California Appeals Court: Second Amendment Includes Right to Self Defense in Public
California has some of the toughest gun control laws in the country. Strict training, background checks and permitting requirements make it very difficult to purchase a firearm in the state. With more than 30 gun laws on the books, gun violence in the state has dropped by 56 percent since 1993, when the gun violence rate was 15 percent higher than the national average. The decrease in firearm violence surpasses the nationwide decrease of 29.5 percent. Today, most gun crimes in California involve illegal guns trafficked into the state.
The bans on military style weapons, high capacity magazines, and strict manufacturing requirements for safety designs on handguns, have been touted by gun-control advocates as an example of legislation that works. While gun control proponents have described the state as “oppressive” to the rights of gun owners, the laws have withstood numerous court challenges. That is, until now.
In 2012, California passed a law to prohibit openly carrying an unloaded handgun in public. The legislation was proposed by the Brady Campaign and supported by law enforcement amid rising tensions at the sight of handguns in public since no one could be sure the gun wasn’t loaded (it is also illegal to carry a loaded firearm in public). The law made it a misdemeanor to carry an unloaded handgun in public or transport one in a vehicle without a concealed carry permit.
It is the concealed carry law that has been successfully challenged.
In order to obtain a concealed carry permit, a gun owner must meet certain residency requirements, complete an acceptable course in firearms training, be of good moral character, and show good cause for needing to carry a concealed weapon. The state allows law enforcement departments of the individual counties in the state to determine if applicants meet the requirements. In San Diego County, gun owners sued over the “good cause” requirement.
Good cause means that an applicant has shown a clear and present danger to their person or family and that carrying a concealed weapon would mitigate that danger. Reasons would include situations where documented threats have occurred or for people who work in situations that they may find themselves threatened, such as carrying large sums of money as part of their job. Exercising your “Second Amendment right” isn’t considered good cause for a concealed permit, and you are allowed to protect yourself in your home, on private property, or as the owner of a business without one.
In February, the U.S. Ninth Circuit Court of Appeals ruled that the Second Amendment includes the right to carry a firearm in public.
The three judge panel vote was 2-1, with the two very conservative judges ruling against the ban. The judges said that states are not required to allow concealed carrying of handguns, but the “Second Amendment does require that the states permit some form of carry for self-defense outside the home.” By limiting the situations in which a good cause would be applicable, the judges determined that “the ‘typical’ responsible, law-abiding citizen in San Diego County cannot bear arms in public for self-defense.”
The two judges in the majority were appointed by former presidents Ronald Reagan and George W. Bush.
The panel’s decision directly conflicts with previous rulings, and possibly even with the Supreme Court’s ruling in Columbia v. Heller. While the Supreme Court has famously expanded the interpretation of the Second Amendment over the last several years, even its most conservative judges have said the right is not absolute. The Heller decision affirmed the right to own a handgun, but it was specifically related to protecting the home. In the majority opinion, Justice Antonin Scalia wrote: ”Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The opinion even pointed out that laws banning concealed carry were permissible.
While the lawsuit and subsequent ruling was specifically about San Diego County, the ruling potentially upends the state’s law, as well as Hawaii’s, which is also covered by the Ninth Circuit’s rulings. The State of California was not named as a party in the lawsuit. Nevertheless, Attorney General Kamala Harris announced on February 27, 2014 that the state would challenge the court’s ruling after San Diego County’s sheriff announced they would not appeal the panel’s decision.
In the meantime, applications for concealed permits have sky rocketed in neighboring conservative enclave of Orange County, as the local sheriff announced that they would process applications without the “good cause” requirement. In ten days, the sheriff’s office received more applications for permits than were issued in the entire previous year. The sheriff of Ventura County also announced they would accept applications in absence of good cause.
The three judge panel’s ruling is on hold pending further review by a full panel of the court.
Photo credit: Thinkstock