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BREAKING: 9th Circuit Rules No 2nd Amendment Right to Carry Concealed Weapon

BREAKING: 9th Circuit Rules No 2nd Amendment Right to Carry Concealed Weapon

Does the 9th Circuit decision marks the beginning of the end for CCW in America?

Today the 9th Circuit Court of Appeals, sitting en banc, finally released its long awaited opinion in the Second Amendment case of Peruta. The core issue in that case is whether the Second Amendment provides an individual right of the general, law-abiding public to bear concealed arms in public places.  The full decision is embedded at the bottom of this post.

In short, today’s 9th Circuit decision states that:

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.

The majority arrives at this conclusion having applied intermediate scrutiny, rather than either strict scrutiny (almost invariably finds a constraint to be unconstitutional) or rational basis (almost invariably finds a constraint to be constitutional), to the dispute. In District of Columbia v. Heller the Supreme Court held that rational basis was an inappropriate level of scrutiny to evaluate claims of Second Amendment infringement, but left open the door for intermediate scrutiny.

As this opinion shows, allowing for intermediate scrutiny in practice is little different in the hands of anti-Second Amendment judges than allowing them to apply rational basis—every gun control restraint will survive scrutiny, and the Second Amendment effectively loses all meaning.

The genesis of this case is the California law that requires for issuance of a concealed weapons permit that the applicant show “good cause”—meaning, some particularized need not held by the public in general—for the license. County sheriffs make a discretionary determination of whether “good cause” has been demonstrated on a case-by-case basis, but overwhelmingly they deny licenses to the general public.

Plaintiffs, one of whom was Edward Peruta, objected to this arbitrary standard argued that it violated their Second Amendment rights under District of Columbia v. Heller and McDonald v. City of Chicago.

At trial, the Federal district court ruled against the plaintiffs, simply granting summary judgment to the defendants. The plaintiffs appealed, and a three-judge appellate court of the 9th Circuit reversed the district court and held that the Second Amendment does protect an individual right to bear arms in public. See: Peruta v. City. of San Diego, 742 F.3d 1144 (9th Cir. 2014).

This 9th Circuit en banc ruling reverses that 2014 appellate ruling.

We covered the oral arguments before the en banc 9th Circuit, which occurred fully a year ago, in a pair of posts here at Legal Insurrection:

Full 9th Circuit hears “Good Cause” 2A Ruling

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

I encourage you to take a look at those, as there’s some compelling video, as well as selected transcripts.

A key facet of the 2014 Peruta appellate decision was the while the state of California might conceivably be permitted to effectively ban either the concealed carry of concealed firearms or the open carry of firearms, its existing policy of effectively banning both was an unconstitutional infringement of the Second Amendment.

Notably, this en banc opinion explicitly states:

We do not reach the question whether the Second Amendment protects some ability to carry firearms in public, such as open carry. That question was left open by the Supreme Court in Heller, and we have no need to answer it here. Because Plaintiffs challenge only policies governing concealed carry, we reach only the question whether the Second Amendment protects, in any degree, the ability to carry concealed firearms in public.

That does nothing, of course, to eliminate the already existing laws against open carry in California.

Furthermore, even assuming that the courts don’t later apply the same restriction to open carry, the superficial “leaving ajar” the open carry option would obviously only serve to have an enormous chilling effect on private citizens carrying firearms for personal protection.

Open carry draws unwanted attention, particularly from criminals who see in open carry an opportunity to strike a law-abiding citizen from behind and seize their visible firearm.

In addition, many people will not choose to expose themselves to the considerable social pressure, including prospective threats to employment, that they would be likely to be subject to in areas where the carry of a sidearm for personal protection is looked at askance.

It is unimaginable, to draw a comparison, that the Courts would require a woman traveling to obtain an abortion to be able to exercise that Constitutional right only if she openly displayed her intent to do so.

As usual, the Progressive court here justifies their constraint on the Second Amendment by referring to the racist gun-control laws passed around the time of the Civil War and in the decades afterwards to deny freed blacks arms for self-defense against such Democrat-run agents of oppression as the KKK.

They also cite as authoritative the gun control schemes from the other handful of states that impose similarly restrictive laws, including Delaware, Maryland, New York, New Jersey, as well as the District of Columbia. The laws of the remaining large majority of states get scant mention.

And, of course, they cite plenty of “scientific studies,” each long ago debunked as anti-Second Amendment propaganda.

For a bit of sanity in today’s opinion, there is also a dissent worth reading, starting on page 59. Seriously—read it.

The bottom line, of course, is that if any court wants to conclude that the Second Amendment means no more than does the defunct Tenth Amendment, there will always be sufficient word salad they can toss into an opinion to build up the page count and simply make it so.

A final parting thought: This is exactly the kind of appellate Federal decision that will be fast-tracked to a Hillary Clinton Supreme Court so that it can be affirmed and applied to all 50 states.  For all the #NeverTrump folks who think we can survive as the country we like to envision under the regime of a Hillary Clinton Supreme Court, here’s a small taste of what we, our children, and our grandchildren will be living under–and not just within the realm of gun rights, but all of our rights.

Whoever is out last, please turn off the lights.

As promised, here is the PDF of today’s opinion:

h/t to Rob Morse on Facebook and Rob’s blog.

–-Andrew, @LawSelfDefense


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Comments

criminals rejoice, the public has been disarmed!

    Ragspierre in reply to Andy. | June 9, 2016 at 3:06 pm

    “County sheriffs make a discretionary determination of whether “good cause” has been demonstrated…”

    Californians need new sheriffs. This would be a real wedge issue.

      Anonamom in reply to Ragspierre. | June 9, 2016 at 3:24 pm

      California already has a good number of very conservative sheriffs – in the Central Valley and north counties. You know, the ones that want to secede because they are outvoted and ignored?

      Better Plan: California needs a “SHALL ISSUE” constitutional amendment.

      Get a ballot proposal going to add the language from the Michigan Constitution to the California Constitution.

      Basically that the issuance of Concealed Pistol Licenses is transferred and divested from the individual Sheriff of the county and is invested in the Sec. of State of California. Concurrently pass legislation that the Sec. of State of California “Shall issue” a concealed pistol license to any person over the age 18 who shall not have:
      1: been convicted of a felony; or
      2. have attained the age of 21; or
      3. has been adjudged mentally disabled
      4. is not the subject of a Protective Order (Order of Personal Protection or whatever the hell the California equivalent is.

      Then add a VERY short list of public places where you cannot carry a concealed or open firearm: schools, daycare facilities, Stadiums that seat over 2500, Tavern/bar where 50% income is generated by alcohol, churches without pastor’s permission, hospital and dorm rooms.

      Or, better yet, simply pass a “constitutional carry” amendment. No more licenses, PERIOD.

      That’ll drive the progressives batty.

      Casey M in reply to Ragspierre. | June 9, 2016 at 10:18 pm

      This came up in the LA sheriff’s race that occurred right after the original decision. The problem was that only one candidate kinda-sorta favored issuing permits and he wasn’t good for other reasons.

      In Orange and San Diego Counties I expect you could do some damage with this though. And I wonder if some counties could use some permit fee money from temporary residents.

    Xenomethean in reply to Andy. | June 9, 2016 at 3:08 pm

    That is all the Left wants. They want to the law abiding citizens pay taxes and suffer.

ugottabekiddinme | June 9, 2016 at 2:35 pm

With California’s blanket prohibition on open carry and now this ruling against concealed carry permits, I’ll look forward to CNN’s live coverage of the hordes of gangbangers and other criminals lining up to turn in their weapons.

What’s that you say? Criminals don’t obey the laws? Who knew?

    I’m more looking forward to the reports of gang violence in the streets where the criminals start to get into battles, as there won’t be any civilian help for the police.

    Actually given the ban on open carry and the “good cause” reason to get a concealed carry, I look forward to even the Supremes finding this is an infringement that would not survive strict scrutiny.

    After all there is no ‘good cause’ requirement to register to vote, assemble, or any other fundamental constitutional rights.

When they get around to Nichols they’ll say open carry isn’t protected either, thus reading out “bear” entirely from the constitution.

Common Sense | June 9, 2016 at 2:44 pm

Folks were are alive to witness this. A very big blow to the 2nd amendment.

Crooked Hillary is going to finish it off with a couple appointments to the Supreme Court!

For everyone who is pissing and moaning about Trump, why don’t you think again. We CAN NOT take what Crooked Hillary would do for 4 years.

If she is elected there will be no turning back.

TRUMP 2016

    Ragspierre in reply to Common Sense. | June 9, 2016 at 3:25 pm

    Thinking people don’t vest blind faith in Der Donald.

    Consider the TWO demonstrations where he’s actually had an opportunity to show who he is…

    1. Iowa–sold out to BIG CORN for a few crony votes, and even advocated expanding and extending the anti-science, anti-market ethanol programs, and LIED about why he was doing it (it will “Make America Great Again”…total bullshit)

    and

    2. N. Carolina–endorsed the MOST pro-abortion, pro-amnesty, anti-conservative GOP primary candidate, Renee Ellmers (who lost, BTW)

    Not what anyone who is awake would call a “confidence building record”. In fact, it fits very nicely with what many of us have been warning you about for about a year. He’s a lying Collectivist fraud.

Judicial activism? Biased judges? Why do they hate the law abiding so much?

A dissent? The Ninth Circus has a sane person on it? That’s actually a little reassuring.

Xenomethean | June 9, 2016 at 3:12 pm

What the to “shall not be INFRINGED”? Oh right, Left does not believe the constitution exist like the people who think the world is flat. I hope I can exercise my 2A rights before Killary and her Liberals anti-Americans take it away for good.

Once again, the good law abiding people are harmed by the courts while gang banging illegal immigrants are ushered into our cities with offers of health care, free food and voting priviledges. Fools.

I live in Chicago. I need a gun to protect myself because our government can not. And I don’t want it to except against foreign enemies.

And Chicago’s fathers have left. Their children run wild in the streets, killing innocent people.

The courts ruling sent the gangs a message – “you now have more gun free zones with gun free people. Go for it.”

Fools.

The headline should be amended to read “the right to LEGALLY carry a concealed weapon.” Molon labe

Apparently, the courts want a return to the 1800s when every male carried his rifle/pistol out in the open. If the ‘law’ states that open carry is illegal, someone is going to have be the test case for the 9th Circuit to square that circle-jerk.

Live in CA? Not too smart on your part…just saying, if you want civil rights, CA is not the place to live.

Florida Gator | June 9, 2016 at 4:34 pm

The 9th circuit has set up a website for audio, video, pleadings for this case:
https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000722

Here is the take-away from this decision. In the narrowest possible way, the court addressed the the question of whether the state could regulate a specific mode of carry, concealed, and what standards it could apply to that regulation. And, under the current court decisions, including Heller I and McDonald, the state can regulate specific modes and manners of carry. What the state can not so, is regulate all modes of carry so stringently that the majority of people, in a given jurisdiction can not carry a firearm, outside the home, at all. But, the court specifically chose not to address THAT issue at all.

So, taken in a legal vacuum, the State of California CAN restrict the concealed carry of a firearm to a person who has a “good cause” that they should be allowed to carry concealed. And, further, that the state can designate whomever they wish to make the determination as to what constitutes “good cause”.

In doing so, they carefully ignored whether the restrictions on issuance of a license to carry concealed, when coupled with the ban on general open carry essentially made it impossible for a majority of the people in the state to exercise their right to possess firearms, outside the home, for lawful self defense.

What is remarkable, in the historical has provided, is the the court never made the required historical differentiations which existed. Prior to the ratification of the Bill of Rights, a government, in the New United States of America was legally justified in regulating the possession of firearms and other weapons. After the Bill of Rights was ratified, the federal government was no longer allowed to regulate the ownership or possession of weapons. After the ratification of the 14th Amendment, the states were, technically no longer able to regulate the ownership or possession of firearms and other weapons. They continued to do so, until 2010 [McDonald v Chicago]. But, the SCOTUS said, in dicta, that “reasonable restrictions” could be imposed upon there rights, even though no such exception exists in the language of the amendments. This is important, because the 9th Dc bases some of its reasoning upon cases from states prior to the ratification of the 14th Amendment, when state were still free to regulate weapons possession. It spends a great deal of time on foreign legal history which had nothing to do with Constitutional rights, as delineated under the Bill of Rights to the US Constitution. They simply lumped all of these historical facts together to attempt to justify the position that concealed carry could be regulated.

Terrible decision.

    DaveGinOly in reply to Mac45. | June 9, 2016 at 8:51 pm

    We have a right to “bear” or carry arms. There are only two ways that can be done – concealed and openly. California has criminalized open carry and requires the citizen to get the state’s permission for concealed carry. If one requires a permit, the citizen must be free to be exercise the other or the right has been extinguished. If one has been criminalized, then the citizen must be free to exercise the other or the right has been eliminated. In states like California, there is no recognition of the right to bear arms, because one manner of carry requires a permit and the other has been converted to a crime – leaving the citizen with no right to bear arms that can be exercised freely (as all rights should be). Where did it go?

    SCOTUS has said that a right cannot be converted to a crime, and a state cannot levy a fee (concealed carry permit fee) on the exercise of a right, nor require a license (permission) for its exercise. Where is the right to bear arms in California?

    The entire characterization of the 2nd Amendment (or any other amendment of the Bill of Rights) as the source of a right is wrong (I was going to write “flawed,” but it’s not, it’s just plain wrong). The court compounds its error when, failing to find a right in the amendment, it infers state authority in its absence. (In the US Constitution, for instance, Congressional authority is found in Article I, and in some amendments other than the 2nd, but none is found in the 2nd Amendment itself. In a constitutional form of government, there is no authority found in the vacuum between the absence of a right and the absence of enumerated power.) The amendment was intended to place a bar between the state and the people, to prevent the state from intruding upon the people’s rights, including the right to bear arms, which must include the right to determine how to bear them (concealed or openly).

    Lastly, I have to blame the NRA and the attorneys who constantly refer to the 2nd Amendment as the source of our right to arms, and use it (almost solely) as their weapon of choice in their arguments. E.g., why not claim the right to one’s life (which presumes a right to the tools necessary to defend it)? A firearm is a form of property – why not argue that the citizen has a right to the use and enjoyment of his property? Why is the focus on the 2nd Amendment when the left is so well-exercised at dismissing its language and when other arguments (based on the First, Fourth, and Ninth Amendments, as well as principle) can be at least as forceful and convincing? Why the continued conflation of concealed carry permits (licenses) with the right to bear arms that has largely disappeared from certain states?

    Frankly, I don’t care what rights aren’t found in the 2nd Amendment. I can find my right to arms (and to carry them as I will) in other places. Even if this court is correct, that there is no right to carry a concealed weapon to be found in the 2nd Amendment (and in a perverse way, the court is correct), that does not mean that the right can’t be found elsewhere, and not necessarily in the Constitution – which is a constitution of government that had nothing to do with establishing our rights.

So we have the right to practice any religion we wish as long as it’s in our own home or in some manner that the State approves outside our home. And we have the right to free speech as long as it’s in our home. This isn’t a slippery slope – It’s a friggin avalanche.

healthguyfsu | June 9, 2016 at 6:30 pm

Makes zero sense and should have trouble up the ladder if it gets that far.

2nd amendment grants right to bear arms…you can either conceal those arms or open carry those arms. If the state says you can’t open carry those arms, then your only remaining choice to remain compliant with both their ordinance and exercise your 2nd amendment Constitutional right is CCW.

    Anonamom in reply to healthguyfsu. | June 9, 2016 at 7:03 pm

    “Makes zero sense and should have trouble up the ladder if it gets that far.”

    Until President Clinton’s appointments reconfigure the Supreme Court.

I think the court makes the same false assumption that most liberal judges make about the historical decisions regarding concealed carry. They presume there was either open carry or concealed carry, but it seems clear to me that even back to Merry Old England, there was open carry, “offensive” concealed carry, “defensive” concealed carry.

Look at the 9th’s simplistic reading of most of the American historical jurisprudence:

In the pre-colonial MA case cited, it says people cannot “go armed Offensively in fear and afray of Their Majesties Leige People.” Well, there is clearly a requirement that one go armed with an intent to commit unlawful acts (“Offensively”). That says nothing about going armed purely for defensive purposes, which fits perfectly into the protections afforded by the Second Amendment as held in Heller (“central to” the right to keep and bear arms is “the inherent right of self-defense”.)

Then there is State v. Mitchell, the 1831 Indiana case cited, which says it is not unconstitutional to prohibit “all persons, except travelers, from wearing or carrying concealed.” Well, isn’t anyone who leaves their property a traveler? When I left my farm in 1831 Indiana to go into the general store in town, am I not a traveler? Seems to me that is a clear indication that a traveler carries concealed “defensively” while a brigand or other thug carries “offensively.”

State v. Buzzard (Ark 1842) is similar… A person carrying concealed, “unless upon a journey,” is guilty of a misdemeanor. Well, what the hell is a journey, but anything outside of one’s home? A journey clearly implicates a lawful purpose, that is, I’m not going out to commit a crime with my concealed weapon. They just aren’t getting that.

Not much different in State v. Reid (Ala. 1840) where it was not unconstitutional to prohibit concealed carry in such a manner “as is calculated to exert unhappy influence upon moral feelings of the wearer by making him less regardful of the personal security of others.” In other words, it prohibited carrying concealed “offensive weapons,” the method of use by robbers and thieves, not defensive weapons, the method of use by travelers and journeymen.

There are a handful of other issues with the decision, but it seems to me the 9th’s big “reveal” that SCOTUS said in Robertson v. Bowie in 1897 that the 2A does not protect Concealed Carry very clearly implicates “offensive CC” based on historical precedent. This is what the 9th has misread or read narrowly to make “may issue” a “constitutional” concept.

So my take is that the Second Amendment not only clearly historically protects Open Carry (See Nunn v. State (GA 1846), State v. Chandler (LA 1850), Bliss v. Commonwealth (KY 1822), all cited by 9th in Peruta), but also “defensive” Concealed Carry.

Even when you go back to the English laws, you see that distinction between “offensive” and “defensive” concealed carry. While the statutes read much stricter than some of the U.S. counterparts, in the Sir John Knight’s case (1600s) cited by the 9th in Peruta, the court acquitted Knight holding “the meaning of [the Statute of Northampton] was to punish people who go armed to terrify the King’s subjects.” Again, it was illegal to “terrify the public by carrying concealed,” a clear “offensive” aspect that made the act of concealed carry illegal. That says nothing about “defensive” concealed carry. Moreover, the notion that the person goes “armed to terrify” goes to the individual’s intent, not how everybody around them “feels” about the concealed weapon, which eliminates the thought of criminalizing conduct because a Mom’s Demand whiner sees your gun on your hip while at Walmart.

These interpretations dovetail with the modern interpretation (i.e., Heller). Heller talked about arms in common use for self-defense, not offensive purposes. And, there is an obvious distinction between somebody who carries concealed for offensive purposes, since (1) they can get charged with the crime (rape, robbery, murder, assault) the gun is used for, and a lot of states have an “instruments of crime” type statute to attach to such “offensive” use.

The reasoning of the 9th is embarrassingly flawed. I think that is clear. The question is can a Hillary appointed liberal court get past that and uphold their duty to the Constitution and the people of America. Answer: probably not. Hard choice for Republicans (and all gun owners): Vote for Trump

Thoughts?

9th Circuit covers…
District of Alaska.
District of Arizona.
Central District of California.
Eastern District of California.
Northern District of California.
Southern District of California.
District of Hawaii.

funny how all other BoR cases get “strict scrutiny” from the 9th Circus, but not the 2nd Amendment.

and a Point of Order: the Bill of Rights *enumerates* our civil rights. it does NOT grant them. they exist above & beyond the Constitution.

If beating Hillary is so important why doesn’t Trump step down and let the party unify?

    Barry in reply to Casey M. | June 10, 2016 at 1:14 am

    LOL, yea. Maybe we can get jeb! or that staunch conservative Romney. Maybe Ryan, fresh from bailing out Puerto Rico and Bain capital could do it.

    The republicans have been doing such a damn good job up to this point, why change up?

    Common Sense in reply to Casey M. | June 10, 2016 at 9:09 am

    Because he beat 16 other people to WIN the nomination.

    “Trump received 13,406,108 votes to date in the elections according to http://www.thegreenpapers.com.

    As a result Trump has more votes than any candidate in Republican history.

    Trump shattered the previous record by 1.4 million votes — and that was with 17 candidates in the race.”

    The stupid #NeverTrump people just don’t get it!

      Ragspierre in reply to Common Sense. | June 10, 2016 at 11:13 am

      You can torture numbers to make them say anything.

      The “T-rump shattered” canard is a great example.

      The expanded voting population is the sole reason for the “T-rump shattered” bullshit.

      In reality, T-rump is something like 20%+ behind Reagan in terms of his share of GOP voters in their relative primaries.

      I bet T-rump opposition voters set a new record, too.

      T-rump sucking morons take their pap where they find it, I guess…

        Barry in reply to Ragspierre. | June 10, 2016 at 3:38 pm

        In reality, Reagan had 1/2 the primary opposition trump had.

        Recent primary results are a bit more meaningful. Considering the demographic changes. California ain’t in play anymore.

        You lost. And you are the definition of a “sore loser”.

          Ragspierre in reply to Barry. | June 10, 2016 at 4:09 pm

          You’re just Butt-hurt Barry ’cause you and other T-rump suckers can’t get away with your bullshit unopposed here.

          And I didn’t “lose” anything.

It would appear that the majority of the judges ruling in this case are auditioning for impending SCOTUS vacancies if the Democrats prevail.

I find particularly amusing the citation of abuses of Elizabethan England for justification for weapons control, as one of the distinct features of then laws was that no Catholic was allowed to own weapons of any kind or could assemble for Catholic worship at Mass. These laws were only repealed in the United kingdom following the American Revolution.

Courts have ruled time and time again that the police are not legally obligated to protect us. Now they have ruled you cannot protect yourself.

Yep.
Hillary will appoint Social Justice Warriors to the Supreme Court who will effectively neuter whatever Amendments they want neutered without having to actually go through that messy “repeal” process.

Anyone who doesn’t see that the most important issue this election is the appointees to the Supreme Court needs a good kick in the head. Metaphorically speaking, of course….

Given that Trump has listed his potential appointee pool, and while sadly Branca isn’t on the list, there seem to be some decent choices in that pool.

We know we can’t count on the Senate to oppose Hillary’s appointments..they’ll fold like a drink umbrella because, you know, feckless and faithless.

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