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Coast-to-Coast Action in Right-to-Carry Cases

Monday, June 24, 2013

Just a week before December’s NRA victory in Shepard v. Madigan, the San Francisco-based U.S. Court of Appeals for the Ninth Circuit heard arguments against the abuse of California’s permitting structure by local authorities. The NRA-backed case of Peruta v. County of San Diego targets San Diego County, and Richards v. Prieto (a non-NRA case) challenges the practices of Yolo County. 

At issue in both cases is the California law that says a resident may only receive a carry license if he or she shows “good cause.” Issuing authorities such as county sheriffs or police chiefs have significant leeway in how “good cause” is interpreted, with some officials granting nearly every permit when the applicant passes a background check, and others imposing a nearly impossible standard. Further burdening the right, in 2011, California banned the unlicensed open carry of unloaded handguns, making it impossible to legally carry a handgun in any condition for self-defense outside the home without a license.

Representing Peruta was former U.S. Solicitor General Paul Clement. Clement argued that in Heller, the Supreme Court clearly did not limit the right to self-defense to the home. He went on to explain in detail the court’s analysis of the right to “bear” arms. For instance, the Supreme Court stated in Heller that the Second Amendment would not prevent restrictions on carrying firearms in “sensitive places,” implying that there must be some right to do so in places that are not “sensitive.” The attorney for San Diego responded by claiming there is a strong government interest in restricting carry outside the home due to the “deadly nature” of firearms—an argument epitomized by his statement that “a handgun with a couple of clips is a weapon of mass destruction.”

Also heard before the Ninth Circuit were arguments in Baker v. Kealoha, which challenges Hawaii’s near-complete ban on the issuance of concealed carry permits. Hawaii’s statute says that concealed carry permits shall be issued only “in an exceptional case” or “where urgency or need has been sufficiently indicated,” and gives police chiefs arbitrary power to decide whose case is “exceptional.” (In practice, no permits are ever issued, a fact that the government’s attorney carefully dodged during the argument.)

Meanwhile, just a week earlier and on the other side of the country, the U.S. Court of Appeals for the Second Circuit on Nov. 27 rejected a challenge to New York’s requirement—similar to California’s—that permit applicants have “proper cause” to get an unrestricted carry license. (That decision was in the non-NRA case of Kachalsky v. County of Westchester.) While the Second Circuit noted that “[t]he plain text of the Second Amendment does not limit the right to bear arms to the home,” it concluded that the right is more limited outside the home and that the “proper cause” requirement is “substantially related to New York’s interests in public safety and crime prevention.”

Finally, on March 21, a three judge panel for the U.S. Court of Appeals for the Fourth Circuit decided another non-NRA case, Woollard v. Sheridan. In that case, the state of Maryland appealed a decision by the United States District Court for the District of Maryland striking down the state’s requirement that a permit applicant have “good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.” Maryland authorities do not traditionally consider self-defense a “good or substantial” reason to carry. NRA submitted a “friend of the court” brief in the case to make clear that “[b]ecause it almost completely forecloses the right to carry handguns for self-defense outside the home, Maryland’s statute is in conflict with the Second Amendment.”

Unfortunately, the panel ruled in favor of the state, overturning the district court’s decision. Writing the opinion, Judge Robert Bruce King argued that the federal district court applied too high a standard of review to Maryland’s law, and that if the law was examined in the way the appeals court preferred, the “State has demonstrated that the good-and-substantial-reason requirement is reasonably adapted to Maryland’s significant interests in protecting public safety and preventing crime.” A request for review by the full Fourth Circuit was denied on April 16.

With all of these cases pending, the coming weeks and months will surely bring significant rulings that affect every American’s right to self-defense outside the home. No matter the result, the NRA will continue to fight in the courts and in the state legislatures to protect the right to self-defense recognized in Heller and so articulately described by Judge Posner in the Seventh Circuit’s Shepard ruling.

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