Fed­eral court up­holds ‘good cause’ gun lim­its

Judges let sher­iffs de­cide on per­mits

The Washington Times Weekly - - National - BY AN­DREA NOBLE

Amer­i­cans have no con­sti­tu­tional right to carry con­cealed firearms out­side the home, a fed­eral ap­pel­late court ruled last week in a de­ci­sion that im­me­di­ately came un­der sharp crit­i­cism from Sec­ond Amend­ment ad­vo­cates.

In a closely watched en banc rul­ing, the San Francisco-based 9th U.S. Circuit Court of Ap­peals up­held a Cal­i­for­nia law that re­quires a gun owner to show “good cause” in or­der to ob­tain a per­mit to carry a con­cealed hand­gun in pub­lic. What con­sti­tutes good cause is left up to county sher­iffs, and the 7-4 de­ci­sion over­turns a rul­ing by a three-judge panel that said the re­quire­ments adopted by sher­iffs in San Diego and Yolo coun­ties were un­con­sti­tu­tional.

“We hold that the Sec­ond Amend­ment does not pre­serve or pro­tect a right of a mem­ber of the gen­eral pub­lic to carry con­cealed firearms in pub­lic,” Judge Wil­liam A. Fletcher wrote in a 52-page opin­ion for the ma­jor­ity.

The plain­tiffs im­me­di­ately an­nounced plans to ap­peal to the Supreme Court, but the death of Jus­tice An­tonin Scalia has raised ques­tions of how the eight-judge high court will deal with hot-but­ton gun cases.

The Cal­i­for­nia Ri­fle & Pis­tol As­so­ci­a­tion said the 9th Circuit de­ci­sion was out of touch with main­stream Amer­ica.

“This de­ci­sion will leave good peo­ple de­fense­less, as it com­pletely ig­nores the fact that law-abid­ing Cal­i­for­ni­ans who re­side in coun­ties with hos­tile sher­iffs will now have no means to carry a firearm out­side the home for per­sonal pro­tec­tion,” the group said in a state­ment.

But in the ab­sence of a blan­ket Sec­ond Amend­ment right, leg­is­la­tors have the power to pass “any pro­hi­bi­tion or re­stric­tion a state may choose” on the car­ry­ing of con­cealed guns, said Judge Fletcher, an ap­pointee of Pres­i­dent Clin­ton.

Fed­eral ap­peals courts have up­held sim­i­lar re­stric­tive “good rea­son” re­quire­ments in New Jersey, New York and Mary­land.

An on­go­ing case is chal­leng­ing a sim­i­lar re­quire­ment in the District of Columbia. A three-judge panel of the U.S. Court of Ap­peals for the D.C. Circuit stayed a low­er­court rul­ing that banned the city from en­forc­ing its re­quire­ments.

Dis­sent­ing 9th Circuit judges were sharply crit­i­cal of the ma­jor­ity’s de­ci­sion to ad­dress only the con­cealed-carry re­stric­tions. Judge Con­suelo M. Cal­la­han wrote that the lim­i­ta­tions set up and knocked down “an elab­o­rate straw ar­gu­ment.”

The county poli­cies in Cal­i­for­nia for those ap­ply­ing for con­cealed-carry li­censes “are tan­ta­mount to com­plete bans on the Sec­ond Amend­ment right to bear arms out­side the home for self-de­fense, and are there­fore un­con­sti­tu­tional,” wrote Judge Cal­la­han, who was ap­pointed by Pres­i­dent Ge­orge W. Bush.

Among the plain­tiffs in the case are Ed­ward Peruta of San Diego County and Adam Richards of Yolo County, who sought to carry con­cealed firearms for self-de­fense but were de­nied con­cealed-carry li­censes in 2009 af­ter they were un­able to show good cause. Their chal­lenge was backed by ma­jor gun rights or­ga­ni­za­tions and op­posed by na­tional gun con­trol ad­vo­cates.

Gun con­trol ad­vo­cates cel­e­brate

Af­ter a three-judge panel sided with the plain­tiffs, Cal­i­for­nia At­tor­ney Gen­eral Ka­mala Har­ris asked the full court for re­con­sid­er­a­tion of the case.

Ms. Har­ris and gun con­trol ad­vo­cates, in­clud­ing Every­town for Gun Safety, her­alded the rul­ing as a pub­lic safety vic­tory.

“The dev­as­tat­ing im­pact gun vi­o­lence has on our com­mu­ni­ties un­der­scores the need for com­mon sense gun safety laws,” said Ms. Har­ris, a Demo­crat who this week earned a spot in the runoff elec­tion bal­lot for an open U.S. Sen­ate seat. “The rul­ing en­sures that local law en­force­ment lead­ers have the tools they need to pro­tect pub­lic safety by de­ter­min­ing who can carry loaded, con­cealed weapons in our com­mu­ni­ties.”

An at­tor­ney for the plain­tiffs con­firmed that he is con­sid­er­ing an ap­peal to the Supreme Court but in­di­cated that fu­ture chal­lenges in the state might need to fo­cus on the right to carry a firearm in the open rather than in a con­cealed man­ner.

The rul­ing “specif­i­cally avoided an­swer­ing the crit­i­cal le­gal ques­tion of whether, if con­cealed carry is pro­hib­ited, some form of open carry of firearms must be al­lowed,” said lawyer Chuck Michel. “Cal­i­for­nia law bans open carry, so the con­sti­tu­tion­al­ity of that ban will now have to be tested.”

It was un­clear whether the plain­tiffs might try to launch that par­tic­u­lar chal­lenge, but Mr. Peruta, a for­mer po­lice of­fi­cer, told Mother Jones that in the wake of the de­ci­sion he in­tended to carry his firearm openly.

“I have per­mits to carry, and from this day for­ward I will be car­ry­ing openly,” he said.

The 9th Circuit cov­ers Alaska, Ari­zona, Cal­i­for­nia, Hawaii, Idaho, Mon­tana, Ne­vada, Ore­gon and Wash­ing­ton.

Al­though gun rights sup­port­ers may be look­ing to the Supreme Court for help, Ilya Shapiro, a con­sti­tu­tional law an­a­lyst at the Cato In­sti­tute, notes that the jus­tices have shown lit­tle in­ter­est in tak­ing up gun cases.

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