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California Appeals Court: Second Amendment Includes Right to Self Defense in Public

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.

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Photo credit: Thinkstock

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74 comments

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5:33PM PST on Mar 4, 2014

ty

7:10AM PST on Mar 4, 2014

As far as I'm concerned, the common sense "gun regulation" solution is actually fourfold based on treating a gun like a car.
1. License the "driver." All firearm owners would be required to demonstrate proficiency with both the laws governing the weapon and handling the weapon itself. This would be done by requiring 40 hours of classroom time and 40 hours of range time before being licensed to carry a firearm outside of a training facility. Being a member of the military or National Guard would reduce those times to 8 hours of classroom (refresh on the civilian laws) and 8 hours of range.
2. License the weapon. Require a national registry of ballistics traces for each weapon to be kept in a database, administered by the NRA, searchable only with a valid warrant.
3. Require both to be insured.
4. Encourage all gun owners to become and stay members of the National Guard (the modern version of the militia.)

7:31PM PST on Mar 3, 2014

wow, a right to play cowboy in a crowd! hmmmmmmmmmm?

6:39PM PST on Mar 2, 2014

Wow, Wanda. I went to drop you a note telling you that I had answered you only to learn that you had blocked me, presumably over my doing the same thing on a recent death penalty discussion, despite us exchanging green stars and jokes two weeks ago. Aren't you the thin skinned little coward? Typical conservative, terrified of people who challenge their emotionally based belief systems with facts.

6:14PM PST on Mar 2, 2014

Well, Wanda, it appears that I answered you mid post. Your first post seemed to indicate that you were claiming that you'd been prevented from carrying a concealed weapon, though your oft noted imprecision with the rules of English grammar may have been at fault. I take it my sympathy was unneeded, as you got to blow him away. If you actually killed someone, no matter how heinous, and are here bragging about it, I also withdraw my assertion that you are to be trusted with firearms.

5:46PM PST on Mar 2, 2014

Continued from below: One of the reasons NY's laws are effective is because CT and NJ also have tough gun laws - strict enforcement is the other. Nobody goes to jail in Chicago for a stand alone gun violation - if they did, the city would be a lot safer. Back in the 90s, 80% of the handguns recovered at crime scenes in NYC were traced to legal dealers in VA, which is an open sewer when it comes to guns. Embarrassed, VA legislators changed the law so that you couldn't buy more than one handgun a month; last year, they changed it back. If it has the effect of reopening the gun running pipe line between the two states, I hope that my AG sues VA for the costs - police overtime, incarceration and medical - that result.

Oh, and don't bother to lecture me about being a racist for specifically noting that white people aren't shooting one another with regularity here, because everyone with a functioning brain knows that race is the subtext running through all of the pro gun arguments, so pointing out that white folks are actually safer when they are forced to exercise a little thought and take a little time before buying a weapon is germain to any discussion of gun laws.

5:09PM PST on Mar 2, 2014

Wanda: I'm sorry for your awful experience, which I share. Eventually, it really does get better, though it may take more than a decade to regain one's peace of mind; I sincerely hope you are a faster healer than I was. Just so you'll know, I've also been held up at gun point on several occasions, grew up in an NRA household, and made sharpshooter in the Army. I am not aniti gun. I am anti lax gun laws and anti hypocrisy. You live in a shall issue state, GA, when it comes to cc permits, so the reason you didn't have one at 19 had nothing to do with the law. I have no objection to you having a cc permit; I'm quite sure you're a responsible gun owner, as are the vast majority of cc holders.

When I moved back to NY after a decade in TX, one of the surprising benefits was the dearth of stories involving white toddlers shot by their kindergardener siblings and the heartbroken white parent being interviewed over the silly, drunken fight between her two sons that ended with one of them in jail and the other in the ground. We have tough gun laws here; we make people jump through some hoops, with the result that most of our gun owners are responsible and the nation's biggest city is safer than the average mid sized town elsewhere. The arms makers don't support that for financial reasons, but you should.

4:17PM PST on Mar 2, 2014

I look forward to a time when human beings learn to live together in peace and harmony.

4:09PM PST on Mar 2, 2014

continued:
Ammunition was too precious to waste. My point is First came speech/talk and then came guns in that order of importance. The Right is interpretation evolved to fit the New Age, but when someone holds firm to Constitutional Right, guns have no place as we now control them. Just my look at it because the irresponsible are not covered by the Constitution.

4:07PM PST on Mar 2, 2014

Wanda B.:
The very First Amendment written reads:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances".
Then the Second Amendment which was a conflict even then that read two ways:
One version was passed by the Congress and preserved in the National Archives:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Second version as ratified by the States and authenticated by Thomas Jefferson, then-Secretary of State:
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
The only difference a comma for confusion, but to me clearly about the right to keep and bear arms as a militia. That is in no way the case any longer with evolution of our country, and I feel with good reason. Put the guns in the hands of professionals as militia only, or of course law enforcement as you well know. I feel you, having been there should have the responsibility to own and bear arms, but only as a professional paid to do so. Also, guns when the Constitution was written, were used for militia, for hunting food, and if for sport at targets in controlled environment. Ammunition was too prec

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