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Thursday, February 20, 2014

9th Circuit Strikes Down Concealed Carry Conditions, Sets Up Case for Supreme Court

How far does the core Second Amendment right to possess a handgun for self-defense extend beyond the home? Over the past several years, several federal circuits have weighed in on this question, sometimes reaching different conclusions. Compare Madigan v. Moore (7th Cir. 2013)(right to bear arms implies right to carry loaded gun outside home); with Drake v. Filko (3d Cir. 2013)(regulation of public carry constitutional).  The 4th and 2nd Circuits agree with the 3rd. See Woollard v. Gallagher (4th Cir. 2013) and Kachalsky v. County of Westchester (2d Cir. 2012).

Last Thursday, the 9th Circuit came down on the 7th Circuit side, finding that the Second Amendment extends beyond the home, protecting the right of a “responsible, law-abiding citizen . . . to carry a firearm in public for self-defense.” In Peruta v. County of San Diego, concealed carry license applicants challenged San Diego County’s requirement for applicants to show “good cause” to obtain a license. Under the County’s policy, “one’s personal safety alone is not considered good cause.” The open carry of firearms is also prohibited, with or without a license. The District Court rejected the applicants’ claim that the County policy infringed on their Second Amendment rights because the County’s public safety interest trumped the applicants’ allegedly burdened Second Amendment interest.

On appeal, the Ninth Circuit engaged in a two-step inquiry, asking: 1) whether carrying a gun outside the home for self-defense falls within the Second Amendment right to keep and bear arms; and 2)whether the challenged law “infringed” the right. In evaluating the scope of the Second Amendment right, the Court engaged in a thorough historical analysis beginning with the pre-ratification historical background of the Second Amendment, and extending to nineteenth-century judicial interpretations and legal commentary. The Court found the plain meaning of “bear Arms” strongly suggests that the right to bear arms extended beyond the home, and that founding-era legal scholars supported this position, concluding that the Second Amendment codified a pre-existing right to self-preservation against public and private violence. According to the Court, the great weight of nineteenth-century legal precedent on the Second Amendment or its state-law analogues supported the proposition of the right to carry in the case of confrontation outside the home for self-defense. While some cases endorsed a prohibition on concealed carry, the open carry of weapons was not simultaneously prohibited in those cases. The Court’s thorough examination of the text and history of the Second Amendment lead to the conclusion that the right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense.

Next, the Court concluded that the “good cause” requirement infringed the Second Amendment right, eschewing the application of a sliding-scale of scrutiny used by other circuits, where severe restrictions are reviewed under near-strict scrutiny, and lesser burdens receive review under a lesser form of heightened scrutiny. Instead, the Court found that the law amounted to a “destruction of the right” that would fail under any standard of review. While the County policy allowed some people to bear arms, the typical law-abiding citizen would not be granted a license.

Finally, the Court disagreed with Second, Third, and Fourth Circuit’s decisions upholding concealed carry restrictions because they failed to engage in a thorough historical analysis of the Second Amendment right, and failed to force the government to show that their gun regulations did not burden “substantially more” of the Second Amendment right that was necessary to advance its aim public safety.

Justice Thomas’ dissent argued that the core Second Amendment right is limited to the home, and noted that the same historical sources cited by the majority supported routine restrictions on the carrying of concealed weapons, and often outright bans. Since the right to carry a concealed weapon in public falls outside the scope of the Second Amendment right, the County’s policy should have been upheld as a “presumptively lawful regulatory measure.” Even if the County policy were subject to intermediate scrutiny, the County established a reasonable fit between its regulation and its public safety goals.

This Peruta decision will not affect Illinois governments, for now, because the decision is not binding in the Seventh Circuit, and in any event, Illinois’ new concealed carry law is considered “shall issue”, rather than the “may issue” policy rejected by the Ninth Circuit. However, Peruta deepens a split between the federal circuits, which gives the Supreme Court an attractive opportunity to step in and resolve the dispute regarding the scope of the Second Amendment right. Such a decision could establish the boundaries of the right to bear arms, and establish the level of scrutiny to be applied to challenged regulations, from Illinois’ new concealed carry law, to local zoning regulations for gun shop and firing ranges.

Post Authored by Daniel J. Bolin, Ancel Glink


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