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.
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.”
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.
This is the similar to laws in other “may issue” states such as New Jersey and Maryland, where basically no one can get a carry permit.
The District of Columbia is the last place in the nation with a total ban on carry outside the home. That law is being challenged in Palmer v. D.C., which is another one of Mr. Gura’s cases,
The Ninth Circuit indicated it believes the Supreme Court would back up its lengthy ruling. It likened the San Diego laws to D.C.’s outright ban on handguns, which was overturned after 30 years in 2008 in the landmark Heller case.
Judge O’Scannlain wrote that, “Heller teaches that a near-total prohibition on keeping arms (Heller) is hardly better than a near-total prohibition on bearing them (this case), and vice versa. Both go too far.”
This case is important because it turns on its head the whole concept that a citizen has to prove to the government that he has a good reason to exercise his Second Amendment right to carry a gun for self defense.
Rather, the Constitution is written to codify that God gives us individual rights, and the government has to give a good reason to not recognize them.
It is only a matter of time before every state — and the nation’s capital — will be told by the courts that the right to keep and bear arms shall not be infringed in America.
Emily Miller is senior editor of opinion for The Washington Times and author of “Emily Gets Her Gun” (Regnery, 2013).