Does the Second Amendment give you the right to carry concealed?
As the Ninth Circuit becomes the fifth to uphold the regulation of carrying concealed weapons, will the Supreme Court be asked to put the matter to rest once and for all?
The United States Court of Appeals for the Ninth Circuit issued an en banc ruling on Thursday, June 9, 2016, stating that the Second Amendment does not guarantee an individual’s right to carry a concealed firearm. This has some analysts and armchair lawyers wondering if the stage is set for another battle in the Supreme Court of the United States. Indeed, the concealed carry issue in Peruta v. San Diego does seem to be the last in a trilogy of issues which began with D.C. v. Heller and continued with McDonald v. Chicago.
Individuals…may apply for licenses to carry a concealed firearm.
Like most states, California has a nuanced body of law regulating the possession and carrying of firearms. Generally speaking, it is illegal to carry a concealed firearm in public (loaded or unloaded), to carry a loaded firearm on one’s person or in a vehicle in any public place or street, or to openly carry an unloaded handgun on one’s person in a public place or street. There are exceptions, which include carrying firearms while hunting, engaging in certain recreational activities, or while at the person’s place of business or on their private property. Additionally, the prohibitions do not apply to active or retired peace officers, individuals employed in the guarding or transportation of items of value, operation of armored vehicles, animal control officers, or zookeepers.
Individuals who do fall under these prohibitions may apply for licenses to carry a concealed firearm. A person wishing to obtain such a license must either apply with the sheriff of their county of residence or chief of police of their city of residence. The applicant must demonstrate four things: 1. They are of good moral character, 2. They have good cause to receive the license, 3. They are a resident of the county or city within the county or that they spend a substantial amount of time in that city or county for employment or business, and 4. They have completed an approved firearms training course.
Good cause has been defined as “a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way.” A general fear or concern for one’s safety will not satisfy the requirement and good cause is evaluated on a case-by-case basis. Valid examples of good cause include victims of violent crime and/or documented threats of violence, business owners who carry large sums of cash or valuable items, and business owners who work all hours in remote areas and are likely to encounter dangerous people and situations. Occupations such as doctors, attorneys, CEO’s, managers, and employees working in high risk environments have been accepted for good cause while others, such as security guards, body guards, and VIP protection, have not.
“There is no Second Amendment right for members of the general public to carry concealed firearms in public.”
Peruta is a combination of two cases brought by Edward Peruta of San Diego County and Adam Richards of Yolo County. In 2009, both Peruta and Richards were denied licenses to carry concealed firearms for failure to show good cause. In 2010, both cases were granted summary judgment in favor of the State by the United States District Court for the Southern District of California. On appeal, a divided three-judge panel for the United States Court of Appeals for the Ninth Circuit reversed both decisions. It held that the licensing requirements violated the Second Amendment, which required that ″the states permit some form of carry for self-defense outside the home.” The State of California then applied for, and was granted, an en banc rehearing.
In a 7-4 decision, the en banc panel held that “there is no Second Amendment right for members of the general public to carry concealed firearms in public.” The opinion was narrowly written to address the constitutionality of restrictions on carrying concealed firearms, and it did not address the right to open-carry or the constitutionality of concealed carry itself.
“[The] protection the Amendment provides is not absolute… Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation.”
The Ninth Circuit relied heavily on the Court’s analysis in both Heller and McDonald in reaching its en banc decision. In Heller, the Court addressed a long-standing constitutional question about whether the right to “keep and bear arms” is an individual right unconnected to service in the militia or a collective right that applies only to state-regulated militias. The issue centered on a District of Columbia statute that entirely banned the possession of handguns in the home, and required that any lawful firearm in the home be ″disassembled or bound by a trigger lock at all times, rendering it inoperable.″ In a 5-4 decision, the Court held that the Second Amendment protects an individual right to possess firearms for lawful use, such as self-defense, in the home and struck down provisions of a D.C. law that (1) effectively banned possession of handguns by non-law enforcement officials and (2) required lawfully owned firearms to be kept unloaded, disassembled, or locked when not located at a business place or being used for lawful recreational activities.
However, in the majority opinion for Heller, Justice Scalia wrote that while the Second Amendment confers an individual right to keep and bear arms, that right is not unlimited. “[The] protection the Amendment provides is not absolute… Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation.” Further, Justice Scalia wrote, “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places,” which, as he noted, were “presumptively lawful regulatory measures only as examples” and not intended to be an exhaustive list. This language was germane to the Ninth Circuit’s analysis of the Peruta decision.
In McDonald, the Court was asked to determine if the Second Amendment applies to the regulation of firearms by states and localities. The issue in McDonald was a handgun ban similar to the one in Heller. In another 5-4 decision, the Court held in McDonald that an individual’s Second Amendment right to keep and bear arms must be honored by the states through the Fourteenth Amendment’s Due Process Clause. Justice Alito wrote the majority opinion, and noted, “It is clear that the Framers…of the Fourteenth Amendment counted the right to keep and bear arms…[among] the fundamental [rights]. The Fourteenth Amendment makes the Second Amendment…fully applicable to the States.”
The Court forewent a ruling on the constitutionality of the gun ban, and instead chose to reverse and remand the case for additional proceedings. However, in light of the Heller and the McDonald decisions, it is clear that such bans are ipso facto illegal. But the Court in McDonald once again stressed that the Second Amendment only protects an individual’s right to possess a firearm in the home for lawful uses such as self-defense. The Court reiterated that the Second Amendment right to possess a firearm is not unlimited and that some forms of firearm regulation are constitutionally permissible. As Justice Alito wrote in the majority opinion, “Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.”
The Peruta decision delivers a loss to gun rights advocates and sets the stage for a Supreme Court challenge. Adam Winkler, a UCLA law professor and gun rights expert, told CNN, “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?”
“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.”
The Court does not necessarily have to take up the case. The Peruta decision does not create a substantive divide among different circuits, which is a major factor that the Court considers in weighing which cases to take. In fact, the Ninth Circuit is now the fifth to rule that regulation of the right to carry a concealed weapon is constitutional, joined by the Second, Third, Fourth, and Tenth Circuits. It is also unlikely that the Court would take up this issue with a vacancy left by Justice Scalia’s passing yet to be filled. But according to Chuck Michel, senior partner at Michel and Associates, a Supreme Court Appeal is possible. “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. California law bans open carry, so the constitutionality of that ban will now have to be tested.”
What is certain is that the issue of concealed weapon-carrying regulation is not likely to go away in the wake of so many recent mass shootings in the United States. Sooner or later, these regulations will be challenged before the Supreme Court.