Metropolitan News-Enterprise


Friday, February 28, 2014


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A.G. Harris Asks Ninth Circuit for En Banc Review of Divided Panel’s Concealed-Carry Ruling


By a MetNews Staff Writer


Attorney General Kamala Harris yesterday asked the Ninth U.S. Circuit Court of Appeals to grant en banc review of a divided panel ruling that would gut the state’s requirement of “good cause” to obtain a concealed-carry firearms permit.

The Feb. 13 ruling that requires permits to be issued to law-abiding citizens based on a generalized desire to defend themselves “is neither procedurally proper nor substantively sound, fails to follow circuit precedent concerning the proper method of analyzing Second Amendment claims, and is in direct and acknowledged conflict with the holdings of three other federal courts of appeals,” Harris wrote.

“If allowed to take effect,” she continued, “it could require officials throughout the State to treat a bare assertion that an applicant seeks to carry a gun for purposes of self-defense as good cause for issuing concealed-carry permits to individuals even in urban and other residential areas.”

Harris stepped in after San Diego County Sheriff Bill Gore said last Friday he would not seek further review of the ruling, which directs the district court to issue an injunction requiring him to issue carry permits to four plaintiffs whose applications were denied because they could not cite a specific threat that necessitates their carrying concealed firearms.

‘Special Need’

The panel majority—Judge Diarmuid O’Scannlain, joined by Judge Consuelo Callahan—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 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.

Harris, in her petition yesterday, agreed with Thomas that the majority had gone way beyond the issues actually presented in the case, and placed the constitutionality of the state’s entire firearms regulatory scheme in doubt.

“As Judge Thomas explains, in a case in which only the implementation of a concealed-carry permitting scheme has been challenged, the recognition that such a scheme is clearly permissible should have been the end of the matter,” the attorney general wrote. “...Instead, the panel majority has framed a ruling based on a broad assessment of the constitutionality of California’s whole system for regulating the public carrying of guns, and ordered a remedy that contemplates the immediate, judicially-compelled proliferation of licenses for the concealed carrying of handguns in public places….”

That ruling, she argued, goes well beyond the requirements of District of Columbia v. Heller (2008) 554 U.S. 570 and McDonald v. City of Chicago (2010) 130 S.Ct. 3020.

Heller Distinguished

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.”

Heller, Harris noted, expressly recognizes that possession of firearms outside the home is subject to reasonable regulation, and that regulation is “presumptively valid.”

The attorney general urged the court to accept en banc review in order to avoid conflict with Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012), Drake v. Filko, 724 F.3d 426 (3d Cir. 2013), and Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013).

Those cases upheld New York, New Jersey, and Maryland laws requiring a “special need,” a “justifiable need,” and a “good and substantial reason,” respectively, in order to obtain a concealed-carry permit.

The case is Peruta v. County of San Diego, 10-56971.


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