in New York, the 3rd Circuit in Philadelphia and the 4th Circuit in Richmond have reached conclusions that render the bearing of arms guarantee in the Second Amendment essentially meaningless, reprising the discredited argument that gun rights apply only to militias, not to "the people."

The Supreme Court has buried the militia fallacy. When these latest cases get to the high court, the careful reasoning of the 9th Circuit is likely to carry the day.