Divided 9th Circuit likely tees up case for US Supreme Court
Daily Journal
June 10, 2016
California residents cannot carry a concealed weapon without showing “good cause” to do so, the 9th U.S. Circuit Court of Appeals ruled Thursday.
The divided opinion of 11 judges yielded one concurrence and several dissents on a closely-followed case that started with a lawsuit by residents of Yolo and san Diego counties challenging concealed carry ordinances.
Writing for the majority, Circuit Judge William A. Fletcher ruled that the Second Amendment right to bear arms of the U.S. Constitution does not extend to Californias who wish to carry ones that are hidden from view.
“As the uncontradicted historical evidence overwhelming shows, the Second Amendment does not protect, in any degree, the right of a member of the general public to carry a concealed weapon in public,” Fletcher wrote.
The 89-page opinion spent considerable time analyzing how bearing arms was defined historically in England from the 1300s onward and by the American colonies. Peruta v. County of San Diego, 2016 DJDAR 5523.
This reasoning comes from a 2008 U.S. Supreme Court decision on the right to carry handguns, District of Columbia v. Heller, which held the Second Amendment was a “right inherited from our English ancestors.”
“By the end of the eighteenth century, when our Second Amendment was adopted, English law had for centuries consistently prohibited carrying concealed (and occasionally the even broader category of concealable) arms in public,” Fletcher wrote , adding that the panel found nothing “differed significantly” on the topic in American colonial history.
Circuit judges Consuelo M. Callahan, Barry G. Silverman, Carlos Bea and N. Randy Smith dissented.
Callahan, considered by the majority as writing the “principal dissent,” wrote that the 7-4 opinion ignores the big picture of the right to bear arms.
“The majority sets up and knocks down an elaborate straw argument by answering only a narrow question – whether the Second Amendment protects a right to carry concealed firearms in public,” Callahan wrote. “But this approach is contrary . . .to the prescribed method for evaluating and protecting broad constitutional guarantees.”
Followers of the opinion said Thursday they were not surprised by the outcome, but some expressed disappointment, noting strict permit guidelines required in certain California cities and counties to obtain a weapon.
“This could effectively eliminate in California the right for some people to carry arms,” said Ara R. Jabagchourian, a San-Mateo based attorney and former partner with Cotchett, Pitre & McCarthy LLP who is not involved on the case.
“I think there’s going to be trouble with the opinion,” he said, adding that he could see it appealed to the U.S. Supreme Court because of the split among circuits on the issue.
A 7th Circuit opinion has rejected so-called “good cause” requirements to have a concealed weapon. So has the District of Columbia Circuit.
Going the opposite way, the 2nd, 3rd, and 4th circuits have affirmed good cause or special need rules.
Erwin Chemerinsky, dean of the UC Irvine School of Law, said the “court is clearly right” on Thursday’s opinion. “Fletcher does a very good job showing why this is not a right protected by the Second Amendment,” Chemerinsky said.
