A pro-Second Amendment decision recently came down from one of the most unlikely appellate courts in the Republic; the 9th Circuit Court of Appeals. The 9th Circuit is considered to be the most liberal court in the federal judiciary. It also has a history of hostility to constitutional rights protected under the 2nd Amendment.
However, in Peruta v. San Diego, a 3 judge panel of the Court affirmed the right of law-abiding citizens to carry handguns for lawful protection in public.
California law has a process for applying for a permit to carry a handgun for protection in public, with requirements for safety training and a background check. These requirements were not challenged. The statute also requires that the applicant have “good cause,” which was interpreted by San Diego County to mean that the applicant is faced with current specific threats. The 9th Circuit, in a 2-1 opinion written by Judge O’Scannlain, ruled that Peruta was entitled to Summary Judgment, because the “good cause” provision violated the Second Amendment.
The Court ruled that a government may specify what mode of carrying to allow (open or concealed), but a government may not make it impossible for the vast majority of Californians to exercise their 2nd Amendment right to bear arms.
The Peruta Court expressly stated that its ruling only applied to law-abiding citizens. The plaintiffs did not challenge the statutory requirement that a permit applicant must be of “good moral character.”
The decision properly examined the text of the Second Amendment, the Supreme Court decisions in recent cases such as Heller, and the legal history of the right to bear arms. The Court primarily focused its attention on historical cases and commentators that have been favorably cited by the United States Supreme Court. This lead to the conclusion that the right to carry a gun in public places for lawful self-defense is part of the Second Amendment right.
Regarding the “good cause” requirement, as interpreted by San Diego, the 9th Circuit held that this was a near-total destruction of the right to bear arms. Therefore, San Diego’s policy is unconstitutional.
Unfortunately, the Peruta decision did not strike down California’s statutes about licensing for the carrying of firearms. The decision simply said that the “good cause” requirement may not be interpreted in a manner that disables law-abiding citizens from being able to obtain carry permits.
It is possible that San Diego County may petition for en banc review. This means that the entire 9th Circuit (not just a 3 judge panel) could rehear the case. Additionally, the case may end up being heard by the United States Supreme Court.
If the high court ends up with this case anytime soon, I would anticipate the Court affirming this 9th Circuit panel decision. That is if the Court maintains its current fragile ideological framework regarding the right to keep and bear arms.
For now, we can honestly say that at least part of the 9th Circuit actually partially recognizes the Constitutional protections promised in the 2nd Amendment. I would never dream that I could say that.