Friday, February 14, 2014
Ninth Circuit Rejects ‘Good Cause’ Requirement for Gun Permits
From Staff and Wire Service Reports
California law requiring “good cause” to obtain a concealed-carry firearms permit violates the Second Amendment to the extent that it prohibits law-abiding citizens from obtaining permits based on a generalized desire to defend themselves, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In a 2-1 decision, the court reversed an order denying summary judgment to the California Rifle and Pistol Association and four individuals on their Second Amendment claim against San Diego County and Sheriff William Gore. The majority said the county’s policy of equating good cause with “special need,” such as the existence of specific dangers or threats, infringes on the right to “bear Arms” as the framers of the amendment envisioned it.
Judge Diarmuid O’Scannlain wrote for the majority, joined by Judge Consuelo Callahan. Judge Sidney Thomas dissented, arguing that states have the right to limit the scope of concealed-firearms possession outside the home as a matter of public safety.
Second Amendment Cases
O’Scannlain surveyed the history of Second Amendment case law, culminating in District of Columbia v. Heller (2008) 554 U.S. 570 and McDonald v. City of Chicago (2010) 130 S.Ct. 3020.
Those cases hold that the Second Amendment protects the rights of individuals to their own protection, and not merely the right to collective self-defense through the organized “militia.” And that right is not limited to the confines of a person’s home, O’Scannlain insisted.
“In fact…many of the same cases that the Heller majority invoked as proof that the Second Amendment secures an individual right may just as easily be cited for the proposition that the right to carry in case of confrontation means nothing if not the general right to carry a common weapon outside the home for self-defense.”
The county policy, in the context of the overall state regulatory scheme, imposes “a near-total prohibition on bearing” arms, O’Scannlain wrote, that is not really distinguishable from the absolute ban on keeping firearms at home, which was struck down in Heller.
The “text and history” of the Second Amendment, the judge said, establish that the San Diego County policy imposed an undue burden on the individual right. Rulings of three other circuits upholding similar restrictions, he said, failed to apply the required level of scrutiny.
Chuck Michel, an attorney who represented the plaintiffs, praised the ruling. “This decision is a very dramatic confirmation of the Supreme Court [Heller] ruling,” Michel said.
The San Diego County Sheriff’s Department said it was consulting with lawyers and declined comment.
The Brady Center to Prevent Gun Violence, a gun-control advocacy group in Washington D.C., said it hopes the decision will be overturned. It filed an amicus brief in the case urging the court to keep the current permitting policy in place.
“Neither history or precedent supports this aberrant, split decision that concocts a dangerous right of people to carry hidden handguns in public places to people whom law enforcement has determined that they have no good cause or qualifications to do so,” center spokesman Jonathan Lowy said.
Judge Sidney Thomas dissented, writing that the good-cause requirement limited the number of people carrying concealed handguns in public to those legitimately in need.
“Unfortunately, the majority never answers the question posed. Instead, in a sweeping decision that unnecessarily decides questions not presented, the majority not only strikes down San Diego County’s concealed carry policy, but upends the entire CaliforniUnfortunately, the majority never answers the question posed. Instead, in a sweeping decision that unnecessarily decides questions not presented, the majority not only strikes down San Diego County’s concealed carry policy, but upends the entire California firearm regulatory scheme,” he wrote. “The majority opinion conflicts with Heller, the reasoned decisions of other Circuits, and our own case law.”
Granting the policy the presumption of validity to which it is entitled, and applying intermediate scrutiny, leads to the conclusion that the policy does not violate the Second Amendment because it legitimately “limits the risk to public safety by reducing the number of guns in public circulation, but allows those who will most likely need to defend themselves in public to carry a handgun,” Thomas argued.
The case is Peruta v. County of San Diego, 10-56971.
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