NRA Explore

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.

TRENDING NOW
California: Governor Brown Takes Action on Final Firearm-Related Bills

Monday, September 26, 2016

California: Governor Brown Takes Action on Final Firearm-Related Bills

Today, Governor Brown made his decision on the final firearm-related bills of the 2016 legislative session that made it to his desk.   Governor Brown vetoed two anti-gun bills, AB 450 and SB 1332, and signed ...

Not The Victim Hillary Needs

News  

Tuesday, September 27, 2016

Not The Victim Hillary Needs

This feature appears in the October ‘16 issue of NRA America’s 1st Freedom, one of the official journals of the National Rifle Association. “Why can’t everyone just have their DNA on file? Then it would ...

California: Referendum Update

Tuesday, September 27, 2016

California: Referendum Update

On behalf of the National Rifle Association (NRA), we would like to thank all of the volunteers and individuals who participated in the Veto Gunmageddon ballot referendum qualification effort.  Despite the tremendous efforts of all involved, ...

Hillary: Contempt For The Truth And American Freedom

News  

Thursday, September 29, 2016

Hillary: Contempt For The Truth And American Freedom

There is no greater danger to American liberty and to the security of our nation than a Hillary Clinton administration. To see the future if Clinton were to take the White House, look no further ...

Trump: The Official NRA Q&A

News  

Thursday, September 29, 2016

Trump: The Official NRA Q&A

This year’s race for the White House is like no other in our history. Hillary Clinton has made it clear that, if elected, she will come after our firearm freedoms on her very first day ...

War on Terror or a War on Guns?

News  

Friday, September 23, 2016

War on Terror or a War on Guns?

Sadiq Khan, the mayor of London, was in New York City recently on an official visit. Commenting on the bombs that exploded while he was in town, he opined that such attacks are now simply ...

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

News  

Friday, July 1, 2016

California Governor Signs Draconian Gun Control Package into Law

Fairfax, Va.— California Gov. Jerry Brown signed into law on Friday a package of gun bills that were rushed through the state legislature with no regard for proper process. The National Rifle Association Institute for ...

Virginia Politician and Clinton Backer Brands Trump Supporters as “Mentally Deficient”

News  

Friday, September 23, 2016

Virginia Politician and Clinton Backer Brands Trump Supporters as “Mentally Deficient”

With the presidential race tighter than ever as it heads into its final stretch, panicked Hillary Clinton supporters are desperate to find a way to discredit, not just Donald Trump, but anyone who would dare ...

Show Your Support—NEW NRA Yard Signs Available!

News  

Friday, September 23, 2016

Show Your Support—NEW NRA Yard Signs Available!

Show your support for NRA and the Second Amendment this election cycle by purchasing an NRA yard sign.  With everything that is at stake this year, including the Presidency, the balance of the U.S. Senate ...

MORE TRENDING +
LESS TRENDING -
NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.