Analysis: Government’s laughable arguments in 9th Circuit 2nd Amendment case

Analysis: Government’s laughable arguments in 9th Circuit 2nd Amendment case

This past Tuesday, the 9th Circuit held oral arguments en banc on two consolidated Second Amendment cases, Peruta v. County of San Diego and Richards v. County of Yolo.

For a bit of background on this matter, please refer to yesterday’s post, “Full 9th Circuit hears ‘Good Cause’ 2A Ruling,” in which we provide this relevant background as well as a discussion of the pro-Second Amendment side of the argument as presented by Attorneys Paul Clement and Alan Gura.

In this post we cover the gun control side of the argument as presented by Attorneys Edward Dumont, for the State of California and San Diego County, and John Whitesides, for Yolo County. We also include the three-minute rebuttals each by Clement and Gura, thus completing the entirety of the en banc hearing.

Video of the full-length en banc hearing can be viewed in here, if you’ve the inclination. Also, a full-length rough transcript of the hearing is embedded at the bottom of this post.

Dumont defends California’s involvement

Dumont’s segment started off on an interesting note, as one of the Circuit judges immediately challenged why he was even present.

So, Mr. Dumont, where were you when we argued this case before? The sheriff now isn’t going ahead, and we questioned at that particular time, we said does the state know about this, oh yeah, they know about that, and we had all the discussions about whether it implicated a statutory scheme, and then the state just sat on its hands and then lost, and here you are. And so suddenly, you know, what, why should we let you intervene, at this point?

[ . . . ]

If it were another case, there would be no way parties would be able to intervene after they’ve, when they’ve known about it they have a clear, it was clearly implicated.

Interestingly, the State of California had originally declined involvement in these cases. Even at the en banc hearing itself, Dumont was representing the interests of California as a courtesy granted by the court, and not as an officially recognized intervener in the case.

Dumont explained the state’s interest in this way:

[B]oth of these cases as they were presented in the complaints in the District Courts, presented a couple of different avenues, and one of them could have been a very broad view, but more particularly they seemed to be focused on the individual exercises of discretion by the sheriffs in these two counties, including allegations that the decisions were being made in an arbitrary way or based on favoritism. Those were not issues that we thought the state had a compelling reason to get involved in the cases for.

Now, as it turns out, the case has been decided on much broader legal grounds, and that is why we are here.

In fact, it seems likely that the state never imagined for a second that a 3-judge panel of the 9th Circuit would ever arrive at a pro-Second Amendment ruling; they probably thought they already had the case in the bag. Now they’re having to fabricate—mostly out of thin air—a legal rationale for being allowed into the case. So far it appears at least some of the Circuit judges remain unconvinced.

There’s also the issue, of course, of California’s standing in the case—or lack thereof. The plaintiff’s lawyers are quite clear that they are not challenging the California statutory scheme for handgun licensing itself, but merely the way two of California’s county sheriffs are applying the “good cause” element of that scheme. That the sheriffs would be parties is patently clear, but the argument for California as a state seems slim at best.

But let us set aside California’s standing issues, and look to Dumont’s substantive arguments.

Dumont makes the case for gun control

First, Dumont took the curious position that the “good cause” provision should be left up to the county sheriffs in order to take into account differences in conditions among the different counties.

The state statutory structure is to give the discretion to define “good cause” and to give the responsibility to define “good cause” to local sheriffs, because conditions may vary from place to place, and a local sheriff locally accountable and aware of local conditions, and it may be that the policy that makes sense is different in Yolo County or San Diego County than from Shasta County or Lassen County.

This is curious because he immediately followed up with the argument that California should simply adopt the “good cause” schemes that have been adopted by other circuits on the far side of the country.

We are here to defend the ability, the constitutionality, of a sheriff imposing the kind of standard that Sheriff Gore and Sheriff Perito have imposed, which is also the kind of standard that New York imposed under its statute, and that’s been upheld by, as you said, in the 2nd, 3rd, and 4th Circuits.

Huh. So the need to take into account geographic differences on the one hand, and the sudden disposal of those differences on the other, all in one argument?

At least one judge found the county-by-country variance less than convincing, noting that:

The Second Amendment doesn’t change county-to-county.

Quite right.

Dumont also conceded that the Supreme Court’s Heller decision does have application outside the home, particularly in the context of self-defense.

It is not our view that the Second Amendment has no purchase anywhere outside the home.

This concession rather astonished one judge, who quickly asked:

Pardon me, I took a note here, I just want to make sure I get you right. It is the state’s position that the Heller right can apply outside the home? The core right of a law-abiding and responsible citizen to use a firearm for self-defense can apply outside the home? Yes or no?

Dumont responded essentially, “Yes, but . . . “

While conceding that Heller applied outside the home for purposes of self-defense, Dumont explicitly stated that what California found objectionable to a relaxing of the “good cause” requirement was apparently that there might be a practical realization of the Constitutional right to armed self-defense outside the home, saying:

But what [the plaintiffs] like to do is to define the right as recognized in Heller as the right to do exactly what they want to do, which is carry concealed on the streets and public spaces, in the streets and parks and public squares of San Diego or Davis, and that we do not think that Heller stands for. And let me give you a few reasons for that.

Uh, yeah. That’s the point. And, by the way, precisely how every other county in California deals with the issue, excepting San Diego and Yolo County.

The primary argument Dumont made in support of regulating public carry of a handgun out of practical existence was historical context. This would be a major theme of the other gun control attorney, John Whitesides, and one which Alan Gura would swiftly take out at the knees during his rebuttal.

More specifically, Dumont (and later Whitesides) argued at length that there is a long history of restrictive gun regulation in cities and towns, and that’s really all the “good cause” was seeking to accomplish here.

Our position on that is first, I think there’s a lot of historical evidence that in the context of public spaces in cities and towns, which is what we are talking about here, there is also a long and rich tradition of public regulation of the ability to carry dangerous weapons especially including handguns.

Much of this “historical record,” Dumont points out, could be helpfully found in a brief prepared by “Everytown for Gun Safety,” (no, I’m not kidding) a virulently anti-Second Amendment group funded almost solely by Michael Bloomberg.

Dumont also made a point that would receive even more emphasis by Whitesides, that the constraints on open carry in California were, in his view, modest. In fact, he claimed that in most of the areas of San Diego County and Yolo County it was legal to open carry a firearm. Thus he claimed that even if there is a burden placed on the right, it is a modest burden.

[O]ther ordinary activities for firearms ownership outside the home, purchase, training, sports use, camping, hunting, all of these are accommodated by California’s scheme, and so the fact that you can’t get a concealed weapons permit to allow you to walk upon the streets and in the parks and in the malls and in the parking lots in downtown San Diego or downtown Davis, does not mean that you’re right to carry a firearm outside the home has been destroyed.

What Dumont meant by “open carry” was, of course, the open carry of an unloaded firearm for self-defense. Who could ask for anything more? This ridiculous position would in any case be further eviscerated by Paul Clement during his rebuttal.

Whitesides attempts to defend the burden

Whitesides started off on the same theme on which Dumont had ended: that, shucks, really it was possible to carry a gun almost everywhere in both the relevant counties, and so any burden placed on the Second Amendment was laughably small.

[Y]olo County is 95% rural. And so when we’re talking about whether or not there’s a substantial burden on a fundamental right, and even if we assume that historically the right to carry a loaded firearm in public was generally observed, which we would submit is not the case, but even if you assumed it was, it’s not a substantial burden if your inability to carry is limited to less than 1% of the County.

I mean, if you can go to your relatives’, you can go to your friends, you can go to your neighbors, if you can go to your lawyers, to your accountants, if you can go to your place of business, and do all those things loaded, and then when you get to the grocery store or the bank, and we’ll entertain the fiction that those places would allow you to carry a gun regardless of what state law is, but let’s suppose the bank says, sure, you can come in with your gun, all that’s left are the streets.

And people don’t walk up and down the street, just to walk up and down the street. They walk up and down the street to go in and out of businesses. So this theoretical burden on their right to carry is only going to be impacted if the business they are going to would let them in the door with the gun in the first place.

This was too much for one of the judges, who immediately jumped in:

Let me just understand, because people walk up and down the street for a lot of reasons. You don’t have to be going someplace to be walking down the street. [ . . . ] I mean, if you’re worried about self-defense, you can stroll around in the late evening, you can circumvent a park, you can do all kinds of things, but under your theory that’s OK [the carry restrictions] because if you were in the country there’s no restriction?

Whitesides also conceded to the general premise that Heller’s protections of a gun for self-defense extended beyond the home, as had Dumeont, but with a similar “But . . . “.

WHITESIDES: What I’m saying is that, yes, it’s [the narrowly defined “good cause” requirement that effectively eliminates the carry of a firearm for self-defense outside the home] a restriction, but viewed in the totality of where you can carry it’s a small restriction, it’s not a substantial burden. If you can go 99% of the places you go and carry, the fact that you can’t go to 1% shouldn’t be deemed Constitutionally problematic.

JUDGE: Do you take the position then that you start with the premise Heller extends beyond the home, gives you that Constitutional right outside the home, but then you’re only narrowing it, as you put it, 1% or a very small handful of circumstances? Is that the construct, or do you not agree with that?

WHITESIDES: I do, adding one layer. And the layer I would add is that extending beyond the home, and extending to carry in a public area of a city, are not the same thing.

JUDGE: But I guess what I’m, what’s unusual about you’re argument, I’m hearing you concede that Heller does not restrict self-defense to the home?

WHITESIDES: Correct.

Here Whitesides whipped out the same “Everytown for Gun Safety” brief that had been earlier waved around (figuratively, of course) by Dumont, to argue that there’s a long and rich history of rigorous regulation of gun carrying in towns and cities.

Whitesides also notes that Heller recognized a government interest in restricting the carrying of arms in “sensitive places,” as it surely does, but then sought to define “sensitive places” as not just places like courts and airports, but essentially everywhere outside the four walls of your home.

Another gambit heavily relied upon by Whitesides was a repetitive focus on the argument that there’s no Constitutional right to concealed carry. This is true only if you believe a half-lie to be “true.” The actual relevant law is that a state may prohibit either concealed carry or open carry but not both. Once one is prohibited, then there is a Constitutional right to the other.

Whiteside seeks to argue, of course, that California allows open carry—except, as we will see in Clement’s rebuttal, for almost everywhere in the state.

Whitesides also made a laughable analogy between regulating the carrying of a sidearm for personal protection and the regulation of hunting. He correctly notes that hunting is extraordinarily highly restricted in cities and towns, and is hunting not a fundamental Second Amendment right? These hunting restrictions are not seriously questioned on Constitutional grounds. Should not similarly severe restrictions be Constitutionally acceptable when placed upon carrying of a firearm outside the home for self-defense?

This argument ignores, of course, that bearing arms for self-defense and bearing arms for hunting are profoundly different activities, with profoundly different implications for public safety.

The default position for a person armed in self-defense is that they are not firing a gun. Indeed, they would only be firing if they had the legal justification of being faced with an imminent threat of death or grave bodily harm that could not otherwise be safely avoided. Thus, unless an innocent life is at stake an armed defender in even the most populace city is not firing rounds around the vicinity.

In contrast, hunting can only be realized by precisely the opposite default position—that is, by firing the weapon. Obviously, then, there exists a rationale for constraining such an activity in a high population setting that does simply does not exist in the context of armed self-defense.

(Yes, as a long-ago hunter I realize that not every hunt ends up with shots fired. Nevertheless, that is generally the goal of the exercise, otherwise one need not bother to haul along a firearm in the first place.)

Whitesides then seems to do a 180 on his previous statements on Heller and simply pulls the following out of his, uh, hat:

But we don’t feel in any way that that [the narrowly defined “good cause” requirement that effectively eliminates all carry of firearms outside the home for self-defense] could be deemed a destruction of a fundamental right, because it’s not a fundamental right, historically, and there’s no destruction. At most, there’s a burden, not a substantial one, but yes, there’s a burden. Far less of a burden than there is on hunting. Or smoking.

Finally, he wraps up on an issue that had also arisen earlier in the day—the fact that apparently the defendants in this case, the Counties of San Diego and Yolo, had failed to introduce any evidence that supported their “good cause” policy as being necessary to the substantial government interest of safety. The only evidence they’d submitted had been an affidavit from an academic who claimed that guns are dangerous, therefore carrying guns is dangerous, and therefore restricting the carry of guns would be a legitimate government interest.

Whether and how much evidence the Counties brought to the case is important because under either intermediate or strict scrutiny the burden of proof is placed upon the defendants, not upon the plaintiffs, as would be the case under reasonable basis.

This sole affidavit was deemed so inadequate by the earlier 3-judge panel that the cases were decided against the government defendants on summary judgment, without even bothering to go to full trial.

When asked by the en banc judges whether they lose on grounds of inadequate evidence both Dumont and Whitesides essentially make three arguments: (1) the affidavit should be enough even under intermediate/strict scrutiny and a fundamental Constitutional right; (2) the court should take judicial notice of evidence presented in other “good cause” cases that turned out in the way these defendants would like (however dissimilar those cases were on the facts and law); (3) or that they should be given a “do-over” to try the whole matter again from the beginning.

Clement rebuts the anti-2A arguments

First, Clement notes the degree to which the government has conceded on the issue that Heller applies outside the home:

The first, I think, is the most important, because if I heard the other side correctly they essentially concede that the Second Amendment applies outside the home, and they either conceded or came perilously close to conceding that a ban on both open carry and concealed carry would be unconstitutional.

Clement then systematically dismantles the defendant’s argument suggesting that California actually provides plenty of opportunity for lawful open carry of firearms for self-defense:

So then the question that becomes very important is the scope of open carry under California law. And Mr. Dumont gave you an accurate half the story, but I want to tell you the other half of the story.

Which is under the new law you have open carry prohibited in the cities, which is what they want to talk about, but then he also told you that it’s prohibited in the “prohibited areas in the unincorporated parts of the County.”

Now that means that the key word is “prohibited areas.”

That’s defined in the California Penal Code at 17.0.3.0, to basically mean anywhere you can’t discharge a firearm. And the problem is, that’s almost everywhere.

That’s the streets, that’s anywhere hear a dwelling or an unoccupied dwelling or a car or an unoccupied car.

So please don’t decide this case on the presumption that you can carry openly in 85% of the County that’s unincorporated. Because you can’t carry openly in the prohibited areas of the unincorporated areas, and that’s almost anywhere you would ever get. If you are on the grid, if you are on the streets, if you are near a dwelling, if you are near a car, you cannot carry openly.

Clement also points out the logical fallacy of the 9th Circuit simply adopting the “good cause” findings of the 2nd, 3rd, and 4th Circuits. There, he notes, there was a single state-wide finding made. In California the issue is not one of state-wide law, but of the sheriffs’ interpretations of how to apply that law.

Gura destroys the “Everytown” brief

Gura quickly destroyed the relevance of the Everytown brief cited by both Dumont and Whitesides, by noting that it was made in a pre-Heller context before the Second Amendment was recognized as an individual right and one which applies to the states, and thus cannot be used as a basis for judgment in a post-Heller world.

The Everytown brief does a fantastic job of marshaling evidence for the proposition that the right to carry guns has been regulated. But there really is no historical basis for this type of law, that dates back earlier than, as the Drake court found, the early part of the 20th century when New York and New Jersey enacted those particular types of regulations.

Well, what else was going on in the earlier part of the 20th century. Well, those were the days of Cruishank, right? The last word from the Supreme Court at that time was that the Second Amendment did not apply to the states.

It cannot be that we look to the legislative behavior of legislatures at that time as to evidence of how people understood the Second Amendment right to exist, because if those legislatures had consulted the Supreme Court’s guidance on the Second Amendment they would be told that they were completely exempt from having to be concerned about it.

Finally, Gura notes that even if the plaintiffs were to concede the government’s argument that carrying guns in public is dangerous, it simply doesn’t matter. Why? Because that policy decision has already been made at the highest level, the United States Constitution:

Even if we were to concede that they are correct, for the sake of argument we’ll tell them, it’s very dangerous to carry handguns, all kinds of terrible things may happen, we would still prevail because right or wrong that judgment has been made in the Constitution, the people have ratified the Second Amendment, and that policy choice has to be respected.

Well, that’s about it. I didn’t cover every point, of course, so I encourage you to read the transcript.

There really was a remarkable contrast between the sound logic and legal reasoning of the plaintiffs’ lawyers Paul Clement and Alan Gura and the ineffectual largely strawman and/or mostly false arguments posited by the government lawyers Edward Dumont and John Whitesides.

Of course, we’re dealing with the most liberal (and, by far, most reversed) federal Circuit court, and my expectation is that they will do whatever needs to be done to come down in favor of the government’s position.

On the other hand, look at what Posner, certainly no conservative, did in Moore v. Madigan.

Hope, I suppose, springs eternal.

As promised, here’s the full-length rough transcript of the entire en banc hearing.

–-Andrew, @LawSelfDefense

Note: This post has been updated to correct some typographical errors.

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