Sweeping ruling on guns in public

The U.S. Court of Appeals for the Ninth Circuit — the first to rule, ahead of the Supreme Court, that the Second Amendment right to have a gun extends nationwide — today issued the most sweeping decision yet on the right to carry a gun in public places. The amendment means, the panel ruled in a two-to-one decision, that it is unconstitutional to confine the “right to bear” arms solely to the home.

Such a limitation, the panel ruled, would amount to a complete destruction of Second Amendment rights and cannot be justified on any constitutional reasoning. Thus, it said, while government might forbid carrying a concealed gun in public, or carrying a gun openly in public, it cannot do both. The right to have a gun for self-defense clearly exists beyond one’s home and hearth, the majority said. And, it added, it has always existed, since the Second Amendment was put into the Constitution in 1791.



Only one other federal appeals court — the Seventh Circuit — has ruled that the right to have a gun for personal use continues when one leaves home, but its ruling on the point was notably more narrow than the new Ninth Circuit decision. Other appeals courts have refused to assure protection for carrying a gun beyond the home — a split that might enhance the prospects that the Supreme Court would ultimately settle the question.

The Ninth Circuit ruling came in the case of Peruta v. San Diego County (Circuit docket 10-56971), and it struck down a county policy law that required a gun owner to get a license to carry a concealed gun in public and restricted licenses to those who could show “good cause” for the need to defend themselves. The mere fact that an individual was concerned about his own safety does not satisfy that requirement.

Circuit Judge Diarmuid F. O’Scannlain wrote the seventy-seven-page majority opinion, joined by Circuit Judge Consuelo M. Callahan. Judge O’Scannlain was the authority of a 2009 Ninth Circuit opinion that was the first to extend the Second Amendment personal gun right to the state and local level (after the Supreme Court had recognized such a right at the federal level, in the case of District of Columbia v. Heller in 2008. The Supreme Court itself would apply Heller nationwide in 2010, in the case of McDonald v. City of Chicago.)

Circuit Judge Sidney R. Thomas dissented from the new ruling, arguing in a forty-eight-page dissenting opinion that the decision conflicted with Supreme Court precedents and with every other federal appeals court decision on this issue, including the one by the Seventh Circuit going part of the way to extend gun rights beyond the home.

Judge Thomas contended that the ruling was so broad in its approach that it would strike down almost all of the California laws that restrict gun rights outside the home. California bars the open or concealed carrying of a handgun in public, but it does create a licensing regime for concealed carry. It has no similar licensing for open carry, so that is effectively banned across the state.

Judge O’Scannlain countered that the decision actually applied only to the concealed-carry licensing scheme in San Diego County. But his opinion did go well beyond that in concluding that government must allow some public carrying of guns for personal self-defense.

At a more technical legal level, the majority opinion abandoned at least for this case the two-step Second Amendment analysis that all federal appeals courts that have decided this question so far have adopted: first, inquiring whether the right at issue was part of the “core” of the Second Amendment, and, second, if it was, whether it put too heavy a burden on the right to have a gun for personal self-defense. (The Ninth Circuit itself had embraced that mode of analysis.)

Instead of that approach, Judge O’Scannlain declared that, if a gun control law goes so far as to effectively destroy that personal gun right, such a law must always be struck down no matter how it was analyzed because the impact on the right was just too great. Confining gun rights to the home does just that, the ruling declared.

The lengthy majority opinion borrowed the approach that the Supreme Court had used in the Heller decision, making a detailed examination of the history of gun laws back to the period of the nation’s founding. That history, the majority concluded, shows that it has been understood from the beginning that carrying a gun meant having it outside the home as well as inside.

“As the historical sources have repeatedly noted,” Judge O’Scannlain wrote, “the state has a right to prescribe a particular manner of carry, providing that it does not cut off the exercise of the right of the citizen altogether to bear arms, or under the color of proscribing the mode, render the right itself useless….California’s favoring concealed carry over open carry does not offend the Constitution, so long as it allows one of the two.”

San Diego County officials have the option of seeking en banc review by the full Ninth Circuit, going on to the Supreme Court, or, in time, both.