by Mitch Kokai
Senior Political Analyst, John Locke Foundation
George Leef’s latest Forbes column focuses on a court case that should concern all supporters of Americans’ Second Amendment rights.
If you aren’t sure whether it matters who replaces the late Antonin Scalia on the Supreme Court, think about a case just decided by the Ninth Circuit Court of Appeals, Peruta v. County of San Diego.
Peruta is a Second Amendment case involving the right of citizens to legally carry concealed weapons and the upshot of the court’s ruling is that Californians can be denied concealed carry permits upon the whims of local government authorities. Moreover, while the Ninth Circuit majority acknowledges the Supreme Court’s crucial holding in District of Columbia v. Heller (one of Justice Scalia’s most forceful opinions) that the Second Amendment prevents such officials from negating the rights of individuals to possess firearms, it managed to pull the rug right out from underneath that decision.
Briefly, the facts in Peruta are as follows.
California law prevents nearly all people from carrying concealed firearms, with only a very few exceptions. The plaintiffs sued when the sheriff of San Diego County turned down their requests for concealed carry permits. State law declares that individuals seeking such permits must show “good cause” why they should be given concealed carry permits and in the view of the sheriff, you haven’t shown “good cause” unless you can prove that you’re under some specific threat. The general level of crime in society isn’t a sufficient reason.
In the trial court, the judge analyzed the case as you’d probably expect – that the Second Amendment right to keep and bear arms must be balanced against the public interest in reducing the risk of violence. In that “balancing,” the plaintiffs’ Second Amendment rights never had a chance. The law was upheld.
That decision was appealed to the Ninth Circuit Court of Appeals and in February, 2014, a three-judge panel did something rather surprising (at least for that circuit) and actually read the language of the Second Amendment and concluded that it gives Americans the right to have guns for self-defense outside their homes. Accordingly, the district court’s decision was reversed.
Sadly, that victory for the Second Amendment was short-lived.
California figured that it had a good chance at getting the panel’s decision overturned by asking the Ninth Circuit to reconsider it en banc. That would mean a panel of fourteen judges drawn from the ranks of a very left-wing stable of judges. The court granted the request, so the case was argued again.
On June 9, the Ninth Circuit issued its new decision in Peruta. By 11-3, the court declared that the Second Amendment does not have any bearing on state concealed carry laws and there’s no problem with allowing local officials nearly unfettered discretion to deny concealed carry permits to citizens.