Ninth Circuit Overturns Right to Concealed Weapons in Public—Any Chance This Won’t Get Political?

By Zosha Millman | LXBN | June 10, 2016

On Thursday the Ninth Circuit released an en banc review overturning a decision on Second Amendment gun rights. And no matter how you shake it, this is going to get political.

After all, the Ninth Circuit just made one of the biggest waves against gun control we’ve seen from a court in a while. The San Francisco-based court held in a 7-4 decision that Americans have no Second Amendment right to carry concealed weapons in public, upholding a California law requiring residents to show “good cause” for carrying a concealed handgun. And though the ruling was specifically about California’s law, the jurisdiction of the Ninth Circuit reaches throughout the western states.

The law in question was thought to be unconstitutional by Edward Peruta, who found that in two golden state counties sheriffs were denying applicants who weren’t able to show “good cause” for concealed carry licenses,such as documented threats or risky occupations. In their first pass at the case in 2014, the Ninth Circuit held 2-1 that the policy was overly restrictive. But after some behind the scenes work an en banc review was born, and the full Ninth Circuit found 7-4 against Peruta.

The National Rifle Association has said that the ruling shows how “out of touch” with the general public the Ninth Circuit is, and seems to see the Supreme Court as the ultimate showdown for this issue. It’s something the judges seem to agree with.

Photo Credit: ibropalic cc

“Therefore, because the Second Amendment does not protect in any degree the right to carry concealed firearms in public, any prohibition or restriction a state may choose to impose on concealed carry — including a requirement of “good cause,” however defined — is necessarily allowed by the Amendment. The en banc court stated that there may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public, but the Supreme Court has not answered that question,” said Judge William Fletcher in his opinion for the majority.

Whether this case is the one to bring there remains to be seen. Essentially it comes down to a “hail mary” appeal to the Supreme Court, and the small bit of chatter about what the next step would be for this case has generally seen its odds of making it there as low. Even if it were to make it there many, like Mark Joseph Stern at Slate, see it as an uphill battle in the face of 41 pages of “compelling, comprehensive analysis” not to mention a lot of historical law on their side:

The Peruta court noted this confinement of Heller and McDonald to arms inside the home. Then, following the Supreme Court’s lead, the court surveyed the history of the Second Amendment to ascertain how states understood the right to bear arms in the 18th and 19th centuries. The Second Amendment’s predecessor, the 1689 English Bill of Rights, “protected the rights of Protestants to have arms”—but “flatly prohibited” concealed carry. Before the Civil War, every single state to address the question of concealed carry allowed prohibitions against concealed weapons under the Second Amendment or its state analogue. (Technically, exactly one state court had invalidated a concealed carry ban, but the decision was later overturned.)

In the decades following the Civil War and the ratification of the 14th Amendment—which applied much of the Bill of Rights to the states—this consensus grew. A number of states explicitly granted legislatures the authority to outlaw concealed carry, which legislatures quickly did. Every state court that heard challenges to these bans ruled the same way, upholding the constitutionality of concealed carry prohibitions. In 1897, the Supreme Court of the United States even asserted that “the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.”

Until quite recently, in other words, there was a near-universal consensus among courts and legislatures that America’s Constitution, historical practices, and legal traditions do not create a right to carry concealed arms in public. That is enough, under Heller and McDonald, to reject the Peruta plaintiffs’ argument.

Sure, someday the Supreme Court might have to actually address the issue of concealed carry laws—something they have previously declined to take up. And in an election year (a bizarro universe one, no less) where the Supreme Court is dealing with being a man down and looking at staying that way for a long time, the odds of the justices taking on a hot button guns rights case seem slim. Especially since they have recently been avoiding gun control like the plague. The nation’s high court historically likes to keep its decisions slim, and this Ninth Circuit case would be hard to contain.

Not to mention that one of the best indicators that the justices would take up the case is a circuit split, which this case is not even historically against the grain on. The ruling aligns itself with previous “good-cause” requirements in the Second, Third, Fourth, and Seventh Circuits.

Still, a hot potato like this is politically charged either way: A refusal of certiorari (while understandable) is upholding a “major blow” to gun enthusiasts. Overturning the case would shake up and solidify the narrative on concealed carry rules, what some see as the next big chapter in the gun control debate.
“Probably the most important battleground of the Second Amendment has been whether there is a right to carry guns outside the home, and if there is, to what extent can states and localities regulate that right…There is no circuit split, but it’s certainly possible that the court could decide it wants to address this,” said Jonathan E. Lowy, the director of the Legal Action Project at the Brady Center to Prevent Gun Violence, in The New York Times. “I’d be surprised but not shocked if Supreme Court took this for review.”

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