In Peruta v. City of San Diego, California residents objected to the state’s law which requires residents to show “good cause” for obtaining a concealed carry weapons permit, a requirement that has been strictly construed in many California counties, including San Diego. On June 9, 2016, the Ninth Circuit Court of Appeals issued an en banc (eleven judge panel) decision reversing its earlier ruling and finding, based on history and precedent, that “there is no Second Amendment right for members of the general public to carry concealed firearms in public.” Immediately, the NRA declared the decision to be outside the mainstream. The Peruta decision, however, follows at least four other Circuit court decisions that reached essentially the same conclusion. Unfortunately, this means the case is, in fact, well within the mainstream of modern court decisions.
- The Peruta Decision
The Peruta Court opened its discussion noting that the Plaintiffs based their arguments on the decisions of the U.S. Supreme Court in District of Columbia v. Heller, decided in 2008 and McDonald v. City of Chicago, decided in 2010. Heller successfully challenged the District of Columbia’s ban on handgun ownership and the requirement that all other firearms be kept unloaded and locked when in the home. This decision applied only to the District of Columbia but was extended to the states by the McDonald case. Both of these decisions, however, recognized that the Second Amendment is not unlimited and specifically noted that the decisions should not be understood to overturn long-allowed prohibitions on possession of firearms in certain circumstances. Heller contained a statement that courts in the 19th Century had consistently found that there was no constitutional right to carry a concealed weapon outside the home. It is this language that the Peruta court has found operative.
In Peruta, the Ninth Circuit noted that it came to its decision by engaging in the same historical analysis that the Supreme Court used in Heller and McDonald. The lead to a 21-page analysis of the law regarding concealed carry from 14th Century English bans on private carrying of weapons to the 1897 decision of the Supreme Court in Robertson v. Baldwin, 165 U.S. 275, which stated that “the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.” On the basis of this historical analysis, and the language in Heller, the court found that there is no Second Amendment right for the general public to carry a concealed weapon outside the home, and found that “any prohibition or restriction a state may choose to impose on [such] concealed carry … is necessarily allowed by the Amendment.”
The court was clear to limit its ruling to the issue above. It repeatedly acknowledged that the Second Amendment might protect some right to carry in public, including open carry, but that such an issue was not before the court in this case. Specifically, the court acknowledged that California’s ban on open carry may be an infringement of the Second Amendment, but noted that issue was not raised by this case.
2 .Other Federal Circuit Court Decisions on Concealed Carry
With this decision, the Ninth Circuit joins the Second, Third, Fourth and Tenth Circuits in recent findings that there is no blanket constitutional right to concealed carry outside of one’s home. In Peterson v. Martinez, the Tenth Circuit engaged in a similar analysis to that in Peruta and found that neither the Second Amendment or the Privileges and Immunities clause of Article IV of the Constitution create a right to concealed carry. In Woollard v. Gallagher, the Fourth Circuit found that Maryland’s requirement that an applicant for a concealed carry permit show a “good and substantial reason” to have such a permit was constitutional under the Second Amendment. Similarly, Kachalsky v. Cty. Of Westchester, upheld the constitutionality of New York’s “proper cause” restrictions on concealed carry permits, and Drake v. Filko, upheld New Jersey’s “justifiable need” restriction.
The only Circuit to come to a different decision is the Seventh Circuit in Moore v. Madigan. That court refused to engage in a historical analysis of the Second Amendment and concealed carry when striking down Illinois’ blanket ban on carrying weapons outside the home in any way. That court specifically distinguished the New York law at issue in Kachalsky from the one before it and noted that Illinois law was broader than any other state’s laws, including the one at issue in Peruta.
Thus, the current state of the law with regards to concealed carry is that there is no constitutional right to do so, although multiple courts have acknowledged that the law cannot ban all rights to carry guns outside of one’s home.
3. What’s Next
It’s likely that Peruta will be appealed to the Supreme Court, but it’s also likely that the Court, with only eight justices and no real split of authority on the issue, will take the case. Thus, California will remain a “may issue” state with a hodgepodge of different restrictions in obtaining a concealed carry permit depending on the county in which ones lives. Until the Supreme Court has a compelling reason to consider the issue, the law will be that the Second Amendment does not, in fact, protect the right of citizens to carry a concealed weapon outside the home.