Is This the Supreme Court's Next Big Second Amendment Case?

SCOTUS may soon decide whether or not to hear arguments in Peruta v. California.

Does the Second Amendment right to keep and bear arms extend outside the home? Does it cover the right to carry concealed firearms in public? An important case now pending before the U.S. Supreme Court for possible review may provide definitive legal answers.

At issue in Peruta v. California is a state law that says conceal-carry permits will only be issued to those persons who have demonstrated to the satisfaction of their local county sheriff that they have a "good cause" for carrying a concealed firearm in public. What counts as a "good cause?" In the words of one San Diego official, "one's personal safety is not considered good cause." In effect, the local sheriff has vast discretion to pick and choose who gets a permit and who doesn't. Because the guidelines are unclear there is a severe risk of arbitrary enforcement. As one previous court ruling on the matter observed, "in California the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a concealed-carry permit. And, in San Diego County, that option has been taken off the table."

A constitutional challenge to this law inevitably followed. But that challenge suffered a major defeat in June 2016 when San Diego's "good cause" requirement was upheld by a divided 11-judge panel of the U.S. Court of Appeals for the 9th Circuit on the grounds that the Second Amendment offers no protection for gun owners in this area. "Because the Second Amendment does not protect in any degree the right to carry concealed firearms in public," the 9th Circuit majority said, "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."

In January 2017 Edward Peruta and his fellow petitioners asked the U.S. Supreme Court to step in and overturn that 9th Circuit ruling. According to the Court's docket, their petition has now been considered by the justices in private conferences held on March 24, on March 31, on April 13, and on April 21, but no decision has yet been reached. This Friday, April 28, is the next private conference on the Court's calendar, and the justices are scheduled to consider the Peruta petition once again.

There are good reasons for the Court to take the case. While the 9th Circuit has endorsed a narrow interpretation of the Second Amendment's reach outside the home, other federal circuits have arrived at a different interpretation. In its 2012 decision in Moore v. Madigan, for example, the U.S. Court of Appeals for the 7th Circuit struck down Illinois' statewide ban on carrying arms in public on the grounds that it violated the Second Amendment. "One doesn't need to be a historian to realize that a right to keep and bear arms in the eighteenth century could not rationally have been limited to the home," the 7th Circuit held.

That kind of circuit split is usually enough to get the Supreme Court's attention.

The justices may also be interested in settling a debate about federalism and the role of the federal courts that is lurking in the background of this case. For example, the gun control side insists that state and local officials are best positioned to balance the rights of gun owners against the specific local needs for more stringent firearms regulations. According to this view, federal judges should defer to these sorts of state and local decisions. By contrast, the gun rights side insists that the idea of constitutional liberty is turned on its head when a provision of the Bill of Rights is restricted in one part of the country and respected in another. This view urges the federal courts to consistently enforce the Second Amendment nationwide.

We may find out as soon as this Friday if the Supreme Court decides to take the case.