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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