9th Circuit rejects challenge to restrictive ‘may-issue’ concealed carry practices

A federal appeals court held that the right of a member of the public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment.

The combined cases under review, Peruta v. San Diego and Richards v. Yolo County, were historic reversals of lower court rulings issued by the U.S. Ninth Circuit Court of Appeals in 2014 which found that, in both cases, California sheriffs used unconstitutional policies to limit the right to carry under the Second Amendment.

Since the rulings, the cases have been widely cited and have been the impetus to roll back overly strict may-issue permitting practices in a number of areas outside of California, but were set aside and reheard by an 11-judge panel formed for an en banc review last year.

The panel consisted of only two of the original three-judge panel that found for Peruta and Richards, Chief Judge Sidney Runyan Thomas, an appointee of President Clinton who dissented in the initial ruling, and Consuelo María Callahan, an appointment of President George W. Bush who ruled in favor of Mr. Peruta.

The other nine judges are largely a mix of appointments by Democratic Presidents, with the ghosts of Clintons past appearing heavily on the panel:

  • Judge Harry Pregerson, a 1979 appointment by President Carter
  • Judge Barry G. Silverman, a 1998 appointment by President Clinton
  • Judge Susan Pia Graber, a 1998 appointment by President Clinton
  • Judge M. Margaret McKeown, a 1998 appointment by President Clinton
  • Judge William A. Fletcher, a 1998 appointment by President Clinton
  • Judge Richard Anthony Paez, a 2000 appointment by President Clinton
  • Judge Carlos Tiburcio Bea, a 2003 appointment by President George W. Bush
  • Judge Norman Randy Smith, a 2007 appointment by President George W. Bush
  • Judge John Byron Owens, a 2014 appointment by President Obama.

In the end, in an 89-page ruling handed down Thursday, the panel went 7-4 with the earlier District Court rulings and set aside the 2014 gun rights victories.

“We hold that the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public,” written by Judge Fletcher for the majority.

“The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment,” noted Fletcher before citing references to gun control laws going back to Edward I of England in 1299, moving on to Colonial America, the Civil War post-bellum period, and onto modern times.

“Because the Second Amendment does not protect in any degree the right to carry concealed firearms in public, any prohibition or restriction a state may choose to impose on concealed carry — including a requirement of ‘good cause,’ however defined — is necessarily allowed by the Amendment,” he wrote.

Judges Callahan, Silverman, Bea and Smith dissented to one degree or another, arguing the majority opinion eviscerates the Second Amendment right of individuals to keep and bear arms as defined by Heller and reaffirmed in McDonald.

“The Second Amendment is not a ‘second-class’ constitutional guarantee,” wrote Callahan. “In the context of present-day California law, the Defendant counties’ limited licensing of the right to carry concealed firearms is tantamount to a total ban on the right of an ordinary citizen to carry a firearm in public for self-defense. Thus, Plaintiffs’ Second Amendment rights have been violated. While states may choose between different manners of bearing arms for self-defense, the right must be accommodated.”

Gun control advocates were quick to welcome the victory in the nation’s largest appeals court.

“In upholding San Diego’s requirement that a member of the public needs a good cause to carry a concealed handgun in public, the Ninth Circuit has delivered a major victory for public safety,” said Elizabeth Avore, the legal director for Everytown for Guns Safety in a statement emailed to Guns.com.

“The decision is well within the legal mainstream, aligning the Ninth Circuit with courts that have upheld nearly identical laws in New York, New Jersey, and Maryland,” held Avore. “It is just the latest judicial recognition that common-sense gun laws do not violate the Second Amendment, and that nothing in our constitution prevents us from passing the types of gun laws that keep our families and communities safe.”

Second Amendment advocates backing the cases told Guns.com previously they were prepared to take the suits past the Ninth Circuit to the nation’s highest court.

“It is high time for the Supreme Court, whether through this case or another vehicle, to make it clear that it meant what it said in the Heller and McDonald cases,” said Chuck Michel, the National Rifle Association’s West Coast counsel who helmed the original appellate victory in Peruta.

While the Second Amendment Foundation’s Alan Gottlieb, backers of the Richards appeal, said, ““I truly believe that this case will be finally ruled on by the Supreme Court.”

Adam Winkler, a professor of law at UCLA versed in gun rights litigation, told Guns.com Thursday the combined Peruta/Richards appeal should make excellent fodder for debate by the Justices.

“This case raises the next great question for the Supreme Court: Does the Second Amendment guarantee a right to carry guns in public? And if so, what kind of licensing can states use to permit people to carry concealed weapons?” said Winker.

“This case does not really create a circuit split, although the Ninth Circuit disagreed with some other courts by saying there is no right to carry concealed. But all the circuit courts, like the Ninth Circuit, ultimately upheld discretionary permitting policies for concealed carry. So in reasoning, there is a split. In terms of outcome, there is no split,” he said.

Whether or not there is a circuit split may be irrelevant, Winkler cautioned, saying, “The justices are not likely to take a major gun case until there is a ninth justice.”

For their part, the National Rifle Association downplayed the court, and its ruling.

“Once again the 9th Circuit showed how out of touch it is with mainstream Americans,” said Chris W. Cox, executive director of the NRA’s Institute for Legislative Action in a statement emailed to Guns.com. “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.”

Cox pointed to the political ramifications of the ruling and the current vacant seat on the nation’s high court as impetus for action on the case.

“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,” said Cox.

Article updated 12:57 pm CST on June 9, 2016