No Second Amendment Right to Carry Concealed Weapon

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By Bernie Pazanowski

June 10 — The “right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment,” the en banc U.S. Court of Appeals for the Ninth Circuit held June 9 ( Peruta v. Cty. of San Diego, 2016 BL 183925, 9th Cir., en banc, No. 10-56971, 6/9/16 ).

The court looked at the right to bear arms in England as far back as 1299, as well as pre- and post-amendment history in America.

By the end of the 18th century, when the Second Amendment was adopted, “English law had for centuries consistently prohibited carrying concealed (and occasionally the even broader category of concealable) arms in public,” the opinion by Judge William A. Fletcher said.

Nothing in the “historical record suggest[s] that the law in the American colonies with respect to concealed weapons differed significantly from the law in England,” it said.

In dissent, Judge Consuelo M. Callahan argued that the history of the Second Amendment “indicates that the right to bear arms applies outside the home.” Judges Barry G. Silverman, Carlos T. Bea and N. Randy Smith joined the dissent.

Scalia Set Agenda

The late U.S. Supreme Court Justice Antonin Scalia's majority opinion in District of Columbia v. Heller, 554 U.S. 570 (2008), set the table for this decision, according to Mike McLively, a staff attorney with the Law Center to Prevent Gun Violence, San Francisco.

History “is certainly an important part” of the Second Amendment debate right now, because the Heller court “told us that the right derives from English common law,” McLively told Bloomberg BNA June 10.

To outline the scope of the Second Amendment, “we necessarily turn to history to try to determine what the framers had in mind.,” he said.

Professor Adam Winkler—a noted Second Amendment scholar at the University of California, Los Angeles, School of Law—agrees.

Scalia's Heller opinion said that “the scope of the Second Amendment was defined by American history and tradition,” Winkler told Bloomberg BNA June 11.

But even though some courts, such as the en banc Ninth Circuit here, “have rested their decisions primarily on historical materials, most courts focus instead on how challenged gun laws further important government interests,” he said.

While “the historical records can support a more limited reading of the scope of the Second Amendment,” McLively echoed Winkler, saying that future cases “will turn to more of an empirical analysis about whether gun regulations are justified by evidence that they are substantially related to the promotion of public safety.”

Attorneys who supported the gun rights advocates in this case didn't respond to Bloomberg BNA's requests for comments.

‘Good Cause.'

In California, a member of the general public can't carry a concealed weapon unless he has been issued a license. To receive a license, an applicant must show “good cause” to carry a concealed weapon. Local sheriffs are allowed to define good cause.

The sheriffs of San Diego and Yolo counties require applicants to state a specific reason why they need a concealed weapon for self defense, such as having documented threats against them.

The plaintiffs unsuccessfully argued that the state law and local regulations, taken together, violated their Second Amendment right to bear arms because the state also prohibits open carry of firearms. In support they cited Heller and McDonald v. City of Chicago, 561 U.S. 742 (2010).

Standard Is Reasonable

The good cause requirement “is a reasonable limitation of the right to carry firearms in public,” McLively said.

If a court ever decides that it isn't, though, McLively said that “the next best thing is a permitting system that requires applicants to pass rigorous safety training and proficiency classes.”

Winkler's take was a little different. He said that the problem with the kind of permitting laws like the one at issue “is that they give local law enforcement nearly unfettered discretion to decide who receives one.”

That amount of discretion “is inappropriate for any constitutional right,” he said.

In this case, however, the Ninth Circuit said “there is no right to carry concealed, so discretion was fine,” he said.

Not Decided

The Ninth Circuit made clear that it wasn't deciding “whether the Second Amendment protects the ability to carry firearms in public, such as open carry.”

Instead, it looked only at whether the amendment “protects, in any degree, the ability to carry concealed firearms in public.”

The “right secured by the Second Amendment is not unlimited,” the court said, quoting Heller.

And the right to carry a concealed weapon isn't now and never has been protected by the amendment, it said.

An “ overwhelming majority of the states to address the question—indeed, after 1849, all of the states to do so—understood that the right to bear arms, under both the Second Amendment and their state constitutions, as not including a right to carry concealed weapons in public,” the court said.

Several other circuits “have upheld the authority of states to prohibit entirely or to limit substantially the carrying of concealed or concealable firearms,” it said.

Concurring, Judge Susan P. Graber said that if the Second Amendment did apply “to concealed carry of firearms in public,” the laws in question would “survive heightened scrutiny.” Chief Judge Sidney R. Thomas and Judge M. Margaret McKeown joined the concurrence.

Not a Second-Class Right

Callahan's dissent asserted that the Second Amendment isn't a second-class constitutional guarantee. Heller and McDonald compel “the conclusion that the right to keep and bear arms extends beyond one's front door,” she said.

Taken together, California and the counties' scheme “is tantamount to a total ban on the right of ordinary citizens to carry a firearm in public for self-defense,” and is therefore unconstitutional, she said.

Silverman, joined by Bea, filed a separate dissent arguing that the scheme doesn't “survive any form of heightened scrutiny—strict or intermediate scrutiny.”

Gun Control Advocates Should Rejoice

In the end, Winkler said that this opinion is “a major victory for gun control advocates.”

It prevents California's densely populated cities, like Los Angeles and San Francisco, “from having to allow nearly anyone to carry a concealed weapon,” he said.

For McLively, the case's importance lies in its holding that “the public carrying of a loaded, concealed firearm is not part of the right to bear arms.”

Circuit Split Erased

Both Winkler and McLively also noted that the en banc holding here erases a circuit split caused by the original Ninth Circuit panel decision.

Now, “every federal court of appeals to address the question has found that reasonable limits on the carrying of concealed guns in public are constitutional,” McLively said.

So it's “less likely that the Supreme Court will take a concealed carry case anytime soon,” Winkler said.

Paul D. Clement of Bancroft PLLC, Washington, and Alan Gura of Gura & Possessky PLLC, Alexandria, Va., argued for the plaintiffs. California Solicitor General Edward C. DuMont argued for the state.

The advocacy group Everytown for Gun Safety, whose advisory board includes former New York City Mayor Michael Bloomberg, filed an amicus curiae brief in support of the counties. Bloomberg is the founder and majority owner of Bloomberg LP, parent of Bloomberg BNA.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com and Jeffrey D. Koelemay at jkoelemay@bna.com