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Federal Appellate Court in California Hears Pivotal Case on Bearing Arms Outside the Home

Thursday, June 18, 2015

The never-ending battle against massive resistance to the Second Amendment saw another skirmish yesterday with oral arguments in the rehearing of the critically important NRA-supported case of Peruta v. San Diego County. 

As we reported earlier this year, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit had initially ruled favorably for the plaintiffs. In a tremendously-reasoned and thoughtful opinion, the panel held that the San Diego County Sheriff’s policy of refusing to issue licenses to carry firearms in public unless an applicant could demonstrate a special need – the so-called “good cause” requirement – was a violation of the Second Amendment.  

Nevertheless, in March, a majority of judges on the Ninth Circuit voted to have the case reheard by a broader “en banc” selection of the circuit’s judges. That hearing occurred yesterday in San Francisco before a panel of 11 judges (video of the proceedings may be viewed at this link). 

Arguing on behalf of the Peruta plaintiffs, as before the earlier three-judge panel, was former U.S. Solicitor General Paul Clement.  Through his skillful arguments, Clement created a situation in which California’s Deputy Attorney General was forced to concede that the core Second Amendment right extends beyond the home.  

Unless the Ninth Circuit judges disagree on that point, the case will likely come down to whether the state and counties can justify carving out entire jurisdictions within the state from places where loaded firearms may lawfully be carried.

The first question to be resolved is whether the court will even be willing to consider California as a party when rendering a final decision. Although the state’s attorney acknowledged that California officials were aware of the earlier proceedings, he admitted that they declined to participate.  This led to sharp questioning from one judge as to why the state should now be allowed to participate in a case in which it had previously shown so little interest. If this were any other case, the judge stated, the state’s intervention would not be allowed. Whether that implied the case should be treated differently because it concerned the Second Amendment or that the state had missed its chance is unclear. In any event, the court had California’s attorney on the defensive almost immediately.

When asked about the state’s view of the statutory requirement for “good cause”, the attorney said state policy is to allow local sheriffs, who best understand local conditions and are accountable to their constituents politically, to make that decision. This led one judge to observe, correctly, that the Second Amendment cannot mean different things from one county to the next. 

The state then tried to characterize the plaintiffs’ claim as insisting they had a right to carry concealed in the public areas of towns and cities, something the attorney for the state said the Second Amendment has never been understood to protect. A judge then asked what happens when both concealed and open carry are prohibited, as is the case in California counties like San Diego, which refuse to recognize self-defense as sufficient “good cause” for the granting of permits. On this point, the state tried to rely on various exceptions to the bans on carry, including one that applies to “immediate necessity,” to argue the burden on carry is minimal. But a judge remarked that she didn’t understand how such exceptions were even supposed to work.

The attorney representing Yolo County then tried to argue that most areas – even in counties where getting a permit is very difficult – remain open to some form of carry, because private property owners have the option to allow unloaded open carry on their premises, and some rural areas are exempt from the ban on unloaded open carry. He went on to theorize that the burden imposed by the county policy was minimal, as most private property owners wouldn’t allow licensees to carry concealed, loaded guns on their premises anyway, and people don’t just walk up and down the streets for no reason. A judge then pointed out the obvious, that people do indeed stroll around in public areas of cities and towns.

In short, the lawyers for both the state and county attempted to argue that even if California’s law is very restrictive, since exceptions to the restrictions allowed some citizens to carry in limited circumstances, the restrictions were reasonable.  

Of course, that the Second Amendment was never meant to protect firearm possession for some citizens some of the time is the thrust of the Peruta challenge at its core, but this is clearly the view of the state and county lawyers arguing the case in support of current California law.

On rebuttal, Clement quickly dispatched the county attorney’s argument that carry was still permitted in most rural places, with references to provisions of state law that clearly showed that argument to be false. He then put the central issue of the case in context, by saying his clients were merely asking to be able to exercise a right that all agreed existed – to carry a readily operable firearm in public for self-defense – in developed areas of cities and towns.

Longtime observers of Second Amendment litigation initially reacted with dismay to the composition of the larger Ninth Circuit panel chosen to decide the case on rehearing. Nevertheless, the proceedings featured some tough questions for the state and county attorneys and provided at least some reasons for optimism.  Chief among these was California’s admission that the fundamental, individual Right to Keep and Bear Arms is not limited to the home, as well as the discussion of a current split among the Circuit Courts of Appeals, which might pave the way for the U.S. Supreme Court to ultimately decide that critical issue.  On the other hand, nearly half the panel sat silent during the argument, showing no inclination one way or the other.

A decision in the case could come at any time. When it does, count on your NRA to provide the essential details. Whether the case will ultimately be decided by the Supreme Court remains to be seen, but the battle for judicial recognition and respect of the Second Amendment will surely continue.

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