November 19, 2014
The U.S. Supreme Court ruled in District of Columbia v. Heller (2008) that the Second Amendment protects an individual right to bear arms. It then ruled in McDonald v. Chicago (2010) that this right also restricts state and local governments. Since 2010, the high court has stayed out of the battle to define what the Second Amendment specifically protects. Now a California case, Peruta v. San Diego County, might change this.
The California Rifle and Pistol Association (CRPA) brought the case on behalf of five individuals who were denied the right to carry a handgun by the San Diego County Sheriff's Department. Last February a three-judge panel in the U.S. 9th Circuit Court of Appeals ruled the government can't require residents who want a concealed-carry permit to first prove they really need their rights by showing official documentation, such as restraining orders or letters from law-enforcement agencies.
After the court found such requirements unconstitutional, San Diego County Sheriff William D. Gore declined to appeal the decision. This prompted California Attorney General Kamala D. Harris to officially petition the 9th Circuit to have its full 11-member panel review the decision. Months later, on November 12th, the 9th Circuit declined this request. The case, however, isn't necessarily finished.
David Madden, a spokesman for the 9th Circuit, said the state of California has the right to ask the 11-judge panel to review the decision. If the state does so — and many legal experts expect them to — then no matter how the panel rules, the case would likely be appealed to the U.S. Supreme Court.
Before considering those national implications, here are the details.
Edward Peruta and the other plaintiffs in this case weren't able to obtain concealed-carry permits because they couldn't prove they needed to protect themselves to the local sheriff's satisfaction. According to California law, a person applying for their Second Amendment right to carry concealed must:
1) Be a resident of their respective city or county,
2) Be of "good moral character,"
3) Have "good cause" for such a license, and
4) Citizens must also pass a firearms training course before they can utilize their Second Amendment rights.
California law also allows cities and other municipalities to pass stricter gun-control laws. So, though many rural California counties accept self-defense as "good cause," many sheriffs and police chiefs were not. For example, San Diego County Sheriff William Gore denied almost everyone. The few who attained permits had to demonstrate or produce evidence of imminent danger to their lives through restraining orders and other legal documentation.
So what does this mean for the future of Second Amendment rights?
The Peruta v. San Diego County case garnered a lot of attention when Paul Clement joined the plaintiffs' legal team. Clement is a partner at Bancroft PLLC. He served as the 43rd Solicitor General of the U.S. from June 2005 until June 2008. He has argued more than 70 cases before the U.S. Supreme Court, including McConnell v. FEC, McDonald v. Chicago and NFIB v. Sebelius.
When G&A asked Clement why he became involved, he replied, "This case squarely presents the issue whether the Second Amendment is going to apply outside the home. Having already worked on the McDonald case and defeated the argument that the Second Amendment was a lesser right not incorporated against the States, this seemed like a natural sequel."
When asked where he sees this case going, Clement said, "The Supreme Court will eventually get back involved to clarify some of the disagreements across the circuits. The Supreme Court always looks for the best vehicle to address important issues. I do not think [this] issue will be any different."
Since 2000, Clement has actually argued more Supreme Court cases than any lawyer in or out of government. Clements addition to the team clearly shows that the California Rifle and Pistol Association understands this case is likely headed all the way to the high court. If so — and if the Supreme Court ruled as it did in D.C. v. Heller and McDonald v. Chicago — a decision could dismantle other onerous restrictions on a person's ability to obtain a permit to carry a concealed handgun. It is a stretch to speculate that this could make America into a shall-issue nation; still, many courts are now being forced to decide when regulations have become so burdensome they've become infringements.
Administrations in places like Chicago, Washington, D.C. and New York City are forcing this issue.
The Peruta v. San Diego County case has already had an impact. Soon after the 9th Circuit ruling, the San Diego County Sheriff Department began issuing concealed-carry permits to applicants who meet all other qualifications. Also, as a result of the court's decision, California's Orange County Sheriff's Department eased its requirements for obtaining a concealed-carry permit.
Even if Peruta v. San Diego County doesn't make it all the way to the U.S. Supreme Court, a Second Amendment case asking these questions seems destined to get onto the high court's docket. After all, as Clement notes, federal appeals courts have been fundamentally disagreeing on this issue.
The majority opinion in Peruta v. San Diego County noted these disputes when it said, "Our opinion is not the first to address the question of whether the Second Amendment protects a responsible, law-abiding citizen's right to bear arms outside the home for the lawful purpose of self-defense. Indeed, we are the fifth circuit court to opine expressly on the issue, joining an existent circuit split." The opinion later says "states may not destroy the right to bear arms in public under the guise of regulating it€¦. By evading an in-depth analysis of history and tradition, the Second, Third, and Fourth Circuits missed a crucial piece of the Second Amendment analysis. They failed to comprehend that carrying weapons in public for the lawful purpose of self defense is a central component of the right to bear arms."
When circuit courts begin calling each other out on constitutional questions the U.S. Supreme Court usually takes a case to settle the dispute. Whether the U.S. Supreme Court's nine justices will split the same way they did in D.C. v. Heller and McDonald v. Chicago might very well depend on the health of the current justices at the bench and the outcomes of presidential and congressional elections in 2016.
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