A years-long fight against California’s stringent concealed carry law may soon reach the steps of the U.S. Supreme Court, after a federal appeals court rejected a challenge from pro-Second Amendment activists.
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The pro-gun control Law Center to Prevent Gun Violence ranks California’s laws as the strictest in the nation.
The state generally prohibits carrying guns in public areas. However, residents may apply through their respective counties for a license to carry a concealed weapon, provided they demonstrate “good moral character” and “good cause.” The counties are at liberty to define what constitutes “good cause,” which is the source of the challenge from Second Amendment supporters.
Though licenses are fairly easy to obtain in rural and inland counties, they are rarely issued in urban areas — authorized almost exclusively for off-duty police and other law enforcement officers. The urban counties contend that a generalized interest in self-defense does not constitute “good cause.”
A three-judge panel of the 9th U.S. Circuit Court of Appeals initially sided with pro-gun activists in 2014, finding that individuals enjoy Second Amendment protections inside and outside the home, and invalidated the California concealed carry law. (RELATED: Gun Control By Presidential Decree?)
An en banc panel of the Ninth Circuit overturned the 2014 ruling in June, finding there is no Second Amendment right to carry concealed weapons. En banc review occurs when all of a circuit’s judges agree to hear and decide a case together. Though in most appellate courts an en banc session is heard by all judges of the circuit, the 9th Circuit restricts most en banc rehearings to a bench of 11 of its 28 judges because of its size.
The 11-judge panel argued by a lengthy historical analysis that the right to carry firearms outside the home was not captured by the right to bear arms in common law jurisdictions. The ruling also relied on an 1897 Supreme Court precedent that dictates concealed carry does not fall within the scope of Second Amendment protection.
“Finally, and perhaps most importantly, in Robertson v. Baldwin, the United States Supreme Court made clear that it, too, understood the Second Amendment as not protecting the right to carry a concealed weapon,” Judge William A. Fletcher wrote for a seven-judge majority.
A key distinction between the 2014 and 2016 decisions is that the former evaluated the fundamental right to carry firearms outside the home, where the latter considered this question strictly in the context of the Second Amendment.
The full Ninth Circuit rejected a petition to rehear a previous ruling upholding the state’s regulations on concealed carry Monday.
“We will now ask the Supreme Court to set things straight,” said C.D. Michel, attorney for the challengers.
Second Amendment activists have had reasons for optimism at the high court in recent years. D.C. v. Heller struck down restrictive gun control laws in Washington, D.C. in 2008, incorporating gun rights in all federal enclaves. That work found continued success in McDonald v. Chicago, which incorporated Second Amendment protections against state and municipal governments in 2010. What the conservative majority of the early Roberts Court giveth, however, the circuit courts taketh away.
“A number of the lower federal courts, including the courts of appeals, have not been very robust in enforcing the Second Amendment, and have tried to limit the impact of Heller and McDonald in rather dramatic ways,” John Malcolm, senior fellow and director of the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told The Daily Caller News Foundation.
Malcolm explained that, though the right to possess a firearm in the home is generally secure, federal courts have been generally amicable towards restrictions on firearms in public places and on licensure issues, including and especially concealed carry. “Most of the circuits that have considered the issue, the Ninth Circuit being only the latest one, have concluded that there is no Second Amendment right to concealed carry,” he said.
He suggested that the ascendant liberal majority on the Supreme Court may not prioritize overturning the Heller and McDonald decisions, since the lower courts have so successfully limited their applicability.
“Whether Heller is overruled or not, or whether it is just distinguished, or if the Second Amendment is given a very cramped reading, you could largely accomplish the goals of the left without formally overruling Heller,” he said.