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Ninth Circuit gun rights win underscores need for SCOTUS carry ruling

SAF's Alan Gottlieb is hopeful that today's Ninth Circuit ruling may convince the Supreme Court to take a New Jersey case on the right to bear arms.
Dave Workman

Today’s ruling by a Ninth Circuit Court of Appeals panel in California that strikes down a requirement by San Diego County that concealed carry permit applicants must show “good cause” underscores the need for the Supreme Court of the United States (SCOTUS) to accept a New Jersey carry case filed by the Second Amendment Foundation, and discussed here earlier.

SAF founder and Executive Vice President Alan Gottlieb is “cautiously optimistic” that the Ninth Circuit ruling in Peruta v. San Diego, which is not a SAF case, will give the high court even more reason to accept the case of Drake v. Jerejian, which is a SAF case, joined by the Association of New Jersey Rifle & Pistol Clubs. Other gun rights authorities are weighing in here and here on the ruling. Other opinions are showing up at The Gun Wire.

Gottlieb noted to Examiner, “Timing is everything,” and in this case, the timing of this morning’s ruling coincides remarkably well with SAF’s petition for review of the New Jersey case by the Supreme Court.

In its divided ruling today, the Ninth Circuit noted, “…the majority of nineteenth century courts agreed that the Second Amendment right extended outside the home and included, at minimum, the right to carry an operable weapon in public for the purpose of lawful self-defense. Although some courts approved limitations on the manner of carry outside the home, none approved a total destruction of the right to carry in public.”

The ruling actually refers to the Drake case, and to other SAF cases, including Moore v. Madigan – which forced Illinois to adopt a carry statute – and Woolard v. Sheridan in Maryland. It also sets up a conflict which the high court must resolve between the circuits, which have split on the right to carry outside the home.

The Peruta case is not a SAF action, but SAF, along with other gun rights organizations, filed amicus briefs in support. Today’s majority ruling, written by Judge Diarmuid O’Scannlain, noted, “In California, the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a concealed-carry permit. And, in San Diego County, that option has been taken off the table.

“The San Diego County policy specifies that concern for ‘one’s personal safety alone’ does not satisfy the ‘good cause’ requirement for issuance of a permit,” the judge wrote. ‘Instead, an applicant must demonstrate that he suffers a unique risk of harm: he must show ‘a set of circumstances that distinguish [him] from the mainstream and cause[] him . . . to be placed in harm’s way.’ Given this requirement, the ‘typical’ responsible, law-abiding citizen in San Diego County cannot bear arms in public for self-defense; a typical citizen fearing for his “personal safety”—by definition—cannot ‘distinguish [himself] from the mainstream.’

“Although California law provides other specified exceptions from the general prohibition against public carry,” he wrote, “these do little to protect an individual’s right to bear arms in public for the lawful purpose of self-defense.”

“To be clear,” Judge O’Scannlain later added, “we are not holding that the Second Amendment requires the states to permit concealed carry. But the Second Amendment does require that the states permit some form of carry for self-defense outside the home.”

The ruling sides rather well with language in a brief submitted to the Supreme Court by 34 members of Congress supporting SAF’s request for review in the Drake case. In that brief, signed by one Senator and 33 Representatives and written by California attorney Bradley A. Benbrook, they argue:

“First, the Court should affirm that the Second Amendment secures a right to carry handguns outside the home for self-defense. The majority in Drake held that it does not, and upheld New Jersey’s onerous requirement that an applicant for a carry permit must show ‘justifiable need’ – ‘specific threats or previous attacks which demonstrate a special danger to the applicant’s life’ – a standard that bars nearly every law-abiding, responsible citizen from carrying a handgun anywhere outside the home. Two other circuits have refused to expressly decide the question.
The Seventh Circuit, by contrast, has squarely concluded that the Second Amendment does protect citizens’ rights to carry handguns outside the home for self-defense.

“Second, the Court should clarify the standard of review governing Second Amendment claims involving restrictions on the right of law-abiding adults to carry handguns outside the home. The Third Circuit’s so-called “intermediate scrutiny” analysis consisted of the very sort of vague interest-balancing and extreme deference to legislative ‘policy choices’ that Heller stated should not occur in resolving Second Amendment challenges. Even if First Amendment-style tiered scrutiny applies to Second Amendment claims outside the factual settings in Heller and McDonald, the Nation’s courts are deeply split on the application of such scrutiny. Drake stands out for its refusal to put the government to the burden of citing evidence in support of its restriction, and in refusing to consider whether the restriction burdens more Second Amendment conduct than is ‘reasonably necessary,’ all in favor of rubber-stamping the legislature’s policy judgment over the citizens’ right to keep and bear arms.

“Unfortunately, such second-class treatment of the Second Amendment pervades the lower courts…

As this column noted earlier today, gun rights advocates contend that SCOTUS needs to take a case that allows it to clearly define the meaning of “bearing” arms and set down parameters beyond which regulation of time, place and manner cannot extend.

It is important to note that Washington and Oregon both are in the Ninth Circuit, and this morning’s ruling just might amount to a bucket of cold water thrown on gun prohibitionists who might seek to erode concealed carry licensing statutes, while also seeking to ban open carry.


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