Friday, March 27, 2015
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Court Grants En Banc Rehearing in Challenge to Gun-Permit Rules
From Staff and Wire Service Reports
The Ninth U.S. Circuit Court of Appeals yesterday granted en banc rehearing in two cases where a three-judge panel struck down the state’s requirement that applicants for concealed-firearms permits show “good cause.”
In brief orders, the court said a majority of its unrecused active judges had voted to grant the rehearings sought by Attorney General Kamala Harris.
The panel ruled in February of last year that the state’s requirement that an applicant demonstrate a real danger or other reason beyond simple self-defense to receive a permit violates the Second Amendment as interpreted in District of Columbia v. Heller (2008) 554 U.S. 570 and McDonald v. City of Chicago (2010) 130 S.Ct. 3020.
C.D. Michel, an attorney for the plaintiffs, said the Ninth Circuit’s decision was anticipated, and he was prepared to appeal to the U.S. Supreme Court if necessary. “The Second Amendment protects both a right to keep, and a right to bear arms,” Michel told The Associated Press in an email.
Harris Happy
Harris and the Brady Center to Prevent Gun Violence applauded the grant of rehearing. “The Second Amendment does not force the people of California to adopt the corporate gun lobby’s ‘guns everywhere’ vision,” Jonathan Lowy, director of the legal action project at the Brady Center, said in a statement.
Harris and the Brady Center sought to intervene in the main case after San Diego County Sheriff William Gore declined to seek rehearing, although Edward Prieto, the Yolo County sheriff sued in the other of the two cases—disposed of by unpublished memorandum after the San Diego case was ruled on—sought rehearing.
Harris said local law enforcement agencies must have the discretion to determine who can carry concealed and loaded weapons. She urged the court to “restore this critical law enforcement authority to protect public safety.”
California prohibits people from carrying handguns in public without a concealed-weapons permit. State law requires applicants to show good moral character, have good cause and take a training course. It’s generally up to the state’s sheriffs and police chiefs to issue the permits, and most require an applicant to demonstrate a real danger or other reasons beyond simple self-defense to receive one.
In the San Diego case, the court ruled 2-1 that 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.
O’Scannlain Opinion
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.
O’Scannlain surveyed the history of Second Amendment case law, culminating in Heller and McDonald, which 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.
The San Diego 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.
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.
He wrote:
“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 California firearm regulatory scheme,” he wrote. “The majority opinion conflicts with Heller, the reasoned decisions of other Circuits, and our own case law.”
The cases are Peruta v. County of San Diego, 10-56971, and Richards v. Prieto, 11-16255.
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