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.

Comments

[Poppa Kilo]

I have an absolute right of self defense.

[Suthenboy]

Sure you do, after you absolutely get the right forms and permission from the right people.

[DavidVazquez]

"fter you absolutely get the right forms and permission from the right people."
I assume that is total sarcasm...

We need "permission" to exercise our rights? Permission from whom exactly?

[Tonio]

Hi, David, and welcome to H&R. Suthenboy was indeed being sarcastic.

Pro-Tip: when someone says something completely anti-libertarian here, and that comment is ignored, the poster was joking. We are more than happy to fling poo at even the lamest sock puppet trolls (like the 'Plug and Tony).

[WTF]

"We want this issue settled nationally," said Brandon Combs, executive director of the Calguns Foundation

Good luck with that, the SCOTUS already let stand Drake, which upheld New Jersey's version of these restrictions.

[Drake]

I was hoping something might come down that would make applying for a carry permit in NJ less quixotic.

[UnCivilServant]

In NY they can (and do) reject applications that haven been filled out using the wrong color pen under the rationale that the instructions on the form say to use X color ink and you used Y (I can't remember which was blue versus black). There's also a field for "have you ever been rejected on an application for a permit before?" where you will thenceforth be required to answer 'yes' and give them another exuse to reject because you once used the wrong color ink.

[DavidVazquez]

Another reason why I would never, ever, consider living in NJ.

[Mass]

And don't forget about the Affordable Care Act. Just on that basis alone you know the "supreme" court is about as supreme as a pizza.

Their black robe costumes are nice though.

[The Late P Brooks]

Your right to self expression ends at a policeman's right to never be in fear for his life!

[Episiarch]

Quite simply, you have the right to defend yourself. Part and parcel of that is the ability to carry a weapon (or weapons), concealed or no. Anything which purports to restrict that is morally bankrupt and should be ignored.

[Mass]

Abso-f'ing-lutely. The right to self-defense is above any constitution.

Rights cannot be granted, but only taken away.

[seguin]

The more important question: Mom jeans, right or privilege?

[Drake]

Those are Mom jeans?

[seguin]

I guess not...they just ride high.

[Suthenboy]

"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."

This has been the case over and over and over. It is well known by anyone who cares to look. People who contend that gun confiscation makes crime increase are lying pieces of shit. They should be spit upon and pelted with rotten eggs and fruit every time they try to speak.

[Cdr Lytton]

People who contend that gun confiscation makes crime increase are lying pieces of shit.

Uh, should there be a "doesn't make" in there?

[NYC2AZ]

"Chicago crime rate drops as concealed carry applications surge"

As much as may agree with the premise of expanded carry rights reducing crime, in the case of Chiraq, the reduced crime rates have a lot more to do with CPD Chief Garry McCarthy and the Rahm Father's creative numbers game:

The Truth About Chicago's Crime Rates Part 1

The Truth About Chicago's Crime Rates Part 2

[NYC2AZ]

Damn links:

Part 1: http://www.chicagomag.com/Chic.....ime-rates/

Part 2: http://www.chicagomag.com/Chic.....tatistics/

[Rebel Scum]

A well-regulated militia, being necessary to a free State, the right of the people to keep and bear arms shall not be infringed. - US Constitution

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free State, therefore, the right of the people to keep and bear arms shall not be infringed. - Constitution of the Commonwealth of VA

I see no ambiguity. Additionally, you can argue to the end of the Earth whether or carrying a firearm (period) is a "right". It does not change the fact that 1) The natural right to self defense extends to one being armed, and 2) the federal government and that of my state are FORBIDDEN from preventing a free person from being armed. (That's not to say that they won't ignore that fact.)

[Mass]

The right to defend one's life against lethal force necessarily implies the use of an equal an opposing force (i.e. lethal).

[R C Dean]

I don't see a good faith reading of the Constitution that allows any restriction on carrying a gun (other than as part of a judicially imposed punishment after full due process).

The dodge used by the Court in innumerable cases (well, if you have an alternative to X available, restricting X isn't REALLY an infringement) is obvious bullshit.

Your right to carry a gun is infringed if you are required to do so openly (or required to conceal it, as in Texas). Those requirements are restrictions, and restrictions are infringements.

[mad.casual]

Those requirements are restrictions, and restrictions are infringements.

I'm with you on not restricting people from carrying guns. I'd be fine if my neighbor wanted to own an A-bomb. However, that's provided the purchase isn't concealed from the bank that holds his mortgage, his insurers, the NRC, etc.

We both have a right to defend ourselves using knowledge of who's armed and who's not and it's just as, if not more, important than being actually armed ourselves. Additionally, it's a active infringement to deprive me of some/any/all knowledge as opposed to a passive infringement of letting people choose from a variety of options.

IDK, that people have a right to lie or conceal the truth, if they do, IDK what good it does going on about a 'good faith' reading of the Constitution.

[UnCivilServant]

Hey! I only got this Davy Crockett for my Fallout costume. I still have to vismod it to canon spec though...

[R C Dean]

mad, are you saying that someone who is carrying concealed is infringing on other people's right to know who's packing and who's not?

Because if that's what you're saying, I have to disagree.

[mad.casual]

Because if that's what you're saying, I have to disagree.

I'm saying that a good faith reading of the 2nd Am. contains no implication wrt any sort of right to concealment.

IMO, any right to conceal said arms comes from the 4th and 5th and the presumption of innocence (wrt hiding weapons or tools) comes more from the 5th and 6th.

And, as a libertarian, I tend to consider the 4th and 5th to be more about interference and seizure of property and exhaustible goods/services and materials rather than ownership of non-material concepts like information and/or data.

The street goes both ways, IMO, the same reason people get mirandized or can't be tried and convicted in a secret court is the same reason people generally should be licensed to secretly transport firearms. I think there's plenty of room between the 2nd, 4th, 5th, and 6th for delineating (on all kinds of levels) "my uncle's brother's son's rifle in the trunk of my car" and shipping a crate of AK-47s to the Branch Davidians or the Iran Contras.

I think you'd agree that a federal firearms registry that everybody knows how to

[mad.casual]

Er, I think you'd agree that a federal firearms registry that everybody knows how to circumvent or is persistently outdated and unreliable is equally invalid as a waste of seized resources as it is a violation of the 2nd Am.

[The Laconic]

IMO, any right to conceal said arms comes from the 4th and 5th and the presumption of innocence (wrt hiding weapons or tools) comes more from the 5th and 6th.

What about the 9th? Just because right to concealment ain't listed, doesn't mean it don't exist.

Then again, I'm just a simple country lawyer / caveman.

[mad.casual]

What about the 9th? Just because right to concealment ain't listed, doesn't mean it don't exist.

At the point of the 9th, you're just making up rights and pretty much stating that a "good faith reading of the 2nd" doesn't speak to concealment as much as a debate about "the right to deceive" vs. "the right to know".

IANAL, but I do own a pen and a phone.

[The Laconic]

But I do have a right to deceive a potential aggressor.

And the point of concealment is to deceive a potential aggressor, not to trick an innocent into doing something for my benefit.

In fact, it is the non-carrying innocents who gain by my concealment, as much as or more than I do.

[mad.casual]

But I do have a right to deceive a potential aggressor.

As written, I'm pretty sure you're wrong.

At the very least, you getting a license to secretly carry your gun on you for my benefit sounds awfully statist and potentially aggressive.

The sort of thing that makes me think you might not read the 2nd Am. in the same good faith I do.

[Restoring the Dream]

Do you have a right to know how much money I'm carrying? This seems about the same. If you want to know who's carrying concealed, just assume everyone is.

[epeeist]

There are limits on speech (though I think restrictions often go too far), I personally think that "open carry" requirements (versus concealed carry) might arguably be more consistent with the right to bear arms. I'm fine with restrictions on bringing guns into courtrooms; etc.

I actually have more of a problem with requiring concealed carry (and not allowing or otherwise restricting open carry) because carrying a gun openly also has a speech component...

[Rebel Scum]

There are limits on speech

THAT something exists, does not make it legitimate, right or just.

[mad.casual]

If you don't think there are just limits on free speech, I've got some land in the everglades to sell you.

[Mass]

The right to free speech is not unlimited, since you don't have a right to threaten someone with violence, or slander them through false accusations.

The right to free speech, like the right to individual liberty, presumes a morally correct exercise thereof.

That said, your point is valid, taken in isolation. That something exists does not make it valid. Legalized violence (various police actions), theft (asset forfeiture), etc. are legal, but not moral.

[antisocial-ist]

The Ninth Circuit, you will never find a more wretched hive of scum and villainy.

[WTF]

The Third Circuit comes immediately to mind. In Drake v. Jerejian they held that New Jersey's prohibition on bearing arms did not burden the right to bear arms.

[John C. Randolph]

Kozinski's in the ninth circuit, and he's about as libertarian as any judge has been in this century.

-jcr

[John C. Randolph]

..or the previous century.

-jcr

[The Late P Brooks]

The dodge used by the Court in innumerable cases (well, if you have an alternative to X available, restricting X isn't REALLY an infringement) is obvious bullshit.

The police are there to protect you. You don't need a gun of your own, you paranoid crackpot.

[WTF]

Of course the court also ruled that the police have absolutely no obligation to protect you.

[ola]

Does a 12 year old kid have a right to open carry a toy gun?

[The Laconic]

No. Nor do they have a right to open carry a banana. Or shape their hand into the form of a pistol, unless the hand is kept within a coat or pants pocket.

[to_each_his_own]

FWIW, Out of 58 counties in California, 20 are "shall Issue" 21 if you count Sacramento county.

Thankfully I live in one. 🙂

[Agammamon]

Concealed carry a privilege? maybe, but *open carry* is a right.

Personally, I'm cool with either of the following:

1. Open carry is not restricted in any way, but you can permit/restrict concealed as you wish.

2. Or - restricting open carry means that you may not require permitting of any sort for concealed carry.

[CN_Foundation]

This nation became an oligarchy ruled by the chosen from 1928 to McCutcheon. I would carry a firearm for self defense and print out my own license long before I might respect the whim of SCOTUS of senior citizens too old to be judges in most U.S. States or in most of the Free Earth. No; I will probably never again carry a firearm but would not dignify SCOTUS with consideration of any judicial fiat they might make. Neeley v 5 FCC Commissioners, et. al.,(14-cv-5135)(14-3447)
See http://apps.fcc.gov/ecfs/docum.....0000989255

[John C. Randolph]

It's a human right, which trumps all governments and legislation. Any government action purporting to prevent self-defense is a crime against humanity.

-jcr

[California Right To Carry]

The answer to "Is Concealed Carry a Privilege or a Right?" is relatively easy to find if you are seeking an answer in a legal context. The first in-depth analysis of the Second Amendment by the US Supreme Court was in a 2008 decision - District of Columbia v. Heller. The Court made it perfectly clear that:

"Like most rights, the right secured by the Second Amendment is not unlimited...For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues."

Which is why every concealed carry appeal since the Heller decision in 2008 has lost in every Federal and State court until 2 out of 29 active circuit court judges decided that not only did the US Supreme Court mean exactly the opposite of what it said in three decisions which held that concealed carry is not a right. These 2 judges tried to dance around that fact. We should know this year if they were successful.

In the interest of full disclosure, I have a case pending before the 9th Circuit Court of Appeals which seeks to overturn California's bans on openly carrying loaded firearms as well as seeking to overturn the two recently enacted bans on openly carrying unloaded, modern firearms.

That case is Nichols v. Brown - http://blog.californiarighttoc.....age_id=739