A lot of people on the Daily Kos were excited by last week’s decision from the Ninth Circuit Court of Appeals. These people considered the en banc decision in Peruta v. County of San Diego to be a victory for gun control.
A word of advice: Don’t get too excited.
The Ninth Circuit Court is unusual. It is by far the largest district court in the U.S. It also has the highest percentage of decisions either overturned or vacated by the Supreme Court.
The court’s rulings apply only to the Ninth District, which is composed of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington State.
After reading the decision and the dissents, it became very clear that the court’s decision was incredibly narrowly focused. Since Peruta was joined with Richards v. Prieto, which applied to Yolo County, the two counties’ standards for issuance of a concealed carry permit were the real topic.
Since the judges did not consider changes in California law that took place after the original suit was filed in 2009, changes that were considered in the court’s original decision, there is definitely room for the Supreme Court to reverse or vacate the Ninth District’s latest decision. This is because that standards of licensure in San Diego and Yolo counties essentially prohibit a citizen from exercising their rights under the Second Amendment. Except in certain circumstances, open carry has been banned in California since 2013 and the standards for issuance in San Diego and Yolo counties make it virtually impossible to get a concealed handgun permit.
While a lot of people on both sides of the issue believe it is nearly impossible to get a concealed handgun permit in California, that is not true. While the sheriffs of San Diego and Yolo counties would not accept “self-defense” as a valid reason for a permit, other sheriffs in the state will.
What the Ninth District’s most recent decision does is open a rather nasty can of worms. While it would have been simple to affirm the original appeal court’s decision and tell the sheriffs in the two counties to rethink their policies, what is happening now could bring California’s firearm regulatory structure into question.
Dumb.
California is one of only six states that does not have a right to bear arms in its state constitution (the others are Iowa, Maryland, Minnesota, New Jersey and New York). Nonetheless, the decision in McDonald v. Chicago makes the Second Amendment binding on it via the Fourteenth Amendment.
The Supreme Court has decided that the Second Amendment affirms an individual right to keep arms and a right to bear them for self-defense both in the home and outside of the home.
Some states, such as Texas, do not allow the unlicensed carrying of a handgun, but it’s perfectly legal to carry a long gun (rifle or shotgun) in public. The Tarrant County Open Carry gang demonstrated this much to the embarrassment of most gun owners in the state. Tennessee had a similar law. These laws satisfied the Second Amendment and the decisions in Heller and McDonald.
California used to have a law that allowed the open carry of a handgun. In 1967, that changed when the Black Panthers invaded the capitol. Then the law allowed the open carry of an unloaded handgun, even with ammunition readily available. When members of the Open Carry movement in California started meeting at Starbucks, hysteria ruled again and open carry of any firearm was almost completely banned, except under certain conditions.
So essentially the vast majority of residents of San Diego and Yolo counties do not have a lawful way to carry a firearm for self-defense.
And that’s where California’s laws collide with the Constitution.
In the worst case, it may be that California will have to make a choice between repealing its open carry laws or relaxing standards for issuing concealed carry licenses.
As can be seen from the map above, of the nine states over which the Ninth District has jurisdiction, three don’t require a permit to carry a handgun openly or concealed; four are “shall issue” states. California and Hawaii are the only states with “may issue” laws. In addition, every state except California and Hawaii allows open carry without a permit.
Those of you hoping that Merrick Garland will be confirmed as the newest member of the Supreme Court because he will overturn Heller and McDonald might want to think about something. It’s very unlikely. Heller and McDonald are both fairly sweeping and the Court generally doesn’t like to reverse itself on recent decisions.
