California Carry Restrictions Ruled Unconstitutional
But the wheels of justice are likely to turn slowly
Citizens have a right to bear arms outside the home for self-defense, says a three-judge panel of the Federal Court of Appeals for the 9th Circuit. They ruled that California’s restrictive system banning most open carry and severely restricting concealed carry is in violation of the Second Amendment. That’s good news, but Californians shouldn’t start strapping on their sidearms just yet. The ruling is narrowly focused on the specifics of the case, Peruta v. San Diego County, and any broader effects would take some time to filter down – if the decision stands. San Diego says they won’t appeal, but AG Kamala Harris, or any judge in the 9th Circuit, can, and probably will, call for an en banc hearing of a larger panel of 9th Circuit judges – most of whom are notoriously hostile to the Second Amendment. But the en banc hearing might never happen.
The Supreme Court has recently denied certiorari (i.e. refused to hear) in two such cases, but is currently reviewing a case out of New Jersey, Drake v. Jerejian, which challenges New Jersey’s almost impossible permitting process. Like California, New Jersey obliges applicants to prove “good cause” for “needing” to carry a firearm. Normal fear of attack is not considered “good cause.” The 3rd Circuit Court of Appeals ruled against Drake and it was appealed to the Supreme Court.
It is likely the 9th will put a “hold” on Peruta at least until the Supreme Court decides whether to hear Drake. If the Court decides to hear Drake – which is more likely since the decision in Peruta – the 9th would almost certainly put off any rehearing of Peruta until Drake is decided. If the Supreme Court decides not to take up Drake, then the 9th would move forward with an en banc hearing for Peruta and the case would probably be appealed to the Supreme Court.
Confused yet? Just wait, it gets more complicated.
There is another case in California, Richards v. Prieta, which addresses most of the same elements as Peruta and Drake. Richards was argued in front of the same 3-judge panel of the 9th on the same day that they heard Peruta, but they have yet to release an opinion on it. It is hard to imagine that the same two judges who ruled in favor of Peruta would issue an opinion in Richards that did not closely mirroring the Peruta opinion. The prime difference in Richards is that it is a bit broader than Peruta and, if anything, somewhat more appropriate for establishing a statewide precedent. The written opinion in Peruta is very detailed and argues very strongly for a minimally burdened “right to bear arms.” Whatever the Supreme Court’s next Second Amendment case, the Peruta opinion should be a significant point of influence.
The decision in Richards could come out any time and will almost surely face the same appeals and delays as Peruta. Having two favorable Second Amendment opinions out of the 9th increase pressure on the Supreme Court to take up the issue. There is already a split among the Circuit Courts. The 2nd, 3rd, and 4th Circuits have given states carte blanche on carry restrictions until the Supreme Court says otherwise. The 7th Circuit, and now the 9th, have ruled that the Heller and McDonald decisions already say the Second Amendment protects a right to arms beyond one’s front door. Such splits between the courts cause regional imbalances in the legal system and increase the likelihood of the Supreme Court taking up the issue.
While a split in the circuits is impetus for the Supreme Court to address an issue, they are under no legal obligation to do so. The 9 justices look at cases and vote on whether to take them up. The 4 “liberal” Justices are probably not inclined to hear any Second Amendment cases as long as they know they are outnumbered. Among the five “conservative” Justices who were in the majority on Heller and McDonald, there might be some disagreement about the timing of taking up a “bearing arms” case and, probably more particularly, which case to hear. The Justices have objectives they want to accomplish – or prevent – and they will often hold off on accepting cases with potential landmark issues until they find the case they think will be the best vehicle for their purposes.
At this point it is impossible to predict what will happen with any of these cases or the dozen or so others now working their way through the legal pipeline toward the Supreme Court, but it seems certain that the Court can’t put off the question of “bearing arms” much longer. In the meantime, supporters of the Second Amendment should pray for the health, safety, and resolve of the current members of the Court for at least the next three years. An Obama appointment to replace any of these justices could tilt the balance of the Court away from a favorable reading of the Second Amendment, and indeed, of much of the Constitution’s other limits on federal power.
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