Federal Appeals Court Rejects California’s Concealed-Gun Law

Friday, February 14, 2014

California law gives counties the right to restrict concealed-gun permits to people who have a good reason to pack heat. On Thursday, a federal appellate court said the state can’t do that.

A three-judge panel of the U.S. Court of Appeals for the Ninth District ruled 2-1 (pdf) that restrictions put in place by San Diego County under the California law violated the Constitution’s Second Amendment by requiring that an applicant show “good cause” to carry a gun. They should pretty much only have to indicate they want a gun for protection, the court said.

“The right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense,” Judge Diarmuid O’Scannlain, a Reagan-appointee wrote. He was joined in his opinion by George W. Bush-appointee Judge Consuelo Callahan.

Writing in dissent, Judge Sidney Thomas pointed out that the majority's ruling “not only strikes down San Diego County's concealed carry policy, but upends the entire California firearm regulatory scheme.”

The two judges who carried the day are conservatives. Their ruling agrees with an appellate court decision on Illinois’ gun law, but conflicts with rulings in New York, New Jersey and Maryland. The issue is almost certainly headed to the U.S. Supreme Court for resolution, but will probably first be appealed to the full 11-judge Ninth District court.

The Supreme Court ruled in the 2008 landmark Heller v. District of Columbia that Americans can keep weapons in their home, but has not addressed carrying a weapon in public.

California is one of eight states that allow local governments to deny concealed-weapons permits. In San Diego, the county sheriff made the call to restrict permits to former law enforcement officials, people who work as security guards, judges, business owners handling large amounts of cash and victims of domestic violence or stalking, according to U-T San Diego. Residents must also show “good moral character” and complete a weapons training course.

The appellate court reinstated a lawsuit that was filed in 2009 and kicked it back to the U.S. District Court in San Diego, which originally rejected it. U.S. District Judge Irma Gonzalez had ruled that the permitting process legally served the substantial interest of the state and county in maintaining public safety.

The court’s main argument was that an individual’s concern about personal safety alone should have been deemed sufficient “good cause” to be granted a carrying permit. The majority ruling likened carrying a gun to free speech. “It is as though San Diego County banned all political speech, but exempted from this restriction particular people (like current or former political figures), particular places (like private property), and particular situations (like the week before an election),” O’Scannlain wrote. “Although these exceptions might preserve small pockets of freedom, they would do little to prevent destruction of the right to free speech as a whole.”

Judge Thomas thought the majority was straining to find justification for its decision where no justification existed. He made a reference to the Heller case when he noted that the Supreme Court justices explicitly said that restrictions on carrying concealed weapons were “presumptively lawful” and shouldn’t be tossed unless they present a clearly unreasonable burden.

“A careful examination of the narrow questions before us can only lead to the conclusion that San Diego County’s ‘good cause’ policy falls squarely within the Supreme Court's definition of ‘presumptively lawful regulatory measures,’ ” Thomas wrote. “There is no need to reach any other issue presented in the case.”

–Ken Broder


To Learn More:

Court Strikes California Law Limiting Concealed Weapons (by Bob Egelko, San Francisco Chronicle)

Self-Defense Needs Justify Gun Permits in San Diego, Court Says (by Tim Hull, Courthouse News Service)

Sheriff’s Gun Permit Policies Ruled Unconstitutional (by Kristina Davis, U-T San Diego)

Court Tosses California's Concealed Weapons Rules (by Paul Elias, Associated Press)

San Diego County Gun Law Violates 2nd Amendment, Appeals Court Rules (by Maura Dolan, Los Angeles Times)

California Rifle and Pistol Association Foundation et al v. County of San Diego (U.S. Court of Appeals for the Ninth Circuit) (pdf)

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