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Thursday, February 13, 2014

Ninth Circuit Deepens the Federal Circuit Split on the Right to Carry Firearms

The case, striking down California's restrictions on carrying firearms in public, is Peruta v. County of San Diego. The full opinion is available here.

Eugene Volokh analyzes the opinion here. And he discusses what will most likely happen next in the case here. I have blogged previously about the split in authority on laws that restrict the carrying of firearms here, and Peruta deepens this split.

The Ninth Circuit does not resort to a discussion of scrutiny in striking down the ban. Quoting District of Columbia v. Heller, the 2008 Supreme Court case that struck down the District of Columbia's ban on the possession of loaded firearms in the home, the court notes: "A law effecting a “destruction of the right” rather than merely burdening it is, after all, an infringement under any light." And California's restriction is such a law:

In California, the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a concealed-carry permit. And, in San Diego County, that option has been taken off the table. The San Diego County policy specifies that concern for “one’s personal safety alone” does not satisfy the “good cause” requirement for issuance of a permit. Instead, an applicant must demonstrate that he suffers a unique risk of harm: he must show “a set of circumstances that distinguish [him] from the mainstream and cause[] him . . . to be placed in harm’s way.” Given this requirement, the “typical” responsible, law-abiding citizen in San Diego County cannot bear arms in public for self-defense; a typical citizen fearing for his “personal safety”—by definition—cannot “distinguish [himself] from the mainstream.” 
. . . 
It is the rare law that “destroys” the right, requiring Heller-style per se invalidation, but the Court has made perfectly clear that a ban on handguns in the home is not the only act of its kind. We quote the relevant paragraph in full, telling case citations included: 
Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).
Id. at 629. In other words, D.C.’s complete ban on handguns in the home amounted to a destruction of the right precisely because it matched in severity the kinds of complete carry prohibitions confronted (and struck down) in Nunn and Andrews. These, in turn, resemble the severe restrictions in effect in San Diego County, where the open or concealed carriage of a gun, loaded or not, is forbidden. Heller teaches that a near-total prohibition on keeping arms (Heller) is hardly better than a near-total prohibition on bearing them (this case), and vice versa. Both go too far.
Volokh believes that the case will likely make it before the Supreme Court given the "solid split" of authority on this issue. In the meantime, I expect that the Ninth Circuit will rehear the case en banc, and I am not sure that the current ruling will survive that review. But whatever the outcome, this case deepens the split in authority, and I hope that this prompts the Supreme Court to finally take up a case on this issue.

On a doctrinal note, if the Supreme Court were to take up this case and apply the same reasoning as the Ninth Circuit, the case would not do much to clear up a lot of existing confusion on what level of scrutiny courts should apply in cases where the core Second Amendment right to self-defense is not "destroyed." The Ninth Circuit's reasoning is similar to the reasoning in the Heller decision in that it holds that a statute's destruction of core Second Amendment rights warrants per se invalidation. What this would mean for lesser restrictions is still unclear.

[UPDATE - 2/24/2014: I found that my link to the Peruta opinion was broken due to the court's relocation of the case information on the website. I have since updated the link to a working page with the opinion]

[UPDATE - 7-26-2014: The Peruta opinion link was broken again, so I've changed it to Google's page on the case, which will hopefully be more durable than the last two. Additionally, I noticed that I had misstated the name of the case, and have corrected that error by changing "City of San Diego" to "County of San Diego"]

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