This past Tuesday, the federal 9th Circuit held oral arguments on a re-hearing en banc on two consolidated gun control cases, Peruta v. County of San Diego and Richards v. County of Yolo.
Both Peruta and Richards involve a provision of California gun control law that allows county Sheriffs to deny the issuance of a concealed carry permit unless the applicant can demonstrate “good cause” for the permit—typically a showing of some extraordinary risk of danger to the applicant, rather than a mere generalized interest in self-defense.
Most California county Sheriffs define “good cause” broadly, such that a mere generalized interest in self-defense is sufficient to qualify an otherwise qualified applicant for a concealed carry permit. The Sheriffs for the Counties of San Diego and Yolo, however, define “good cause” so narrowly as to effectively preclude nearly all applicants from receiving a concealed carry license.
The video of the entirety of the hearing, from gavel to gavel, below. A rough transcript of the portion of the hearing in which the appellants attorneys, Paul Clement and Alan Gura, argue for their clients’ Second Amendment rights also is embedded below. Both do an outstanding job, but I expect that won’t help much before this Circuit.
As Attorney Paul Clement, representing Peruta, put it in his opening remarks:
This case involves a challenge to San Diego County’s policy of interpreting “good cause” to require an applicant to demonstrate that they have a particularly acute need for self-defense which distinguishing themselves from their ordinary fellow citizen.
Having watched the entirety of the oral arguments, it seems clear to me that the panel is willing to latch onto any rationale to conclude that the narrow application of the “good cause” requirement is Constitutionally valid.
This is not surprising, as the 9th Circuit is the most liberal of the federal circuits, and notably the circuit most frequently reversed by the Supreme Court. A similarly narrow reading of “good cause” has been held Constitutionally valid by other liberal federal circuits, including the 2nd, 3rd and 4th, as well as just this past Friday in the District of Columbia (see “Gun Controllers Score Temporary Win in DC”), and I expect the same to occur with the 9th.
Indeed, the shock here is that a 3-judge panel of 9th Circuit judges had found “good cause” unconstitutional in the first place in their decision of February 2014.
It was a crushing loss for gun control advocates in this most liberal of federal Circuits, and naturally they’ve pulled out all the stops, including this highly unusual en banc re-hearing, to get that decision reversed. That previous ruling can be read here, and I encourage you to do so, as it’s a fine piece of pro-Second Amendment jurisprudence.
The questions and issues raised by the judges throughout the hearing were remarkable in their dexterous stretching to find any rationale in which the narrow definition of “good cause” could be upheld.
For example, one circuit judge asked whether the Supreme Court’s recent decision not to hear an appeal on a California gun storage case had significance for this “good cause” hearing. This is really sheer silliness.
If one learns nothing else in law school, one learns that absolutely no precedential information can be gleaned by the Supreme Court’s decision to not take on a case. The Court takes appeals or not at their sole discretion for any of a thousand different reasons, perhaps the most controlling of which is the fact that they simply have insufficient time to hear every case pleading for their attention.
More silliness was tossed into the mix when another circuit judge quoted dicta (a non-substantive, off-hand remark in a ruling) from a totally unrelated case, Robertson v. Baldwin, as it were controlling black-letter law on the “good cause” issue.
As Attorney Clement humorously noted in response:
And the way I would understand what the Robertson court meant by that dictum—which really was super dictum, that’s a 13th Amendment case, and they have a paragraph where they’re making a drive-by statement about six different Constitutional rights, so I think you have to keep that in context—
The judges also repeatedly challenged both Clement on Gura on the strawman issue that the attorneys would object to any restrictions on bearing arms at all.
This is patently not the case, as the lawyers pointed out. They concede that reasonable regulation of carrying outside the home can be Constitutionally sound, things such as training requirements, background checks, exclusion of carry in sensitive areas, whether carry can be concealed or open, and so forth. Rather, their sole objection in this case is to the narrow definition of “good cause” which effectively eviscerates the right to bear arms outside the home to those California residents who live in San Diego and Yolo Counties.
Another frequent theme was that if the 2nd, 3rd, and 4th Circuits had approved a narrow definition of “good cause” (as indeed they have), then why shouldn’t the 9th Circuit simply follow suit? Both Clement and Gura had substantive arguments against this, but it’s my expectation that the 9th Circuit will do precisely that.
Certainly the most outlandish of arguments made by any of the judges was when one of them suggested that, hey, Mr. Peruta could have lawfully openly carried an unloaded pistol, and ammunition elsewhere on his person, and that would adequately meet his Second Amendment rights to self-defense. [If you’d like to pop to that part of the video to watch in shocked disbelief, just advance in the video embedded above to the 22:20 time stamp.]
This was silly first of all because California law has since changed, and all forms of open carry are now prohibited. Thus the point, if it was ever valid (ha-ha) is now moot.
Second of all, the Second Amendment as defined in Heller explicitly finds there is a Constitutional right for law-abiding adults to carry a gun for the purpose of self-defense. One is only ever allowed to use a gun in self-defense when facing a deadly threat that is imminent, that is, occurring right now.
The prospect that a typical citizen would be able to safely load and ready his unloaded handgun while in the process of being imminently attacked is laughable. I note in passing that despite an unfortunately high frequency of accidental discharges by trained police officers, no one suggests that we send them out on patrol with unloaded pistols.
As promised, below is a rough transcript of the portions of the hearing in which Clement and Gura made their substantive comments. (Each also made some comments in rebuttal to the gun controllers’ remarks, and those are not included below). I don’t likely have the time (or heart) to transcribe the gun controllers’ remarks, but if I get to it I’ll do a second post. In any case, you can always listen to them on the video above.
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