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Ninth Circuit’s Peruta ruling reveals faults with other circuit opinions

The Supreme Court, led by Chief Justice John Roberts (left), may soon have to rule on bearing arms outside the home.
The Supreme Court, led by Chief Justice John Roberts (left), may soon have to rule on bearing arms outside the home.
Chip Somodevilla/Getty Images

Yesterday’s ruling by the Ninth Circuit Court affirming the right of citizens to be armed outside their homes for self-defense faults rulings on carry permits by three other court circuits and clearly suggests to gun rights advocates the time has arrived for the Supreme Court of the United States to settle this debate, and do it decisively.

The majority opinion was written by Judge Diarmuid O’Scannlain. Careful reading suggests that he was not merely laying the groundwork for SCOTUS review in Drake v. Jerejian, the Second Amendment Foundation’s case now seeking high court review, he essentially throws down the gauntlet.

The Peruta case, decided yesterday, was funded by the National Rifle Association and, if one reads the gun rights forums, it was money well spent. NRA and SAF have been playing an interesting game of legal chess, sometimes winning, sometimes losing, but invariably moving pieces closer toward judicial checkmate that will ultimately restore what gun advocates believe have been serious erosions of the Second Amendment.

Drake v. Jerejian is SAF’s third challenge of arbitrary carry permit regimes, this one aimed at New Jersey, where getting a carry permit is nearly impossible. The other two cases were Maryland’s Woollard v. Sheridan and New York’s Kachalsky v. Cacace. For whatever reasons, the high court declined to review those cases.

Now, however, with Drake at their doorstep and Peruta dumped in their laps, many are hoping that the nine justices on the Roberts court step up to the plate.

Writing in the Los Angeles Times – which covered the ruling while the Seattle Times and on-line Seattle this morning appear to have overlooked the news in favor a P-I piece on legal jaywalking and the Seattle Times covered Facebook’s addition of more gender identity choices – reporter Michael McGough noted, “The 9th Circuit’s decision will displease advocates of gun control. But their real quarrel is with the Supreme Court’s belated discovery that the 2nd Amendment protects an individual right, not just the ability of states to form ‘well-regulated militias.’ Once that principle was established, it was clear, for good or ill, that gun-control regulations would have to be carefully drawn.”

The answer to that lament may be found on Page 64 of the Ninth Circuit’s majority opinion, where the judge essentially dismissed anti-gun rights rulings in the three SAF cases mentioned above.

“We are unpersuaded by the decisions of the Second, Third, and Fourth Circuits for several reasons,” Judge O’Scainnlain wrote. “First, contrary to the approach in Heller, all three courts declined to undertake a complete historical analysis of the scope and nature of the Second Amendment right outside the home.”

All of those cases challenge the arbitrary nature of handgun permit denials, the issue at the heart of the Peruta case decided yesterday.

“And with these cases off the table,” the Peruta opinion added two pages later, “the remaining cases speak with one voice: states may not destroy the right to bear arms in public under the guise of regulating it.”

On Page 68, Judge O’Scannlain continued his critique, noting, “By evading an in-depth analysis of history and tradition, the Second, Third, and Fourth Circuits missed a crucial piece of the Second Amendment analysis. They failed to comprehend that carrying weapons in public for the lawful purpose of self-defense is a central component of the right to bear arms.”

“And further,” he added, “they failed to comprehend that regulations on the right, although permissible to an extent, could not go so far as to enjoin completely a responsible, law-abiding citizen’s right to carry in public for self-defense. Such regulations affecting a destruction of the right to bear arms, just like regulations that affect a destruction of the right to keep arms, cannot be sustained under any standard of scrutiny.”

On Page 75, Judge O’Scannlain lowers the boom: “In light of the states’ failure to demonstrate sufficient narrow tailoring in Drake, Woollard, and Kachalsky, the gun regulations at issue in those cases should have been struck down even under intermediate scrutiny.”

For many gun rights activists, there is but one standard of scrutiny where the right to keep and bear arms is concerned. It is found in the final four words of the Second Amendment, which say the right “shall not be infringed.”

See also:

Time for SCOTUS to define ‘bearing’ arms, and state limits?

Ninth Circuit gun rights win underscores need for SCOTUS carry ruling


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