Peruta Opinion Finds No Right to Carry Concealed Firearms

A full panel of the U.S. Court of Appeals for the Ninth Circuit today used shameful sophistry and sleight of hand to effectively deny millions of Californians their constitutional right to bear firearms in public for self-defense. The ruling came in the long-running case of Peruta v. San Diego, which challenged California’s discretionary issuance of concealed carry permits, the only option Californians have to legally exercise this right. Ignoring that fact, the court held that concealed carry of firearms in public is not protected by the Second Amendment and that discretionary permitting for it therefore does not offend that provision.

We have been reporting on the saga of the Peruta case for a number of years (including here, here, here, and here). The issue in the case is simple: Does the Second Amendment allow California officials to deny the state’s residents the only effective means they have of carrying a firearm in public for self-defense, absent a showing of an extraordinary need to do so? The answer to that question is simple – no – and it was answered correctly in an opinion by a three judge panel of the Ninth Circuit back in 2014.  The panel recognized that the question at the heart of the case was “whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.”

Nevertheless, after that decision was issued, a majority of the full Ninth Circuit Court of Appeals took it upon itself to order the case to be reheard. In reversing the panel’s decision, the full court deceptively recast the issue in the case as whether plaintiffs, who “wish to carry concealed firearms in public” but “do not satisfy the good cause requirements in their counties” nevertheless have a Second Amendment right to be issued concealed carry licenses.

The plaintiffs asserted because concealed carry licenses are the only means responsible, law-abiding Californians have to exercise their Second Amendment right to bear arms in California, they cannot be subject to issuance only on a showing of extraordinary need. It was the State of California, not the plaintiffs, that decided concealed carry would be the vehicle state residents had of protecting themselves from violent crime in public.

While a majority of the Ninth Circuit judges signed onto the decision to deny Californians their rights, three strongly-reasoned dissents, accounting for the opinions of four judges, called out the majority’s chicanery. The dissents correctly point out that it was the State, not the plaintiffs, who established the “concealed carry” permitting context of the case. The dissenting judges also would have explicitly held that responsible, law-abiding Americans certainly do have a right to “bear” arms in public for self-defense.  According to the dissent of Judge Conseulo M. Callahan (an appointee of President George W. Bush), the majority’s framing of the case was nothing more than “an elaborate straw man.”

While the majority opinion blithely asserts that people who believe California’s ban on open carry violates the Second Amendment have the option of challenging that ban, they ignore the fact that no provision of California law provides a means for law-abiding citizens to do so for self-defense. Thus, achieving proper standing to mount such a challenge would be difficult for anyone who does not commit a criminal violation of California’s open carry ban.

In the final analysis, the majority opinion does perform one very important public service: It provides the clearest possible example of why liberty-loving Americans need to go to the polls this November and vote for those candidates who will preserve their Second Amendment rights. The consequences of failing to do so could not be clearer.

“Once again the 9th Circuit showed how out of touch it is with mainstream Americans.  This decision will leave good people defenseless, as it completely ignores the fact that law-abiding Californians who reside in counties with hostile sheriffs will now have no means to carry a firearm outside the home for personal protection. This flawed ruling underscores the importance of the 2016 election. It is imperative that we elect a President who will appoint Supreme Court justices who respect the Second Amendment and law-abiding citizens’ right to self-defense,” Chris W. Cox, executive director, National Rifle Association Institute for Legislative Action (NRA-ILA).