9th District Court Of Appeals Reverses California “May Carry” Restrictions On Concealed Carry
Some states have “may carry” laws that put stipulations on concealed weapons permits. Often these stipulations are so onerous that few can meet them. When combined with no open carry laws, it is essential a ban on guns. In the minds of many, “may carry” has come to mean ” may not carry.” This decision by the 9th Circuit Court of Appeals strikes at the very heart of those laws.
It is the first major application of the Heller decision in which then Attorney General of Texas Ted Cruz was the lead counsel. He is often regarded as the principal contributor to the language and research of the Heller decision. It applies the tests in Heller to strike down key provisions of the method by which “may carry” has been applied in San Diego.
A bit of background might be useful. In California, open carry is illegal, so the only way to carry is through a concealed weapons permit. California law delegates to each city and county the power to issue a written policy setting forth the procedures for obtaining a concealed-carry license so that one “may carry” a firearm. In San Diego, that power resided with the county sheriff. In their policy for a concealed carry permit, an applicant had to show “good cause” with supporting documentation. This could include restraining orders, letters from law enforcement agencies or the district attorney familiar with the case, or some other pressing need. If the applicant cannot demonstrate “circumstances that distinguish [him] from the mainstream,” then that person will not qualify for a concealed-carry permit.
In other words, the second amendment only applied to “special people.” This essentially established two tiers of citizenship. When combined with the open carry ban, it effectively banned guns from the average citizen.
Several people who had been denied a concealed carry permit, including Edward Peruta took the County of San Diego to court over the matter because they believed the procedure made it impossible for the average person to obtain a concealed carry permit. The District court ruled California’s “important and substantial interest in public safety”—particularly in “reducing the risks to other members of the public” posed by concealed handguns’ “disproportionate involvement in life-threatening crimes of violence”—trumped the Second Amendment interest of the applicants.
Edward Peruta, Michelle Laxson, James Dodd, Dr. Leslie Buncher, Mark Cleary, and the California Rifle and Pistol Association Foundation, appealed the District court’s decision to the 9th Judicial Circuit Court of Appeals. The Circuit Court reversed and remanded the decision the lower courts on February 13, 2014. They held that the rules of the application process were so restrictive that the average person had no hope of obtaining a concealed carry permit and impermissibly infringed on the 2nd Amendment Rights of the Edward Peruta and the other applicants involved.
The format of the case is unusual, but the language of the case is clear and easy to read. Their decision states,
Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court [or ours] to pronounce the Second Amendment extinct.” Nor may we relegate the bearing of arms to a “second-class right,” subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.
The district court erred in denying the applicant’s motion for summary judgment on the Second Amendment claim because San Diego County’s “good cause” permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense. Reversed and Remanded.
The ruling has ramifications for several other states with similar laws. The case establishes legal precedent against the “may carry” states; these are some of the most restrictive gun states in the nation. States such as New York, New Jersey and Maryland have laws similar to California, where it is practically impossible to get a concealed carry permit. There are places in those states where the concealed carry permit process is extraordinarily similar to the process in San Diego.
The the majority was formed by Justices O’Scannlain & Callahan. It appears that O’Scannlain wrote the opinion. It is highly readable to the layman in plain English. Judge Thomas’s dissenting opinion is at the end, after the list of clerks and attorneys on the case. It is a highly unusual format for reporting cases-generally the dissent is before the list of attorneys, clerks, and the like who worked on the case. Some may interpret the format as a subtle “diss” on the dissenter. Judge O’Scannlain was appointed by Reagan, Callahan by G.W. Bush, and Thomas by President Clinton.
For the record, this case will be famous. Mr. Peruta has a youtube channel that many 2nd Amendment law geeks might enjoy. His new venture is to take on the gun laws in Connecticut. He began his series of legal proceedings in San Diego with a Facebook posting of a video back in 2009.