ACRU

Second Amendment Becomes a Second Class Right in California

2nd Amendment Rights - Gun on Flag

This column by ACRU Policy Board member Hans von Spakovsky was published June 9, 2016 by Conservative Review.

In a move that endangers public safety and the ability of California residents to defend themselves, an en banc panel of the Ninth Circuit Court of Appeals has 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.” Therefore, any prohibition or restriction a state or local government wants to impose on concealed carry is allowed, from the “good cause” requirement to obtain a license under review in this case, to a complete ban.

This overturns the decision of a three-judge panel of the Ninth Circuit that came to the opposite conclusion and struck down the “good cause” restriction. And this comes from the same Ninth Circuit that recently concluded that under the Fourteenth Amendment, Arizona is required to provide driver’s licenses to illegal aliens —- thus creating a constitutional right in that case, while dismissing an actual constitutional right in this case.

Thus, for example, living in a high-crime area will not be considered good cause, no matter how high the murder, rape, or robbery rate is or how likely it is that a resident may be victimized in such a crime.

In Peruta v. County of San Diego, a number of residents of San Diego and Yolo Counties, along with the California Rifle and Pistol Association, sued after their applications for concealed carry permits were denied because they could not show “good cause” other than wanting to be able to defend themselves. The Ninth Circuit took advantage of the fact that the U.S. Supreme Court has not yet ruled on the concealed-carry issue. The two prior cases where the Supreme Court established that the Second Amendment is a personal right to keep and bear arms involved the virtual bans on the ownership of handguns imposed by the District of Columbia and Chicago: District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).

California law requires that applicants for a concealed carry permit establish “good cause” to acquire such a permit, but leaves it up to the sheriffs of each county to define what “good cause” means. The state law otherwise prohibits the carrying of a weapon, whether concealed or openly, in any public place, on any public street, or even in your automobile, although there are certain exceptions for individuals such as active or retired “peace officers.” In San Diego County, good cause is “a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way. Simply fearing for one’s personal safety alone is not considered good cause.”

The sheriff of that county requires “documented threats, restraining orders and other related situations where an applicant can demonstrate they [sic] are a specific target at risk.” Thus, for example, living in a high-crime area will not be considered good cause, no matter how high the murder, rape, or robbery rate is or how likely it is that a resident may be victimized in such a crime.

The Ninth Circuit bases its conclusion that such a requirement is constitutional, and that the Second Amendment does not extend to carrying concealed firearms in public, to what it erroneously calls an “overwhelming consensus of historical sources.” It goes through a long history of bans on the ownership of weapons in England starting in 1299, and then says there is no reason to believe that the “law in the American colonies… differed significantly from the law in England.”

But the court ignores the fact that these English laws —- and the first laws in America when we were still a colony of the British Empire —- were intended to repress the possibility of rebellion by making the public defenseless against the monarchy. They overlook the history of Lexington and Concord and the British attempt to seize American arms, a history very much in the minds of the Founders when they drafted the Second Amendment. The Framers of the Bill of Rights specifically wanted to ensure that Americans remained armed so that this British history could not be repeated in the United States by a repressive central government.

The court does cite some early American cases involving state statutes that restricted concealed carry. But it overlooks the fact that those statutes were written at a time when the open carrying of firearms was almost universal —- something that the California law specifically prohibits —- and that, as the dissenting judges pointed out, those cases “presumed a right to openly carry a firearm in public.” In a separate case over the District of Columbia’s similar restrictions on concealed carry, Judge Richard Leon of the U.S. District Court for the District of Columbia recently concluded that it “is unquestionable that the public carrying of firearms was widespread during the Colonial and Founding Eras.”

Five Ninth Circuit judges dissented from the majority opinion, arguing that “the Second Amendment is not a ‘second-class’ constitutional guarantee.” According to the dissent authored by Judge Consuelo Maria Callahan, “any fair reading of Heller and McDonald compels the conclusion that the right to keep and bear arms extends beyond one’s front door.” Just like the rest of the Bill of Rights, “this right is indisputably constitutional in stature and part of this country’s bedrock.” In fact, the restrictions on licensing imposed by California and its counties are “tantamount to a total ban on the right of an ordinary citizen to carry a firearm in public for self-defense.” Thus, in the dissenters’ view, there is no question that the public’s “Second Amendment rights have been violated.”

There is little doubt that the battle over whether the Second Amendment protects the right to carry a gun outside of your home will eventually go to the U.S. Supreme Court. Although the Second, Third, Fourth, and Tenth Circuit Courts of Appeal have all agreed with the Ninth Circuit, the Seventh Circuit has held the has held that the Second Amendment does create a right to self- defense outside of the home.

Given that the Second Amendment was upheld in both Heller and McDonald by only a single vote , it is even more important that the next justice on the Supreme Court be a constitutional conservative who will uphold the Bill of the Rights. Otherwise, Americans’ Second Amendment right will become only a “second-class” guarantee that any local or state government can violate at will.