We’re getting word of a huge Second Amendment win out of California’s notoriously liberal Ninth
Circus Circuit Court:
The Ninth Circuit’s decision in Peruta v. San Diego, released minutes ago, affirms the right of law-abiding citizens to carry handguns for lawful protection in public.
California law has a process for applying for a permit to carry a handgun for protection in public, with requirements for safety training, a background check, and so on. These requirements were not challenged. The statute also requires that the applicant have “good cause,” which was interpreted by San Diego County to mean that the applicant is faced with current specific threats. (Not all California counties have this narrow interpretation.) The Ninth Circuit, in a 2-1 opinion written by Judge O’Scannlain, ruled that Peruta was entitled to Summary Judgement, because the “good cause” provision violates the Second Amendment.
The Court ruled that a government may specify what mode of carrying to allow (open or concealed), but a government may not make it impossible for the vast majority of Californians to exercise their Second Amendment right to bear arms.
I’ll have more commentary once I’ve had a chance to wade through the decision (PDF), but at the moment, it looks like “may issue” took a huge hit, constitutionally speaking.
We’re going to start dropping particularly relevant sections of the decision below.
Stand by for updates.
To resolve the challenge to the D.C. restrictions, the Heller majority described and applied a certain methodology: it addressed, first, whether having operable handguns in the home amounted to“keep[ing] and bear[ing] Arms” within the meaning of the Second Amendment and, next, whether the challenged laws, if they indeed did burden constitutionally protected conduct, “infringed” the right. We apply that approach here, as we have done in the past, United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013), and as many of our sister circuits have done in similar cases.
The first question goes to the scope of the guarantee: Does the restricted activity—here, a restriction on a responsible, law-abiding citizen’s2 ability to carry a gun outside the home for self-defense—fall within the Second Amendment right to keep and bear arms for the purpose of self-defense? Ezell, 651 F.3d at 701; see also Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 96 (2d Cir. 2012). Concerning the precise methods by which that right’s scope is discerned, the Heller and McDonald Courts were hardly shy: we must consult “both text and history.” Heller, 554 U.S. at 595; see also McDonald, 130 S. Ct. at 3047 (reiterating that “the scope of the Second Amendment right” is determined by historical analysis and not interest balancing).
The Second Amendment secures the right not only to “keep” arms but also
to “bear” them—the verb whose original meaning is key in this case. Saving us
the trouble of pulling the eighteenth-century dictionaries ourselves, the Court
already has supplied the word’s plain meaning: “At the time of the founding, as
now, to ‘bear’ meant to ‘carry.’” Heller, 554 U.S. at 584.3
Yet, not “carry” in the ordinary sense of “convey[ing] or transport[ing]” an object, as one might carry groceries to the check-out counter or garments to the laundromat, but “carry for a particular purpose—confrontation.” Id. The “natural meaning of ‘bear arms,’” according to the Heller majority, was best articulated by Justice Ginsburg in her
dissenting opinion in Muscarello v. United States, 524 U.S. 125 (1998): to “‘wear,
bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose
. . . of being armed and ready for offensive or defensive action in a case of conflict
with another person.’”
Yes, they just used an argument by Ginsburg. My head is spinning.
The commonsense reading of “bear Arms” previously discussed finds support in several important constitutional treatises in circulation at the time of the Second Amendment’s ratification. See id. at 582–83, 592–93 (treating such sources as instructive of the clause’s original meaning). Writing on the English right to arms, William Blackstone noted in his Commentaries on the Laws of England that the “the right of having and using arms for self-preservation and defence” had its roots in “the natural right of resistance and self-preservation.”
Heller, 554 U.S. at 594 (internal citations and quotations omitted). It was this inherited right of armed self-defense, according to Heller, that “by the time of the founding [was] understood to be an individual right protecting against both public and private violence.”
In keeping with the views of the important late-eighteenth-century commentaries, the great weight of nineteenth-century precedent on the Second Amendment or its state-law analogues confirms the Heller-endorsed understanding of “bear Arms.”
In fact, as we will show, many of the same cases that the Heller majority invoked as proof that the Second Amendment secures an individual right may just as easily be cited for the proposition that the right to carry in case of confrontation means nothing if not the general right to carry a common weapon outside the home for self-defense.
(pg. 21) Utterly slamming the door on the contrived “collectivist” view of the Second amendment.
…Heller clarifies that the keeping and bearing of arms is, and has always been,
an individual right. See, e.g., 554 U.S. at 616. Second, the right is, and has always
been, oriented to the end of self-defense. See, e.g., id. Any contrary interpretation
of the right, whether propounded in 1791 or just last week, is error.
…the majority of nineteenth century courts agreed that the Second Amendment right extended outside the home and included, at minimum, the right to carry an operable weapon in public for the purpose of lawful self-defense. Although some courts approved limitations on the manner of carry outside the home, none approved a total destruction of the right to carry in public.
(pg. 35: a reminder that gun control is racist to the core)
It was in large part in reaction to Dred Scott’s logic, on which the Black Codes of the post-war South plainly rested, that the Reconstruction Congress sprung into action. Heller, 554 U.S. at 614. It was, of course, no coincidence that the codes, designed to deny the privileges of constitutional citizenship to the freedmen, took aim at that most fundamental right of keeping and bearing arms. Clayton E. Cramer, The Racist Roots of Gun Control, 4 Kan. J.L. & Pub. Pol’y 17, 20 (Winter 1995) (“The various Black Codes adopted after the Civil War required blacks to obtain a license before carrying or possessing firearms or bowie knives. . . . These restrictive gun laws played a part in provoking Republican efforts to get the Fourteenth Amendment passed.”)
The weight of authority suggests that the right to bear arms, as understood in
the post–Civil War legal commentary, included the right to carry weapons outside
the home for self-defense, which, as shown, is consistent with the understanding of
the right articulated in most eighteenth-century commentary, nineteenth-century
court opinions, and by many post–Civil War political actors.
(pg. 49: starting to lower the boom on the district court)
We thus disagree with those courts—including the district court in this
case—that have taken the view that it is not necessary (and, thus, necessary not) to
decide whether carrying a gun in public for the lawful purpose of self-defense is a
constitutionally protected activity. See, e.g., Drake, 724 F.3d at 431; Woollard,
712 F.3d at 876; Kachalsky, 701 F.3d at 89; cf. Masciandaro, 638 F.3d at 475.
Understanding the scope of the right is not just necessary, it is key to our analysis.
For if self-defense outside the home is part of the core right to “bear arms” and the
California regulatory scheme prohibits the exercise of that right, no amount of
interest-balancing under a heightened form of means-ends scrutiny can justify San
Diego County’s policy.
(pg. 52-54: getting down to the heart of the matter)
Our first task, therefore, is to assess the nature of the infringement that the
San Diego County policy purportedly effects on the right to bear arms—namely,
does it burden the right or, like in Heller, does it destroy the right altogether?
California’s regulatory scheme addresses two types of arms-bearing: open
and concealed carry. Under California law, open carry is prohibited in San Diego
County regardless of whether the weapon is loaded or unloaded. See Cal. Penal
Code §§ 25850, 26350. Because California law has no permitting provision for
open carry, cf. id. §§ 26150, 26155 (providing licensing only for concealed carry),
it is illegal in virtually all circumstances.
California law also severely restricts concealed carry, although not to the
same extent as open carry. As a general rule, concealed carry is not allowed
regardless of whether the weapon is loaded. . See id. § 25400. But there are certain
exceptions. Concealed carry is acceptable with a proper permit. Id. §§ 26150,
26155. And even without a permit, it is sanctioned for particular groups, see, e.g.,
id. § 25450 (peace officers); id. § 25455 (retired peace officers); id. § 25620
(military personnel); id. § 25650 (retired federal officers), in particular locations,
see, e.g., id. § 26035 (private property or place of business); id. § 26040 (where
hunting is allowed), and at particular times, see, e.g., id. § 26045 (when faced with
“immediate, grave danger” in the “brief interval before and after the local law
enforcement agency . . . has been notified of the danger and before the arrival of its
assistance); id. § 26050 (making or attempting to make a lawful arrest).
Clearly, the California scheme does not prevent every person from bearing
arms outside the home in every circumstance. But the fact that a small group of
people have the ability to exercise their right to bear arms does not end our inquiry.
Because the Second Amendment “confer[s] an individual right to keep and bear
arms,” we must assess whether the California scheme deprives any individual of
his constitutional rights. Heller, 554 U.S. at 595. Thus, the question is not
whether the California scheme (in light of San Diego County’s policy) allows some
people to bear arms outside the home in some places at some times; instead, the
question is whether it allows the typical responsible, law-abiding citizen to bear
arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding “no.”17
In California, the only way that the typical responsible, law-abiding citizen
can carry a weapon in public for the lawful purpose of self-defense is with a
concealed-carry permit. And, in San Diego County, that option has been taken off
the table. The San Diego County policy specifies that concern for “one’s personal
safety alone” does not satisfy the “good cause” requirement for issuance of a
permit. Instead, an applicant must demonstrate that he suffers a unique risk of
harm: he must show “a set of circumstances that distinguish [him] from the
mainstream and cause him . . . to be placed in harm’s way.” Given this
requirement, the “typical” responsible, law-abiding citizen in San Diego County
cannot bear arms in public for self-defense; a typical citizen fearing for his
“personal safety”—by definition—cannot “distinguish [himself] from the
(pg. 59-60: precedents for striking down San Diego’s law and de facto ban)
…State v. Chandler, stands for the principle that laws prohibiting the carry of concealed weapons are valid only so long as they do not destroy the right to carry arms in public altogether. See 5 La. Ann. at 489–90 (“[The Act] interfered with no man’s right to carry arms (to use its words) ‘in full open view,’ which places men upon an equality.”); see also Jumel, 13 La. Ann. at 400 (citing Chandler for the principle that “prohibiting only a particular mode of bearing arms . . . found dangerous” does not infringe the right). The second, Nunn v. State, was even more explicit: “A law which merely inhibits the wearing of certain weapons in a concealed manner is valid. But so far as it cuts off the exercise of the right of the citizen altogether to bear arms, or, under the color of prescribing the mode, renders the right itself useless—it is in conflict with the
Constitution, and void.” 1 Ga. at 243. Heller’s third and final source, Chase’s
American Students’ Blackstone, takes a similar stance, concluding that, though the
Constitution forbids the infringement of the right to bear arms, “statutes
prohibiting the carrying of concealed weapons are not in conflict with [it or its
state analogues], since they merely forbid the carrying of arms in a particular
manner, which is likely to lead to breaches of the peace and provoke to the
commission of crime, rather than contribute to public or personal defence.” Chase,
supra, at 84 n.11.
Of course, these three sources are not the only exponents of this view. As
we have shown, dozens of other cases and authorities from the same period—many
of which Heller cites as probative of the right’s original meaning—contend
likewise. See, e.g., Reid, 1 Ala. at 616–17 (striking down a concealed carry law
because “the Legislature[ has] the right to enact laws in regard to the manner in
which arms shall be borne,” but noting that a statute that destroys the right
altogether under the “pretence of regulating” the manner of carry “would be clearly
unconstitutional”); Bliss, 12 Ky. (2 Litt.) at 91 (holding that a ban on concealed
carry, which “restrain[ed] the full and complete exercise of [the] right,” was
unconstitutional and void). As Judge Hardiman aptly summarized “courts have
long h[eld] that although a State may prohibit the open or concealed carry of
firearms, it may not ban both because a complete prohibition on public carry
violates the Second Amendment and analogous state constitutional provisions.”
Drake, 724 F.3d at 449 (Hardiman, J., dissenting).
(pg. 64: The Ninth circuit then scolds the Second, Third, and Fourth Circuit Courts, essentially accusing them of not doing their homework in upholding the “shall issue” permitting in New Jersey and Maryland), but for whatever reason, Acrobat is not letting me copy that passage. you’ll have to read it for yourself.)
(Pg. 68. It’s just as well. the spanking continues on for several pages, concluding)
By evading an in-depth analysis of history and tradition, the Second, Third,
and Fourth Circuits missed a crucial piece of the Second Amendment analysis.
They failed to comprehend that carrying weapons in public for the lawful purpose
of self defense is a central component of the right to bear arms. See Moore, 702 F.3d at 941 (criticizing the court in Kachalsky for “suggest[ing] that the Second Amendment should have a much greater scope inside the home than outside” and noting that the “interest in self-protection [and thus in the Second Amendment right] is as great outside as inside the home”). And further, they failed to comprehend that regulations on the right, although permissible to an extent, could not go so far as to enjoin completely a responsible, law-abiding citizen’s right to carry in public for self-defense. Such regulations affecting a destruction of the right to bear arms, just like regulations that affect a destruction of the right to keep arms, cannot be sustained under any standard of scrutiny.
I’ll be very interesting to see what this decision means (if anything) to cases against “shall issue” states in the future, particularly New York, New Jersey, and Maryland.
(pg 75-76: HERE COMES THE BOOM)
We conclude by emphasizing, as nearly every authority on the Second
Amendment has recognized, regulation of the right to bear arms is not only
legitimate but quite appropriate. We repeat Heller’s admonition that
“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession”—or carriage—“of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626–27.
Nor should anything in this opinion be taken to cast doubt on the validity of
measures designed to make the carrying of firearms for self-defense as safe
as possible, both to the carrier and the community.
We are well aware that, in the judgment of many governments, the
safest sort of firearm-carrying regime is one which restricts the privilege to
law enforcement with only narrow exceptions. Nonetheless, “the
enshrinement of constitutional rights necessarily takes certain policy choices
off the table. . . . Undoubtedly some think that the Second Amendment is
outmoded in a society where our standing army is the pride of our Nation,
where well-trained police forces provide personal security, and where gun
violence is a serious problem. That is perhaps debatable, but what is not
debatable is that it is not the role of this Court [or ours] to pronounce the
Second Amendment extinct.” Id. at 636. Nor may we relegate the bearing
of arms to a “second-class right, subject to an entirely different body of rules
than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.” McDonald, 130 S. Ct. at 3044.
The district court erred in denying the applicant’s motion for summary
judgment on the Second Amendment claim because San Diego County’s
“good cause” permitting requirement impermissibly infringes on the Second
Amendment right to bear arms in lawful self-defense.
REVERSED and REMANDED