Americans have no constitutional right to carry concealed firearms outside the home, a federal appellate court ruled Thursday in a decision that immediately came under sharp criticism from Second Amendment advocates.
In a closely watched en banc ruling, the San Francisco-based 9th U.S. Circuit Court of Appeals upheld a California law that requires a gun owner to show “good cause” in order to obtain a permit to carry a concealed handgun in public. What constitutes good cause is left up to county sheriffs, and the 7-4 decision overturns a ruling by a three-judge panel that said the requirements adopted by sheriffs in San Diego and Yolo counties were unconstitutional.
“We hold that the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public,” Judge William A. Fletcher wrote in a 52-page opinion for the majority.
The plaintiffs immediately announced plans to appeal to the Supreme Court, but the death of Justice Antonin Scalia has raised questions of how the eight-judge high court will deal with hot-button gun cases.
The California Rifle & Pistol Association said the 9th Circuit decision was out of touch with mainstream America.
“This decision will leave good people defenseless, as it completely ignores the fact that law-abiding Californians who reside in counties with hostile sheriffs will now have no means to carry a firearm outside the home for personal protection,” the group said in a statement.
But in the absence of a blanket Second Amendment right, legislators have the power to pass “any prohibition or restriction a state may choose” on the carrying of concealed guns, said Judge Fletcher, an appointee of President Clinton.
Federal appeals courts have upheld similar restrictive “good reason” requirements in New Jersey, New York and Maryland.
An ongoing case is challenging a similar requirement in the District of Columbia. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on Thursday stayed a lower-court ruling that banned the city from enforcing its requirements.
Dissenting 9th Circuit judges were sharply critical of the majority’s decision to address only the concealed-carry restrictions. Judge Consuelo M. Callahan wrote that the limitations set up and knocked down “an elaborate straw argument.”
The county policies in California for those applying for concealed-carry licenses “are tantamount to complete bans on the Second Amendment right to bear arms outside the home for self-defense, and are therefore unconstitutional,” wrote Judge Callahan, who was appointed by President George W. Bush.
Among the plaintiffs in the case are Edward Peruta of San Diego County and Adam Richards of Yolo County, who sought to carry concealed firearms for self-defense but were denied concealed-carry licenses in 2009 after they were unable to show good cause. Their challenge was backed by major gun rights organizations and opposed by national gun control advocates.
Gun control advocates celebrate
After a three-judge panel sided with the plaintiffs, California Attorney General Kamala Harris asked the full court for reconsideration of the case.
Ms. Harris and gun control advocates, including Everytown for Gun Safety, heralded the ruling Thursday as a public safety victory.
“The devastating impact gun violence has on our communities underscores the need for common sense gun safety laws,” said Ms. Harris, a Democrat who this week earned a spot in the runoff election ballot for an open U.S. Senate seat. “The ruling ensures that local law enforcement leaders have the tools they need to protect public safety by determining who can carry loaded, concealed weapons in our communities.”
An attorney for the plaintiffs confirmed that he is considering an appeal to the Supreme Court but indicated that future challenges in the state might need to focus on the right to carry a firearm in the open rather than in a concealed manner.
Thursday’s ruling “specifically avoided answering the critical legal question of whether, if concealed carry is prohibited, some form of open carry of firearms must be allowed,” said lawyer Chuck Michel. “California law bans open carry, so the constitutionality of that ban will now have to be tested.”
It was unclear whether the plaintiffs might try to launch that particular challenge, but Mr. Peruta, a former police officer, told Mother Jones that in the wake of the decision he intended to carry his firearm openly.
“I have permits to carry, and from this day forward I will be carrying openly,” he said.
The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
Although gun rights supporters may be looking to the Supreme Court for help, Ilya Shapiro, a constitutional law analyst at the Cato Institute, notes that the justices have shown little interest in taking up gun cases.
“The Supreme Court, when it had nine members, had no appetite for fleshing out the Second Amendment, so I don’t think it will now,” said Mr. Shapiro, noting the death of Scalia, who authored the landmark 2008 District of Columbia v. Heller decision that said the Second Amendment includes an individual’s right to own a gun.
“The court has had plenty of opportunities with very good cases, and it’s declined them,” Mr. Shapiro said.
Whether or not the Supreme Court would take such a case could depend in part on who is sworn in as the next justice, he said.