“We are called upon to decide whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense,” wrote Judge Diarmuid O’Scannlain for the U.S. Court of Appeals for the Ninth Circuit in Peruta v. County of San Diego.
A three-judge panel of that court went on with a 127-page opinion to hold that the Second Amendment extends outside the home, striking down San Diego’s ordinance requiring a person to show some special cause before they can receive a permit to carry a concealed weapon.
This case could be at the U.S. Supreme Court within a year or two.
California is one of the few states where weapons permits are “may issue” instead of “shall issue,” meaning that the government has discretion on whether to issue permits, even if the applicant is a law-abiding and peaceable adult. Specifically, California law allows local officials to decide. The county sheriff in San Diego requires that a person show “good cause,” such as being threatened by an abusive ex-spouse, and explicitly says that general self-defense is not a justification for having a gun in public.
In 2008, the Supreme Court held in D.C. v. Heller that the Second Amendment is a right for private citizens to own firearms, and struck down a D.C. law against having handguns in the home. Then in 2010, the Court held in McDonald v. Chicago that this right to bear arms is also a fundamental right under the Fourteenth Amendment, making it a right that can’t be subverted by state and local governments, striking down Chicago’s ban on handguns in the home.
Judge O’Scannlain correctly noted that the Supreme Court did not directly address other questions about the scope of the Second Amendment, but then also correctly noted that the Supreme Court’s “approach points in a general direction.” He then engaged in a historical analysis focusing on the Constitution’s text, quoting Heller’s statement that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope is too broad.”
O’Scannlain continues by quoting several previous federal cases, reasoning:
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 [Supreme] Court already has supplied the word’s plain meaning: At the time of the founding, as now, to bear meant to carry. [This means] to 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.
O’Scannlain agrees with another federal appeals court from 2012 that a person typically has more concerns for his safety and thus for self-defense when he is out walking the streets than when he is in the safety of his own home with locked doors. He observes:
To be sure, the idea of carrying a gun in the clothing or in a pocket, for the purpose… of being armed and ready, does not exactly conjure up images of father stuffing a six-shooter in his pajama’s pocket before heading downstairs to start the morning’s coffee… Instead, it brings to mind scenes such as a woman toting a small handgun in her purse as she walks through a dangerous neighborhood, or a night-shift worker carrying a handgun in his coat as he travels to and from his job site.
The opinion then holds, in the broadest ruling to date on the right to bear arms:
Because the Second Amendment confers an individual right to keep and bear arms, we must assess whether the California scheme deprives any individual of his constitutional rights. Thus, the question is not whether the California scheme (in light of San Diego’s county 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. Then answer to the latter question is a resounding “no.”
The National Rifle Association praised the Peruta decision. “No one should have to wait until they are assaulted before they are allowed to exercise their fundamental right of self-defense,” said Chris W. Cox, Executive Director of the NRA’s Institute for Legislative Action. “The U.S. Supreme Court has already affirmed our Constitutional right to Keep Arms, and today, the 9th Circuit Court of Appeals affirmed the right to Bear Arms. Our fundamental, individual Right to Keep and Bear Arms is not limited to the home,” concluded Cox.
This was a 2-1 decision, and is likely not the end of the case. Judge O’Scannlain, a Reagan appointee, was joined by Judge Consuelo Callahan, who was appointed by George W. Bush. Judge Sidney Thomas dissented, who was appointed by Bill Clinton and was publicly considered for a Supreme Court nomination by Barack Obama. The gun-rights supporters were represented in Peruta by the famous Supreme Court lawyer Paul Clement.
San Diego may well now petition the Ninth Circuit to rehear the case en banc, meaning that eleven of the court’s judges would rehear the case. Given its heavy leftward bent, an en banc court would very likely reverse the three-judge panel.
But either way, this case is also a good candidate for Supreme Court review. Depending on whether this case goes to an en banc court, it could be before the Supreme Court in 2015 or 2016–not long before the presidential election.
Ken Klukowski is senior legal analyst for Breitbart News and on faculty at Liberty University School of Law. Follow him on Twitter @kenklukowski.