On June 9th, in Peruta v. County of San Diego, the Ninth Circuit held that “the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” Slip op. at 11. Some consider the ruling a major blow to gun rights, but its effect on Second Amendment law may be getting blown out of proportion. Because the court’s holding reached a limited issue – or perhaps more accurately because the court limited the issue to reach its holding – the lasting impact of the case may itself be limited.
The Ninth Circuit went to great lengths to address only the issue of whether a ban on the concealed carrying of firearms – in complete isolation – violates the Second Amendment. The court avoided the substantially more important (and relevant) issue of whether a concealed carry ban is constitutional where the open carrying of firearms is also banned—thereby entirely prohibiting the carrying of firearms in public. Rights advocates should be relieved to learn that the court’s extensive historical analysis strongly contradicts any assertion that simultaneous prohibitions on both concealed carry and open carry would be constitutionally permissible.
Facts of the Case
In the State of California, citizens are prohibited from openly carrying firearms, and a citizen must obtain a license to legally carry a concealed firearm. Cal. Penal Code §§ 25850, 26350, 25400. To obtain a license, an applicant must (among other things) show “good cause.” What constitutes good cause is left to each county’s sheriff to decide. § 26160.
The sheriffs of San Diego and Yolo Counties defined good cause as having a particularized reason for needing a concealed firearm for self-defense. “Simply fearing for one’s personal safety alone is not considered good cause” in San Diego County. Slip op. at 16. Similarly, “self-protection and protection of family,” absent credible threats of violence, is insufficient in Yolo County. Id. at 18. Applicants who were denied permits for failing to show good cause under the particularized reason requirement alleged that the counties’ interpretation and application of the good cause requirement violated the Second Amendment.
Two challenges were initially brought to the San Diego and Yolo County good cause requirements. The district court in each case granted summary judgment in favor of the county and held the policies constitutional. Peruta v. Cty. of San Diego, 758 F.Supp.2d 1106 (S.D. Cal. 2010); Richards v. Cty. of Yolo, 821 F.Supp.2d 1169 (E.D. Cal. 2011). Notably, after the district court decisions but before the cases reached the Ninth Circuit, the state of California banned open carry.
Subsequently, in the Peruta appeal in 2014, a three-judge panel in the Ninth Circuit found San Diego County’s concealed carry scheme unconstitutional, holding that the Second Amendment requires that “the states permit some form of carry for self-defense outside the home.” Peruta v. Cty. of San Diego, 742 F.3d 1144, 1172 (9th Cir. 2014). Then, based on the Peruta panel decision, the Richards panel held Yolo County’s concealed carry scheme unconstitutional. Richards v. Prieto, 560 F. App'x 681 (9th Cir. 2014). But on rehearing en banc, the Ninth Circuit upheld both statutory schemes, focusing on a narrower issue than any of the previous courts and holding that “the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public.” Slip op. at 45.
Identifying the Issue
The key difference between the now-vacated panel decision and the en banc decision is that the panel considered the burden on concealed carry in conjunction with California’s recent prohibition on the open carrying of handguns; whereas the en banc court considered the burden on concealed carry in a vacuum—choosing to elide the fact that during the pendency of the appeals California had prohibited the open carrying of handguns. Thus, the panel had tackled the fundamental-right-defining question of whether public carrying can altogether be banned, whereas the en banc court addressed the far less demanding question of whether a prohibition on concealed carry in and of itself violates the Second Amendment.
The district courts and Ninth Circuit panels all based their holdings on the availability of open carry (the district courts upheld the concealed carry restrictions based on the then-availability of open carry, while the Ninth Circuit panels struck down the restrictions based on the then-unavailability of open carry). Conversely, the en banc court jumped through hoops to avoid considering whether alternative channels to bear arms existed.
By considering the concealed carry restrictions in isolation and circumventing the more pressing question of the extent to which the right to bear arms extends beyond the home, the en banc court did a great disservice to the citizens of San Diego and Yolo Counties by failing to consider the constitutionality of the complete ban on public carrying that they are now subjected to.
The en banc court conducted an extensive historical analysis before concluding that at the time of the Second Amendment’s ratification and at the time of its incorporation by the Fourteenth Amendment, the right to keep and bear arms was not understood to protect the carrying of a concealed firearm.
While this historical analysis does indeed support the court’s holding, it also happens to do more to support a right to bear arms in public than it does to support a ban on bearing arms in public.
Not a single case cited by the court supports a complete ban on bearing arms. The cases can be broken down into four distinct groups, all of which favor the right to publicly bear arms:
- Cases that upheld a concealed carry ban when, or because, open carry was available: State v. Reid, 1 Ala. 612 (1840); State v. Chandler, 5 La. Ann. 489 (1850); Nunn v. State, 1 Ga. 243 (1846); Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013); and based on the way other courts applied its one sentence opinion, State v. Mitchell, 3 Blackf. 229 (1833). In Robertson v. Baldwin, 165 U.S. 275 (1897), which the en banc court deemed perhaps the most important case, the Supreme Court identified laws prohibiting the carrying of concealed weapons as the exceptions to the right to keep and bear arms—thus indicating that open carry is not an exception to the right to keep and bear arms.
- A case that struck down a concealed carry ban: Bliss v. Commonwealth, 12 Ky. 90 (1822). In Bliss, the court struck down a concealed carry ban because it saw no difference in concealed carry and open carry; and since open carry was constitutionally protected, the court reasoned, concealed carry must also be constitutionally protected. Id. at 92.
- Cases that relied on the pre-Heller misbelief that the Second Amendment confers collective, rather than individual, rights: Aymette v. State, 21 Tenn. 154 (1840); State v. Buzzard, 4 Ark. 18 (1842); English v. State, 35 Tex. 473 (1871); State v. Workman, 14 S.E. 9 (W. Va. 1891).
- Cases decided under the assumption that the Second Amendment applies outside the home: Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013); Kachalsky v. Cty. of Westchester, 701 F.3d 81 (2d Cir. 2012).
The only other case cited by the en banc court, Walburn v. Territory, 59 P. 972 (Okla. 1899), provided no indication of whether open carry was permitted, whether the court properly interpreted the right to keep and bear arms as an individual right, or whether Walburn was a law-abiding citizen who had not previously forfeited his right to bear arms. In Walburn, the court used a single paragraph to dismiss Walburn’s claim that his conviction for carrying a revolver on his person was unconstitutional, because “[n]o authorities are cited in support of this position, nor is the proposition very earnestly urged.” Id. at 973.
Similarly, not a single statute or constitutional provision cited by the court supports a complete ban on bearing arms. In fact, every state constitution and statute cited by the court either left open carry available, or allowed the legislator to prescribe the manner in which arms could be borne. Every statute and constitutional provision cited therefore supports the panel holding that a state must permit law-abiding citizens some method of carrying arms in public.
Anyone discouraged to learn that longstanding precedent supports the prohibition of the concealed carrying of firearms should be encouraged to learn that the right to bear arms nonetheless retains sound constitutional footing. When the Peruta panel held that the Second Amendment requires “that the states permit some form of carry for self-defense outside the home,” although not necessarily concealed carry, it was hailed as a victory for gun rights. The en banc decision does not contradict that holding. Rather, by and large, the en banc opinion actually supports the panel holding. Further, reading between the lines, it seems plausible that if the en banc court could have justified a ban on public carrying altogether, it would have.
The greatest threat to the right to bear arms presented by the en banc Peruta decision seems to be the piecemeal approach to the evisceration of the right that the decision could be read to encourage. As Judge Callahan’s thoughtful dissent recognized, “Constitutional rights would become meaningless if states could obliterate them by enacting incrementally more burdensome restrictions while arguing that a reviewing court must evaluate each restriction by itself when determining its constitutionality.” Slip op. at 75-76 (Callahan, J., dissenting). Judge Callahan effectively explained that such an approach is inconsistent with the way courts have historically interpreted constitutional rights and other fundamental freedoms, but nevertheless, the possibility that future courts wishing to treat the Second Amendment as a second-class right could follow this approach is concerning.
In the end, the en banc Peruta decision did erase a well-reasoned panel opinion celebrated by rights advocates, but its effect on the right to bear arms is not as troubling as it might seem at first blush.