Ninth Circuit Upsets California's Anti-Gun Applecart
In a 2-1 ruling, a three-judge panel of the Ninth U.S. Circuit Court of Appeals has struck down California concealed carry rules. The reason? They violate the Second Amendment of the Constitution- the one that ends with "right of the people to keep and bear arms shall not be infringed."
Seems two of the three judges believe California counties were wrong in requiring law-abiding applicants for concealed carry permits to show "good cause" beyond simple self defense to receive a concealed-carry permit.
California's highly-restrictive law requires applicants to "show good moral character," have good cause, and get firearms training. Many California sheriffs and police chiefs narrowly interpreted the "good cause" to the point of requiring a restraining order as evidence of an escalated threat beyond simple self-defense.
Now, the San Francisco-based appeals court has ruled that requirement to be "too strict" and contrary to the Supreme Court's landmark Heller v District of Columbia decision in 2008. That decision struck down Washington, D.C.'s longstanding ban on virtually all firearms by affirming the individuals right -even in the District of Columbia - to have handguns in their homes for self-defense.
"The right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense," Judge Diarmuid O'Scannlain wrote for the majority. The San Diego County Sheriffs Department's requirement that applicants must provide documentation to show a "special need" for permits "impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense."
Later in the opinion, however, O'Scannlain wrote: "We are not holding that the Second Amendment requires the states to permit concealed carry. But the Second Amendment does require that the states permit some form of carry for self defense outside the home."
At this point, the San Diego County Sheriff's Department has these options: follow the ruling and change policy to comply, request a special panel of eleven judges of the Ninth Circuit rehear the case, or, petition the Supreme Court to consider the case.
Can't speak to the legal subtleties of yesterday's ruling, but after a cursory review of other similar findings, it looks as if Peruta v. San Diego may be the decision that puts the conflicting opinions before the Supreme Court. a pretty good chance this ruling will wind up before the SCOTUS. Three other circuit courts have ruled in favor of other permit requirements very similar to those just overturned in California.
The ruling comes at a good time for pro-gun advocates. A brief filed with the Supreme Court by 34 members of Congress support the request for a Supreme Court review of the Drake case in Illinois. In their brief, the thirty three Representatives and one Senator argue the Court should affirm that the Second Amendment secures a right to carry handguns outside the home for self-defense.
The conflicting positions are obvious - and the Seventh Circuit has similarly ruled the Second Amendment does guarantee a citizen's right to carry handguns outside the home for self-defense. The Second, Third and Fourth Circuits, however, have found in favor of similar restrictions. Obvious conflicts such as these between the lower courts leave the Supreme Court little option but to consider the the point causing the disagreement.
According to legal expert Dave Kopel, the Peruta decision follows a two-step test adopted by many federal courts: 1) Does the conduct at issue involve Second Amendment rights? 2. If so, then apply heightened scrutiny; but if the law destroys the right, rather than merely restricts it, the law is categorically unconstitutional, with no need for detailed analysis under strict or intermediate scrutiny.
Where the sticking point comes is the interpretation of the Heller decision. In yesterday's decision, the Ninth said the Second, Third and Fourth Circuits were incorrect for basing their decisions on cases limiting the Second Amendment right to the militia. Heller, the Ninth says, teaches the Second Amendment right includes personal self-defense, and isn't dependent on militia service.
Republished from The Outdoor Wire.