Is Concealed Carry a Privilege or a Right?
California files appeal to court's latest pro-gun-rights decision
The federal courts would never uphold a law requiring people to show "good cause" before they could speak in public or march in a parade. It would be a violation of our First Amendment rights. Yet an ongoing court battle examines whether similar rules regarding the carrying of firearms is an equally outrageous violation of the Second Amendment.
The case started in 2008 in San Diego County, when Edward Peruta and other gun owners challenged San Diego County's process for issuing concealed-carry permits. State law gives sheriffs the power to determine "good cause" – and San Diego County required documentation showing the applicant faced some sort of specific threat to merit one.
The result in restrictive counties is a small number of residents — people connected to law enforcement, lawyers, business people facing security risks and influential people — were free to exercise such "rights." Actually, it became a "privilege." In February, the 9th U.S. Circuit Court of Appeals sided with the gun owners.
"Because the Second Amendment 'confer(s) an individual right to keep and bear arms,' we must assess whether the California scheme (in light of San Diego County's policy) allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical, responsible, law-abiding citizens to bear arms in public for the lawful purpose of self-defense," ruled the court. "The answer … is a resounding 'no.'"
That wasn't the end of the matter. Sheriff Bill Gore chose not to appeal, which led to a belated response by gun-control advocates, including police and sheriffs' organizations, an activist group and California Attorney General Kamala Harris. But earlier this month, a divided 9th Circuit panel denied Harris and the others standing to be a party in the case.
The court said they waited too long. The state had expected Gore to appeal and when he didn't, that left it flat-footed. In addition, justices found no exceptional need to grant the state such standing given the specific case is about the enforcement of a local regulation.
On Wednesday, the AG's office said it would ask the court to refer that decision to an 11-judge "en banc" panel. Her goal is to let sheriffs continue requiring proof of threats — rather than general self-defense reasons – to approve giving Californians a permit to carry a handgun.
Peruta applies to San Diego County, but is being used to challenge other counties' permitting rules. San Diego County is waiting for the 9th Circuit case to be official, whereas Orange County now is using looser standards. Sacramento County already moved to a "shall issue" standard — i.e., issuing permits to any citizens who meet basic standards (background check and training).
There's still a Yolo County case that's arguing the same basic issue. And another one in Hawaii, which also is part of the 9th Circuit's jurisdiction. And appeals courts in other parts of the country have upheld these highly restrictive concealed-carry standards, leading to widespread confusion. This definitely has U.S. Supreme Court written all over it.
"We want this issue settled nationally," said Brandon Combs, executive director of the Calguns Foundation. Likewise, the plaintiff's attorney Chuck Michel of Long Beach would prefer to skip the en banc process. Attorney General Harris should just petition the high court directly. "I would join her in that request," he said.
In a statement after the initial Peruta ruling, Harris vowed to pursue an appeal – describing it as a matter of public safety. But a Washington Times report from August headlined, "Chicago crime rate drops as concealed carry applications surge," is consistent with news from the rest of the country. It doesn't prove causation, but concealed-carry hasn't led to blood in the streets.
Harris' office was chagrined that the 9th Circuit's ruling would require the state "to issue concealed-carry permits to individuals based on nothing more than the applicant's assertion that they wish to carry a gun for self-defense." But that's "nothing more" than the foundation of a free society. Gun owners shouldn't need the government's permission to carry a firearm any more than they need its OK to give a public speech.