On June 9, 2016, an en banc panel of the Ninth Circuit Court of Appeals issued its highly publicized, and highly scrutinized, decision in Peruta v. County of San Diego. In its decision, the court clumsily mischaracterized the issue and ignored the complete ban on bearing arms facing the plaintiffs, instead determining only that a concealed carry ban in isolation is constitutional. While the court’s holding was indeed supported by substantial precedent, it failed to even address the argument presented by the plaintiffs—that the Second Amendment protects the right to publicly bear arms in some manner, whether openly or concealed. Thus, after 7 years of litigation, the plaintiffs’ dispute remains completely unresolved. Here is a quick update on what has happened since.
On June 23, 2016, the appellants petitioned (here and here) the Ninth Circuit for a full court en banc rehearing. (The June 9th en banc decision was issued by an eleven-judge panel, and overturned a decision issued by a three-judge panel. These petitions requested a rehearing by the full court, which currently consists of 29 active judges.) On August 15, 2016, the court denied the petitions, with no explanation other than that “[t]he matter failed to receive a majority of the votes of the nonrecused active judges.”
Peruta’s counsel has stated that “an appeal to the Supreme Court is possible,” but significant uncertainties loom over a prospective Supreme Court case. First, given the current 4-4 split on the Court, there is a risk in appealing any Second Amendment loss to the Court. (And it is possible that the Court will become even more hostile to the Second Amendment after the election.) Second, there is a chance that the Supreme Court would simply address the issue as it was (mis)defined by the en banc court. So the Peruta plaintiffs may be looking at an uphill battle, despite clearly having the law on their side—a plight far too common for Second Amendment plaintiffs. Third, there is a distinct possibility that the Court will deny certiorari, as it so frequently has for Second Amendment cases since its 2010 McDonald v. City of Chicago decision. Because the Peruta decision held only that a concealed carry ban in and of itself is constitutional, there is no split among the Circuit Courts. No Circuit has held that concealed carry must be permitted in all circumstances. Conversely, the only other Circuit to directly address the issue, the Tenth Circuit in Peterson v. Martinez, also held that concealed carry is not constitutionally guaranteed.
On August 17, 2016, two days after the Ninth Circuit denied the petitions for full court en banc rehearing in Peruta, a challenge to California’s open carry prohibition was filed in the Central District of California. The complaint in Flanagan v. Harris states:
In light of [Peruta], Plaintiffs ask this Court to hold those provisions of California law that prohibit them from openly carrying firearms unconstitutional. Plaintiffs nevertheless also challenge Defendants’ restrictions that bar them from obtaining concealed Carry Licenses.
In sum, the Supreme Court has made clear that Plaintiffs’ rights to bear arms cannot be completely foreclosed. Because California law prohibits them from openly carrying firearms and Defendant McDonnell denies them the only lawful means of carrying a concealed firearm, Plaintiffs are completely barred from exercising their right to bear arms—in any manner. They are thus entitled to relief from the complete abrogation of their fundamental rights.
Accordingly, Plaintiffs seek declaratory relief confirming that (1) the Second Amendment protects the right to carry a firearm for self-defense in public and (2) Defendants’ total denial of the exercise of that right violates the Second Amendment.
Thus, the plaintiffs are challenging the open carry prohibition in a way that ensures that the court will consider the full context of the carrying restrictions burdening the plaintiffs. That is, the court will not be able to place the open carry ban in a vacuum, and justify it by relying on schemes that permitted restrictions on open carry because concealed carry was available, as the Peruta court did to uphold the concealed carry ban.
Regardless of the result in the district court, it seems likely that Flanagan will be appealed to the Ninth Circuit. If the Ninth Circuit upholds the restrictions, this case would seem better positioned to reach the Supreme Court than Peruta. As I have previously explained, every authority the Peruta court relied on to uphold the concealed carry ban supported a right to bear arms in public (the only exceptions being cases that relied on a pre-Heller collective right interpretation of the Second Amendment). Further, so far no Circuit Court has held that the Second Amendment does not apply outside the home. The Seventh Circuit held that it definitely does apply outside the home in Moore v. Madigan, where it struck down a complete ban on bearing arms similar to the one burdening the Flanagan plaintiffs. The Second Circuit decided that the Second Amendment “must have some application” outside the home. The Third, Fourth, and Tenth Circuits have assumed that the right applies outside the home. And more importantly, the Supreme Court has strongly indicated that the Second Amendment right applies beyond the home in both D.C. v. Heller and McDonald, and in National Federation of Independent Business v. Sebelius, the Court identified “the right to bear arms” as one of the “protected civil rights.” (Notably, this part of the opinion was delivered by Chief Justice Roberts and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.) And, of course, the text of the Second Amendment plainly includes the right to bear arms.
Judge Wilkinson of the Fourth Circuit once referred to the right to bear arms beyond the home as a “vast terra incognita that courts should enter only upon necessity and only then by small degree.” The Ninth Circuit may have dodged the issue in Peruta, but Flanagan will force the court to enter that “vast terra incognita.”