Editor's Picks

Out of sight, but not out of mind: The right to carry guns in public

The Ninth Circuit has established that citizens have the Second Amendment right to carry a firearm in public for personal protection.

On February 13, 2014, the U.S. Court of Appeals for the Ninth Circuit struck down a California county’s requirement that an individual can only obtain a concealed carry permit if certain “good cause” is proven.  In Peruta v. County of San Diego, the California Rifle and Pistol Association (CRPA) brought a Section 1983 suit against the County of San Diego and its sheriff, in both his individual and official capacity.  Although the CRPA challenged the constitutionality of the good cause requirement, it did not challenge other requirements to obtain a concealed carry permit, such as background checks and requiring some form of firearm training before a permit is issued.

The California legislature has generally prohibited the open or concealed carry of handguns in public, with the exception that individuals may apply for a concealed carry license.  In order to obtain this license, citizens were required to prove four things: (1) that he is of good moral character; (2) good cause exists for the issuance of the license; (3) the applicant is a resident of the county; and (4) that the applicant has completed a firearms safety course.  This law also allowed each city and county the ability to set the procedures in which these permits were obtained.

In this case, the specific requirement at issue was one imposed by San Diego County.  In interpreting the good cause requirement, the county required an applicant to prove through supporting documentation “circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way.”  “[C]oncern for one’s personal safety alone [was] not considered good cause” in obtaining a permit.  The documentation required to demonstrate good cause included restraining orders, letters from law enforcement agencies, or letters from the district attorney.

Overturning these requirements is a positive step for gun advocates.

The Ninth Circuit held that carrying a gun outside the home for self-defense does fall within the protections of the Second Amendment, and that the good cause requirement impermissibly infringed upon Second Amendment rights.  In coming to this holding, the Ninth Circuit relied on two cases recently decided by the Supreme Court of the United States.  The first is District of Columbia v. Heller, where the Court held that the Second Amendment provided citizens the right to keep and bear arms, at least in their homes for self-defense.  The Ninth Circuit also relied on McDonald v. City of Chicago, which held that the Second Amendment applies to the states because the right to self-defense was deeply rooted in the history and tradition of the nation.

The Heller decision set out a two-step test to determine whether Second Amendment restrictions are constitutional: first, if that activity is protected by the Second Amendment, and second, whether the laws in question challenged, burdened, or destroyed that Second Amendment right.

On the first prong, the Ninth Circuit went through a very detailed analysis of the history of the Second Amendment by looking at the Amendment’s original public meaning.  The Court found that “the right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense.”  The Court did acknowledge, as did Heller, that “the Second Amendment right is not unlimited.”  The Court conceded that traditionally permissible restrictions exist and it is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

When analyzing the second prong, the Ninth Circuit found that the good cause requirement impermissibly infringes on citizens’ Second Amendment rights.  Since open carry is flatly prohibited in California, the good cause requirements imposed were impermissible because they kept the “typical responsible, law-abiding citizen” from carrying a firearm in public for self-defense.  This requirement kept everyone but those who could prove some sort of impending danger from carrying firearms.  With both of these California statutes applied in the manner approved by San Diego County, the average citizen was essentially prohibited from carrying in any form in California, whether open or concealed.  Accordingly, the Court found that this policy was in violation of the Second Amendment because it permitted no form of carry for self-defense by an individual outside the home, except in rare circumstances.

Many individuals may be justified in carrying for self-defense.

With the continual debate over the proper place of firearms in our society, there have been a substantial number of vocal individuals on both sides of the aisle.  There are many who want much greater restrictions on carrying firearms, and others that argue self-defense is a perfectly justifiable reason as to why individuals should be entitled to carry.  For some, carrying a firearm may be the only way to ensure that they are adequately protected.

For instance, on March 14, 2014, a twenty-six year old Dominos delivery driver, Ashley Hurd, was able to deter two robbers in Fayetteville, North Carolina, just by showing she was carrying a firearm.  While she was standing in front of a house telling a man, who seemed to be the owner of the house, how much the pizza bill was, another man walked up behind her, stuck something into the back of her head, and demanded all of her money.  Ashley pulled out the gun she was carrying and the robbers fled without ever firing a shot.  Just by showing two potential robbers she had a gun, Hurd was able to protect herself.  However, if Hurd was living in California before this Ninth Circuit decision, she would likely never have been able to get a concealed carry permit due to the extremely heavy burden of the good cause requirement.  She would never have been able to anticipate that this event would happen and would have been denied good cause.

Even with this apparent, firm stand taken by the Ninth Circuit, this issue is still subject to the decision of the Supreme Court of the United States.  

Although the San Diego sheriff has indicated that he will not pursue en banc review of Peruta, the California Attorney General is petitioning the Ninth Circuit to review and reverse this decision.  The Attorney General’s press release states she is seeking this petition because without the good cause limitation, officials “will be required to issue concealed-carry permits to individuals on nothing more than the applicant’s assertion that they wish to carry a gun for self-defense.“  However, that petition is not likely to succeed based on the Ninth Circuit’s most recent decision, Baker v. Kealoha (pdf), released on March 20, 2014.  Baker, which involved a preliminary injunction against similar carry requirements in Hawaii, reaffirmed the Ninth Circuit’s previous decision in Peruta.  The Court “remanded [Baker] for further proceedings consistent with Peruta.”  Yet, even with this apparent, firm stand taken by the Ninth Circuit, this issue is still subject to the decision of the Supreme Court of the United States.

Despite this Circuit split, SCOTUS still seems to be waiting for the right case to decide the Second Amendment issue.

The Peruta case has created a drastic Circuit split with the Ninth and Seventh Circuits on one side of the issue, and the Second, Third, and Fourth Circuits on the other.  The Ninth and Seventh Circuits espouse the view that the right to bear arms extends beyond the home, and that, based on the Second Amendment, individuals have the right to bear arms in public.  This is in direct contrast with the Second, Third, and Fourth Circuits, who have indicated that the only purpose of the Second Amendment is to promote the militia.  With such a drastic Circuit split, many will begin turning directly to the Supreme Court of the United States in order to resolve this dispute.

Even with this sharp split, the Supreme Court recently denied certiorari for three Second Amendment cases pending appeal, two of which were brought by the National Rifle Association (NRA).  Whether the Supreme Court is just waiting for the right case or wants these issues fleshed out further in the lower courts, it will probably not be long before the Supreme Court will decide the Second Amendment issue on some scale.

Davis Puryear, Former Managing Editor
About Davis Puryear, Former Managing Editor (15 Articles)
Davis Puryear served as the Managing Editor of the Campbell Law Observer during the 2014-2015 school year. In 2012, Davis graduated from the University of South Carolina with degrees in Finance and Marketing. Davis has previously interned with Hutchens Law Firm of Fayetteville and the Cumberland County District Attorney's Office. He is from Fayetteville, North Carolina. Davis graduated from Campbell Law School in May 2015.
Contact: Email