Op-Ed: California: One Step Closer to Shall Issue!

Federal Appeals Court Denies California Attorney General’s Bid to Overturn NRA Supported Legal Victory in Right to Carry Case

A monumental February 14, 2014 ruling from the Ninth Circuit Court of Appeals in the NRA sponsored case of Peruta v. San Diego County found that the San Diego County Sheriff’s policy of refusing to issue licenses to carry firearms in public unless an applicant could demonstrate a special need beyond the right of self-defense was an unconstitutional violation of the Second Amendment. NRA News has produced a great video and America’s First Freedom magazine also published an enlightening article about the case.

The San Diego Sheriff decided not to appeal the ruling. But in response to this tremendous pro-Second Amendment decision, California Attorney General Kamala Harris and some gun ban advocacy groups asked the court to let them into the Peruta case as “parties” so they could try to get the three judge panel decision overturned by an 11 judge “en banc” panel.

[On November 12,] the Ninth Circuit rejected those requests. In a relatively lengthy published order, the Court explained why it exercised its discretion to deny the Attorney General’s and gun control groups’ eleventh hour attempt to enter as untimely. The Court also importantly held that the Attorney General is not entitled to intervene because the Peruta case does not implicate the constitutionality of any state statute, but rather only challenges San Diego’s specific policy for issuing carry licenses.

The California Attorney General’s next action will determine whether the Peruta case ends here. She could seek review of the denial of her request to intervene in the appeal by an en banc panel of the Ninth Circuit or by the U.S. Supreme Court. If Attorney General Harris is successful in overturning the Court’s order and is allowed to intervene in the Peruta case, the Ninth Circuit Court judges will then vote on whether to re-hear the case en banc. Should they decide to do so, the court will either uphold the current decision supporting the Second Amendment or overturn it. They could, however, simply vote not to rehear the case, allowing the three judge panel decision to stand. If the Attorney General successfully appeals for intervention, the attorneys for Ed Peruta and the other plaintiffs will be asking the judges to do just that. Whatever the Ninth Circuit ends up doing in such a circumstance, either side would almost certainly petition a loss to the U.S. Supreme Court. NRA attorneys have prepared and posted an explanation of the en banc review process online for a description of the various machinations in this process.

There is yet another twist to this tale. Even if the Attorney General does nothing and the Peruta decision stands, pending requests for en banc review in similar cases that benefitted from the work done in the Peruta case could potentially imperil the Peruta ruling. Both the County of Yolo, California, in the case of Richards v. Yolo County, and the State of Hawaii, in the case of Baker v. Kealoha, have already petitioned for en banc review of the Ninth Circuit’s rulings in those cases essentially saying they lose because of Peruta. If those petitions are granted, the Peruta opinion will be in jeopardy of being overturned, just as if the Peruta opinion itself was being reviewed by the Court.

Supreme Court Bound?

The Peruta decision creates an opportunity for the U.S. Supreme Court to settle some unresolved Second Amendment issues that desperately need resolving. The Seventh Circuit Court of Appeals has agreed with the principles, though not the specific details, of the Peruta ruling in another NRA-supported case of Shepard v. Madigan and the related case of Moore v. Madigan. In these cases challenging Illinois' previous policy of not allowing citizens to bear arms in public, the Seventh Circuit Court held that prohibiting any form of carrying arms in public was unconstitutional. Rather than risk having that ruling confirmed, Illinois did not seek Supreme Court review. Meanwhile, three other Circuits have gone the opposite direction and held that there is no right to bear arms outside the home: Kachalsky v. Cacace in the Second Circuit (New York), Drake v. Filko in the Third Circuit (New Jersey) and Woollard v. Gallagher in the Fourth Circuit (Maryland). The Supreme Court was asked to review each of those cases, but declined to do so. With this split of opinions among the federal Circuits, the U.S. Supreme Court could take the Peruta case to resolve these critical Second Amendment issues, but the California Attorney General would need to act first to make that possible.

A Court Decision Already Paying Dividends

The most common method used nationally by states and localities to selectively deny a person their Second Amendment right to carry a firearm for self-defense is to create a subjective licensing prerequisite. Requiring a demonstration of “good cause” or its equivalent before a license will be issued is such a method, because, if you have to show “good cause,” then you can be forced to prove a special “need” to carry a firearm. This creates a subjective system prone to political cronyism and corruption, and that’s the way California’s “good cause” system has been working for years. Reform is long overdue.

As a result of the Peruta decision, several California counties that had policies similar to San Diego’s have changed those policies from a restrictive “good cause” standard that few could meet, to one that accepts general self-defense as “good cause,” which most anyone can meet. Orange and Ventura counties are among the California jurisdictions that have changed their ways since the Peruta decision came down. Previously, applicants had to show proof of specific threats, such as a police report or a protective order, to prove they were in immediate danger before they could get a license. Now merely asserting a desire for “self-defense” is generally accepted as “good-cause” for getting a license in those counties.

If the Peruta decision remains unchanged, all of the states and territories in the Ninth Circuit would also have to review their license issuance policies, and revise them to conform to the Ninth Circuit’s Peruta mandate. The Ninth Circuit includes Alaska and Arizona (“constitutional carry” states), Idaho, Montana, Nevada, Oregon and Washington (“shall issue” states). It also includes Guam, which has already changed its policy in light of Peruta. And it includes California and Hawaii, the outliers. These two states have laws making concealed carry a privilege that can be withheld by local governments, instead of a right.
We need to hold onto this great court victory so that these policies go into effect throughout California and the entire Ninth Circuit!

But the Peruta decision’s persuasive influence is not limited to the Ninth Circuit territories and states. Recently, in the case of Palmer v. District of Columbia, a federal court relied heavily on the Peruta decision as precedent for its opinion striking down DC’s total ban on the public carrying of firearms. Significantly, the ban at issue in Palmer was more extreme than the California policy challenged in the Peruta case. Nevertheless, the Palmer court cited to Peruta extensively, suggesting that the D.C. court is warning D.C. lawmakers that they should not adopt a California style “good cause” licensing scheme, because it will face the same fate as the one struck down in Peruta. Without the Peruta opinion as precedent, it is doubtful that the DC court would have gone so far.

Help NRA to Help You

You can assist in the fight to defend gun owners’ rights in California courts by donating to the NRA Legal Action Project today. For a summary of some of the many actions the NRA has taken on behalf of California gun owners, including the tremendous recent victory in the Peruta case click here. Second Amendment supporters should be careful about supporting litigation efforts promised by other individuals and groups without access to the necessary funding, relationships, firearm experts and experienced lawyers on the NRA’s national legal team. The NRA’s team of highly regarded civil rights attorneys and scholars has the resources, skill and expertise to maximize the potential for victory.

© 2014 National Rifle Association of America. Institute for Legislative Action. This may be reproduced. It may not be reproduced for commercial purposes.