The Supreme Court's Next Gun Battle :: 01/20/2017

With minor exceptions, California bans the open carrying of firearms. State law allows the concealed carrying of a loaded handgun by those who pass a background check, take a training course, and demonstrate to their local sheriff or police chief that they have “good cause.”

The definition of “good cause” is left up to the local law enforcement officials authorized to issue the licenses. While most of these officials accept a stated desire for self-defense as good cause in and of itself, the sheriff of San Diego County has set a higher threshold. An applicant there must prove a particular need for carrying the concealed gun, like a documented threat or having obtained a restraining order against a specific individual. Under this standard, the sheriff’s office denies most applications.

The plaintiffs argue that given the ban on open carry — which is being challenged in a separate lawsuit filed last August in Federal District Court in Los Angeles — the San Diego sheriff’s restrictive policy on concealed carry means that as a practical matter, “the typical law-abiding resident cannot bear a handgun for self-defense outside the home at all.” The question is whether there is any such right.

Significantly, in ruling against the plaintiffs last June by a vote of 7 to 4, the United States Court of Appeals for the Ninth Circuit didn’t actually answer that question. That fact may deter the Supreme Court from hearing the appeal — or, depending on the justices’ appetite for a major gun case, it may prove irrelevant. The justices have the power to frame just about any question they want to answer. If they want to decide the core question of whether the Second Amendment gives the right to carry a gun, in some manner, any manner, outside the home — which is to say, if four justices think they can count on an eventual fifth vote for that proposition, then this will be the case to grant.

It would be an activist grant, but that’s nothing new; remember last winter when the court agreed to hear a challenge to President Obama’s deportation-deferral program and added the politically charged question, not addressed by the lower court, of whether the president had violated his constitutional duty to “take care” to enforce the law. (That case ended in a 4-4 tie, with the question — almost surely framed by Justice Scalia — left unanswered.)

In his majority opinion for the Ninth Circuit last June, Judge William A. Fletcher explained why the court wasn’t answering the broad question. Because the plaintiffs were complaining only about the San Diego sheriff’s approach to concealed carry and had not directly challenged the state’s open-carry ban, Judge Fletcher wrote, “we do not reach the question whether the Second Amendment protects some ability to carry firearms in public, such as open carry.” Rather, he said, “we reach only the question whether the Second Amendment protects, in any degree, the ability to carry concealed firearms in public.”

And he answered the question this way: “Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public.”

There’s a reason Mr. Clement and his clients are not simply claiming a free-standing right to carry a concealed weapon As Judge Fletcher pointed out, Justice Scalia’s opinion in Heller foreclosed that argument. In the Heller opinion, Justice Scalia wrote that “the right secured by the Second Amendment is not unlimited,” adding that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”

So Mr. Clement is left to argue more obliquely that it is the intersection of the open-carry ban and the high standard set by the San Diego sheriff for concealed carry that leaves his clients “in the constitutionally untenable position of having no valid outlet to exercise their constitutional right to bear arms for self-defense.” Self-defense is the “core component” of the Second Amendment right that the Heller decision announced, Mr. Clement argues, making gun possession for self-defense outside the home a necessary corollary to the right that Heller recognized. He adds: “After all, the Second Amendment secures a fundamental right to ‘the people,’ not just to whatever subset of the people a state or locality deems in particular need of that right.”

In California legal circles, the Peruta case looms large; it has been pending in one federal court or another for nearly eight years, a political lifetime. The case was intended to test the boundaries that Justice Scalia acknowledged in Heller: if the Second Amendment right is “not unlimited,” then what are its limits? Arriving at the Supreme Court at this moment of supreme uncertainty, the case seems likely to test the court’s limits as well.

https://www.nytimes.com/2017/01/19/opinion/the-supreme-courts-next-gun-battle.html?emc=eta1&_r=2