Second Amendment advocates on the West Coast argue a sprawling ruling by a federal appeals court on carry rights Thursday dodged the question at hand and opened an entirely different can of worms in the process.
The decision handed down by a split 7-4 en banc panel of the U.S. Ninth Circuit this week involved the intertwined set of problems in two cases, the Peruta appeal backed by the National Rifle Association against the sheriff of San Diego County, and the Richards case by the Second Amendment Foundation against the sheriff of Yolo County.
At the heart of the matter was the right to carry a gun outside the home for personal protection.
As California Gov. Jerry Brown signed a bill that did away with open carry in 2011, the only avenue to keep and bear arms in the state since then has been to obtain a permit from the local sheriff or police chief. However, the process is easier said than done due to the state’s allowance for “may-issue” permitting using a “good-cause” requirement administered by local authorities. This has made getting a permit troublesome in some jurisdictions, for instance, in 2013, San Diego County only had 744 active concealed carry permits for an area with a population of more than three million.
In the ruling this week, the court held that, in sum, the Second Amendment doesn’t give the right to carry a concealed weapon, rather leaving that interpretation to the individual states. With that, the majority decision upheld lower court rulings against the plaintiffs and rejected the argument made by the gun rights groups.
The thing is, many argue that by concentrating on the concealed carry aspect alone and not carry rights overall, the court ignored the very problem at the core of the challenge.
“The counties and California have chipped away at the Plaintiffs’ right to bear arms by enacting first a concealed weapons licensing scheme that is tantamount to a complete ban on concealed weapons, and then by enacting an open carry ban,” said Judge Consuelo Maria Callahan, who led the four dissenting jurists on the panel. Callahan argued the majority opinion, which centered on a question no one asked was “an elaborate straw man.”
The plaintiffs could not agree more. “The ruling misrepresented our complaint,” Second Amendment Foundation Executive Vice President Alan Gottlieb told Guns.com. “We never argued that there was a right to concealed carry. Our complaint was that there is a right to carry and the law in question did not allow it in any form. The court ignored what this case was really about to get around the challenge we raised.”
This was echoed by Brandon Combs, executive director of the Calguns Foundation, which had joined with SAF on the suit against Yolo County.
“This decision purposefully ignored the fact that the Richards plaintiffs didn’t ask for a right to concealed carry. Instead, we argued that the Second Amendment protects a law-abiding person’s right to carry in public, period,” Combs told Guns.com. “Since California already banned all other forms of carry, the only system left should be accessible to anyone who can pass a background check. Law enforcement political associations in California really hurt the Second Amendment by arguing for ‘may-issue’ carry licensing in this case and opposing open carry.”
Chuck Michel, the West Coast counsel for the NRA, who helmed the Peruta case, made the same argument. “Significantly, the Peruta decision specifically avoided answering the critical legal question of whether, if concealed carry is prohibited, some form of open carry of firearms must be allowed,” he told Guns.com.
This leaves several paths of pursuit open to the plaintiffs, including a continued challenge of this week’s decision to the Supreme Court — that all agree is possible — and new litigation taking the state to task for the open carry prohibition.
“California law bans open carry, so the constitutionality of that ban will now have to be tested,” Michel said.
State Attorney General Kamala D. Harris, running a hard-fought battle to become California’s junior senator to Washington, welcomed the news of the ruling and chalked it up as a win for local controls over guns and who carries them in the community.
“The court’s decision is a victory for public safety and sensible gun safety laws,” said Harris in a statement. “The ruling ensures that local law enforcement leaders have the tools they need to protect public safety by determining who can carry loaded, concealed weapons in our communities.”
However, Harris has in the past advocated for more state control over gun policy, an irony not lost on some.
“If Kamala Harris thinks that ‘local control’ is the best public safety policy for CCW licenses, why doesn’t she apply the same logic for so-called ‘assault weapon’ and other gun permits?” Combs said.
The Ninth Circuit sprawls across the Western fifth of the country, a region that includes three states — Alaska, Arizona and Idaho — that allow for very liberal permitless or constitutional carry, as well as Hawaii and California, which practice prohibitively strict may-issue policies. The other states under the jurisdiction of the court — Montana, Nevada, Oregon and Washington — fall somewhere in the middle with shall-issue policies.
With that, some lawmakers outside of the state but still under the purview of the Ninth Circuit are already thinking of expanding gun control.
Washington State Sen. Reuven Carlyle, a Seattle Democrat, told the Associated Press the ruling opens the door for adopting a “good cause” requirement in that state.