Today the 9th Circuit Court of Appeals finally delivered their opinion* to Puerta v. County of San Diego. This is the rehearing of the original case that ruled 2-1 to strike down the restrictive means of issuing concealed carry permits. Anyone familiar with the proud reputation of the 9th Circuit Court of Appeals this judgement is of no surprise. The only surprise was the delinquency of the judgement. After a short summary of laws that brought us here, I will summarize the majority decision and highlight significant arguments in the dissents.
Concealed carry permits (CCW) or Concealed Handgun Licenses (CHL) are available in all 50 states. In 42 of the 50 states the law requires any resident who is legally eligible to possess or own a firearm who applies and completes the process to get a CCW/CHL, this is known as Shall Issue. In other parts of the nation with growing frequency, states are passing Constitutional Carry which allows a person to carry a concealed handgun without a permit. The remaining 8 states practice, May Issue, that is for whatever reason, a person may be denied a concealed carry permit or in some of these states a firearm permit. New Jersey Second Amendment Society has an interesting undercover series on YouTube.
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| Taken from USA Carry |
California is one of the eight states which are May Issue. As it stands, the issuance is based on the individual policy of each county’s sheriff. The sticking point in order to get a CCW is the “good cause” and “good moral character.” The point of this case was Yolo and San Diego counties had stringent understandings of “good cause.”
Both counties define “good cause” as requiring a particular need. San Diego County defines “good cause” as “a set of circumstances that distinguish[es] the applicant from the mainstream and causes him or her to be placed in harm’s way.” Similarly, Yolo County’s written policy requires “valid” reasons for requesting a license. Importantly, under both policies a general desire for self protection and protection of family does not constitute “good cause.” (pg. 68)
The majority opinion narrowly addresses if the 2nd Amendment applies to protect concealed carry. The vast majority of the opinion’s argument approaches this issue from a historical legal analysis that is rather thorough. I would question why the Court looked to the restrictions of serfs and colonists under the King as positive examples showing the “reasonability” of such carry restrictions. There are also 19th century case examples in which numerous localities banned concealed carry to also include bladed weapons. Within the narrow scope of the case and question, the majority does a fair shake…
Except one thing. None of the other states who are may issue have also banned unloaded and loaded open carry statewide. The primary reasons the 3-judge panel struck down the “good cause” requirement the first time was precisely because California banned open carry in populated areas. Here are some quotes from the dissents to elaborate the weakness of the majority opinion.
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… Indeed, the majority’s lengthy historical analysis fails to appreciate that many of its cited cases either presumed a right to openly carry a firearm in public or relied on a pre-Heller interpretation of the Second Amendment. (pg. 60)
The Second Amendment guarantees “the right of the people to keep and bear Arms.” U.S. Const. amend. II. Heller held that the Second Amendment conferred an individual right to keep and bear arms for self-defense. Indeed, Heller adopted Justice Ginsburg’s definition of “carries a firearm” to mean “wear, bear, or carry... upon the person or in the clothing or in a pocket, for the purpose... of being armed and ready for offensive or defensive action in a case of conflict with another person.” (pg. 61)
Heller defined the right to bear arms as the right to be “armed and ready for offensive or defensive action in a case of conflict with another person.” (pg. 70)
The counties and California have chipped away at the Plaintiff's’ right to bear arms by enacting first a concealed weapons licensing scheme that is tantamount to a complete ban on concealed weapons, and then by enacting an open carry ban. Constitutional rights would become meaningless if states could obliterate them by enacting incrementally more burdensome restrictions while arguing that a reviewing court must evaluate each restriction by itself when determining its constitutionality. (pgs. 75-76)
The majority’s holding—that California must accommodate the right to bear arms in public through open carry—is unsupported by Supreme Court precedent and contrary to federalism principles. The Supreme Court has never dictated how states must accommodate a right to bear arms. (pg. 77, emphasis added)
However, the County Defendants and California have failed to provide sufficient evidence showing that there is a reasonable fit between the challenged laws and these two objectives… This distinction is important
because the County Defendants and California have not provided any evidence, let alone substantial evidence, specifically showing that preventing law-abiding citizens, trained in the use of firearms, from carrying concealed firearms helps increase public safety and reduces gun
Violence… There is simply no evidence in the record showing that establishing a licensing regime that allows trained law abiding citizens to carry concealed firearms in public results in an increase in gun violence. (pgs 82-83)
*This is the link of my reviewed text. If you want a blank version of the opinion here you go. The key to my highlights are yellow
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