Doug Davis

Doug Davis

Doug lives on the West Coast and writes on law and liberty.
Doug Davis

Freedom fighters across America are well-aware that the Second Amendment has come under heavy government fire and control. Some states are worse than others when it comes to infringing upon a citizen’s gun rights. Not surprisingly, such is the situation in the Golden State. A case from California, Peruta v. County of San Diego is about to come before the U.S. Supreme Court, and the stakes for gun rights advocates are high. First, some background:

California criminalized handgun open carry of a loaded or unloaded firearm in the most populated areas throughout the state back in 2012.   Violation of this legislation is a misdemeanor punishable by up to a year in the county lock-up or a fine of up to one thousand dollars.  As well, California has authorized local law enforcement —  mostly county sheriffs — to issue statewide concealed carry permits at their discretion, for “good cause.”   Unfortunately, because political beliefs of law enforcement officers vary widely, there exists a wide range of “good cause” standards across the state.

As a general rule, most rural Sheriffs accept self-defense as “good cause,” so citizens of rural counties enjoy the right to carry concealed statewide after a background check with a corresponding fee. Unfortunately, most citizens of urban areas do not experience equal protection, as local law enforcement restrict permits with vague — and some would argue — draconian standards that violate their Constitutional rights.  Those who choose to carry concealed without a permit face either misdemeanor (up to one year and one thousand dollars) or felony charges (up to three years and ten thousand dollars) depending on the circumstances of the arrest. San Diego County is among those that restrict the issuance of concealed carry permits with a heavy hand.

According to The Christian Science Monitor, The San Diego County Sheriff insists that “good cause” means “a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way.”  And “simply fearing for one’s personal safety alone is not considered good cause.”  Typical successful permit applicants are law enforcement, security, business owners who carry significant amounts of cash, and those with well-documented threats against them.  As a result, a typical law abiding person has no meaningful way to defend themselves outside their home in San Diego County.

Edward Peruta and four others sued the County of San Diego challenging this excessively harsh standard on Second Amendment grounds.  The district courts ruled for the counties, and plaintiffs appealed.  A Ninth Circuit panel majority sided with Mr. Peruta, holding that there is a Second Amendment right to bear arms in public and California’s regulatory maze almost entirely crushes that right.

This well-reasoned decision should have ended the matter, but the California Attorney General couldn’t leave well-enough alone and petitioned for an en-banc (all judges) review of the decision.   The Ninth Circuit is enormous, so in en-banc reviews, instead of all twenty-nine judges hearing the case, eleven are selected randomly.  In this case, Democratic presidents appointed eight of the eleven judges on the en-banc panel.  The results were predictable.  The en-banc panel majority completely ignored the question of whether  Second Amendment rights extend beyond the home and whether California has destroyed all meaningful expression of those rights by attacking them from all angles.  Instead, the majority of the court chose, conveniently, to focus specifically on whether the Second Amendment guarantees a right to carry a concealed weapon.  They held that it does not.

The question that the Ninth Circuit en-banc panel answered was not the question presented.   Lawyers call this sort of judicial posturing “reframing the issue.”  Laymen might call it intellectual dishonesty.

Mr. Peruta and his co-plaintiffs have appealed to The U.S. Supreme Court, supported by amicus (friend of the court) briefs from the Center for Constitutional Jurisprudence, the National Rifle Association, Governors or Attorneys General from a majority of states, and an extensive list of law enforcement groups.  The Court is scheduled to decide whether or not it will hear the case very soon.  Fortunately for Second Amendment activists, Justice Neil Gorsuch, who has thus far demonstrated a friendly stance toward Second Amendment issues, has been recently sworn in.  This should help Mr. Peruta get a fair hearing.

A lot is at risk, and the possible outcomes are legion.  In a worst case scenario, the Supreme Court hears the case, and sides with San Diego County.  In that event, local politics will dictate concealed carry regulations indefinitely.  In the best case scenario, because the Ninth Circuit reframed the issue so narrowly, it is theoretically possible that the High Court will hold that the Second Amendment protects concealed carry specifically.  Because the Court typically avoids making sweeping new law, I predict that the Court will hear the case, but will only strike down high-burden “good cause” standards for concealed carry, and only when open carry is not permitted.   In any event, the outcome for millions of gun owners will be transformative and likely carry with it a major impact on just how Second Amendment rights of citizens move forward in the 21St Century.