Reversing the 2014 decision of a three judge panel, the 9th Circuit Court of Appeals has ruled that a California law placing severe restrictions on the ability of citizens to carry a weapon outside the home does not violate the Second Amendment, thus setting up another gun rights case for potential Supreme Court review at a time when the nation’s highest court remains essentially equally divided on the issue:
A federal appeals court in San Francisco ruled Thursday that the Second Amendment of the Constitution does not guarantee the right of gun owners to carry concealed weapons in public places, upholding a California law that imposes stringent conditions on who may be granted a concealed-carry permit.
The 7-to-4 ruling by the United States Court of Appeals for the Ninth Circuit, in San Francisco, overturned a decision by a three-judge panel of the same court and was a setback for gun advocates. The California law requires applicants to demonstrate “good cause” for carrying a weapon, like working in a job with a security threat — a restriction sharply attacked by gun advocates as violating the Second Amendment right to bear arms.
“Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public,” the court said in a ruling written by Judge William A. Fletcher.
The case was brought by gun owners who were denied permits in Yolo and San Diego Counties. The plaintiffs did not immediately say whether they planned to appeal to the United States Supreme Court.
“This is a huge decision,” said Adam Winkler, a professor of constitutional law at the University of California, Los Angeles, School of Law. “This is a major victory for gun control advocates. ”
The Supreme Court has ruled that individuals have a right to possess a weapon in their home. Thursday’s ruling centers on the next frontier in the gun-control debate.
“Probably the most important battleground of the Second Amendment has been whether there is a right to carry guns outside the home, and if there is, to what extent can states and localities regulate that right,” said Jonathan E. Lowy, the director of the Legal Action Project at the Brady Center to Prevent Gun Violence.
This decision by the 9th Circuit joins a host of other cases over the past decade or so since the Supreme Court’s landmark decision in District of Columbia v. Heller, which in many respects was the first case out of the Supreme Court to rule on exactly what sort of right the Second Amendment protected in the more than 200 years since it was ratified. In Heller, of course, the Court dealt with the restrictive handgun law in the District of Columbia which made it next to impossible for an average citizen to obtain a handgun for any purpose and keep it in their home for personal protection. After examining a host of material both preceding the adoption of the Second Amendment and contemporaneous to its ratification, the Supreme Court concluded in a 5-4 decision that, at the very least, the Amendment protects an individual right to own a handgun and to keep the weapon in the home in such condition that it could reasonably be used for personal protection if necessary. As a result, the District of Columbia law, which among other things required that the weapon be kept disassembled in a locked box was unconstitutional. In the ruling, written by Justice Scalia, the Court was careful to point out that its decision did not extend any further, nor did it mean that other regulations and restrictions dealing with guns were necessarily unconstitutional. Indeed, the Court’s ruling appeared to concede that some restrictions, such as those dealing with barring gun sales to the potentially dangerous, would obviously pass muster under the Court’s analysis. After Heller, the Court ruled in McDonald v. City of Chicago that the Second Amendment was, along with essentially the rest of the Bill of Rights, incorporated into the 14th Amendment, thus meaning that a Chicago ordinance that was very similar to the District of Columbia law was similarly unconstitutional.
In the six years since the Court’s decision in McDonald, the Supreme Court has not accepted another case dealing with gun rights issues, instead preferring to let the Circuit Courts hash the new questions that Heller and McDonald had raised, specifically the boundaries of the right that the Second Amendment protected and the extent of regulation that was permissible under the law. Among the most important of those questions has been the issue of laws which restrict the ability of gun owners to carry their guns outside the home. Logically, of course, there’s no reason why it shouldn’t, and while there is arguably a good case to be made that states should be permitted to create some reasonable regulations when it comes to the right to carry, whether it be open or concealed, it seems entirely illogical to say that there is no right to carry at all, or that the right can be so severely restricted by the state as to be unavailable to the average citizen. After all, the Amendment specifically refers to a right to keep and bear arms, and a legal regime where one is legally allowed to keep (i.e. own) a handgun but not allowed to bear (i.e., carry, whether open or concealed) makes no sense given that language.
This is one of the central issues Federal Courts in the post-Heller world have been dealing with. So far, the results have been somewhat mixed. In 2012, the Seventh Circuit Court of Appeals, struck down Illinois’s restrictive concealed carry law. Rather than appealing that ruling, the state revised their laws in a manner that at least tried to comply with the Court’s holding in the case. So far, that new law has not been challenged, so it’s unclear whether it would pass Constitutional muster or not, but the result has been that it is now far easier for Illinois residents to carry weapons in public legally. In 2013, the Supreme Court declined to hear an appeal arising out of the Second Circuit upholding New York’s restrictive concealed carry law. In the District of Columbia, a Federal District Court Judge has ruled once in 2014 and once in 2015, that the District of Columbia’s concealed carry law was unconstitutionally restrictive. And, now, we have this ruling from the 9th Circuit. Where it leaves the nation is, perhaps, where the Supreme Court wanted to leave it in the wake of Heller and McDonald, with the issue of what the limits of the Second Amendment are left largely to the states and the lower Federal Courts.
At some point, of course, the Supreme Court will be required to hear an appeal relating to the issue of what the Second Amendment says about the right to carry weapons outside the home. Because of the current 4-4 makeup of the Court, it seems unlikely that this case will end up being that case, however. Conservatives will be reluctant to take up the case because the inevitable result will be a 4-4 tie in which the 9th Circuit’s decision will be permitted to stand, this time with the apparent blessing of the highest court in the land. The Court’s liberal wing would likely be content with letting the ruling stand without further review. It’s possible, of course, that the Court would defer ruling on whether to accept the case until it has a ninth member, but at this rate it doesn’t look like that will happen until the late winter or early spring of next year. This much is clear, though, to a large degree the future of the Second Amendment’s potential expansion will depend on the outcome of the election. If Hillary Clinton wins, then its seemingly inevitable that whomever is appointed to replace Justice Scalia would be more likely to vote to uphold this Ninth Circuit decision than to strike it down. Thus, to some degree, the gun rights movement is in the unfortunate position of both hoping that Donald Trump is elected President and hoping that whomever he would appoint to the Supreme Court would rule in their favor. Given that there is no reason to believe any of the promises Trump has made about Judges or anything else, that’s a rather unfortunate position to be in.
Update: David Kopel has a detailed analysis of the decision.
Here’s the Ninth Circuit’s decision:
