It has been over a year since the en banc panel of the Ninth Circuit heard the oral arguments in the Peruta case. During that period, Antonin Scalia, Supreme Court Justice who wrote the Heller v. D.C. opinion, died. The Ninth Circuit has now reversed the ruling of the three judge panel in the Peruta case. Essentially, they ruled that there is no right to bear arms concealed outside the home in California. Then they ruled that they did not recognize a right to carry openly outside the home in California, because the Supreme Court has not directly ruled on the right to carry arms openly. From the latest Peruta ruling (pdf):
The en banc court held that the history relevant to both the Second Amendment and its incorporation by the Fourteenth Amendment lead to the same conclusion: The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment. 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.In the dissent, the choice to frame the question very narrowly, so as to avoid the obvious prohibition on the general public from carrying arms outside the home, is noted:
In sum, Heller indicates that concealed-weaponsBut, those who decided to narrow the question to concealed carry only, so as to rule against carry outside the home, won the day. Suspicions will float about that the Ninth was hoping that something such as Justice Scalia's death would occur before they made their decision. I doubt that is the case, although the Ninth stretched logic to reach the very narrow decision.
prohibitions may be proper as long as individuals retain other
means to exercise their Second Amendment right to bear
arms for self-defense. However, where other ways of
exercising one’s Second Amendment right are foreclosed, a
prohibition on carrying concealed handguns constitutes a
“severe restriction” on the Second Amendment right, just like
the District of Columbia’s unconstitutional handgun ban in
II. Given California’s Choice to Prohibit Open Carry, the
Counties’ Policies of Not Allowing for Concealed
Carry for Self-Defense are Unconstitutional
The case will likely be appealed to the Supreme Court. Given the makeup of the current court, I would not be surprised if the four leftist judges would quickly agree to hear the case; expecting that at worst, there would be a deadlock, thus insuring that the Ninth Circuit ruling will stand in California, Hawaii, and the rest of the Ninth Circuit, which is the largest circuit in the nation.
©2016 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch