Prof. Malcolm: 'Shall issue' ruling changes Cali in favor of gun owners

A leading scholar on the Constitution and the history of gun rights in America spoke to Guns & Patriots about the Nov. 12 decision by the Court of Appeals to affirm the Ninth Circuit’s ruling in the Peruta v. County of San Diego decision, restored the right to carry firearms in California.


“What it means is that California will join the great majority of states in having ‘shall issue’ issue concealed carry,” said Professor Joyce Malcolm, The Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University, Fairfax, Virginia.

In its Feb. 13 Peruta v. County of San Diego decision, the court dealt what the dissenting opinion called a sweeping judicial blow to the regulation of gun owners in the Golden State.

The court wrote: “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.’”

The court further wrote that the right to carry was not restricted to the four walls of one’s home. “Speakers of the English language will all agree: “bearing a weapon inside the home” does not exhaust this definition of “carry.”

Malcolm said the ruling is the end of the judicial road for California officials hostile to gun rights because the only court senior to the Appeals Court is the Supreme Court and the high court, which seems satisfied with its work on gun rights and not looking to weigh in again soon.


“All people have to do is apply for an application, a certificate and show that they’re a law-abiding citizen and of decent moral character, and have some sort of safety experience and training with guns–they are going to have to be given a right to carry,” she said.

“It going to completely change California, and California’s one of the last holdout states. There are 39 states now that have shall issue concealed carry, and the only ones that aren’t are on the coast,” she said. “Even Illinois apparently does. It’s going to be a tremendous change for gun owners in California.”

A remarkable factor in this story is that it was the Ninth Circuit Court that overturned California’s firearms regulation regime, where residents asked for permission from law enforcement agencies to have a gun, she said.

Malcolm said the straightforward language of the Second Amendment leaves judges no option, but to rule in favor of gun rights.

“It isn’t so much ‘infringe,’ as the right to bear arms,” she said.

“The Supreme Court and both the Heller decision in 2008, and the McDonald decision in Chicago in 2010 was very explicit about there being an individual right to have a firearm at home, and said it could be a handgun, and also a right to carry it,” the professor said.


“The idea that your right to carry a weapon should depend on the police deciding you have a good reason to carry it makes a nonsense of it being a right. I think that’s what the court really struck down, that that part of it was unconstitutional,” she said.

The Ninth Circuit is notoriously the most liberal collection of federal judges, she said. “ They have been overruled more times by the Supreme Court than any other circuit, and they’re heavily referred to as the ‘Nutty Ninth,’ but in this case they seem to be going more traditional route.”

Join the conversation as a VIP Member