More on the reasoning of the Ninth Circuit’s right-to-carry-a-gun opinion

As I noted earlier, today’s Ninth Circuit decision in Peruta v. County of San Diego (9th Cir. Feb. 13, 2014), concludes that California’s broad limits on both open and concealed carry of loaded guns “impermissibly infringe[] on the Second Amendment right to bear arms in lawful self-defense.” I’ve now finished reading the opinions, and had a few general thoughts.

1. California law essentially leaves most law-abiding adults without the ability to carry guns in public for effective self-defense, period. People are barred from carrying guns either openly or concealed. It is this broad policy that the majority holds unconstitutional.

In D.C. v. Heller, the Supreme Court strongly suggested that (1) the right to “bear” arms means the right to carry them, but that (2) bans on concealed carry are constitutional:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, 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. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Thus, if California law had banned concealed carry but allowed open carry (which some states have historically done), that wouldn’t have violated the Second Amendment. And if California law had banned open carry but allowed concealed carry (perhaps requiring a license that pretty much all law-abiding adults could get), that too might well have been constitutional, on the theory that it still left people free to carry guns, but just regulated the “manner” of carrying.

But, as the Ninth Circuit majority points out, a general prohibition on all carrying of guns in public is more than just a way of regulating the manner of carrying:

A flat-out ban on concealed carry in a jurisdiction permitting open carry may or may not infringe the Second Amendment right — the passage from Heller clearly bears on that issue, which we need not decide. But whether a state restriction on both concealed and open carry overreaches is a different matter. To that question, Heller itself furnishes no explicit answer. But the three authorities it cites for its statement on concealed-carry laws do.

Indeed, the Ninth Circuit majority argues, pretty much all the 19th-century cases that accepted the view that the Second Amendment secures an individual right to keep and bear arms in self-defense also took the view that the right includes a right to carry in some manner. (Those 19th-century cases that rejected any right to carry, the majority argues, took the view that the right is collective, or the view that it doesn’t include self-defense purposes — views that the Supreme Court rejected in Heller.)

I think the Ninth Circuit majority’s analysis is correct on this, and the dissent’s is mistaken. The dissent keeps stressing that the case should be about whether the California ban on concealed carry is constitutional, and that Heller says that the concealed carry ban is indeed constitutional. But the California ban on concealed carry is part of a general scheme that bans the great bulk of all carrying in public for self-defense (unless one has a permit that the police may choose not to grant). It is this general scheme that violates the Second Amendment, even if a ban on concealed carry that left people free to carry openly would not do so.

2. So the Second Amendment secures a right to carry — but may even a broad ban on such carrying still be constitutional on the grounds that it passes “intermediate scrutiny,” in the sense of being substantially related to an important government interest? Some courts have upheld such broad bans on this theory. But the Ninth Circuit says no, and I think correctly so:

[I]f self-defense outside the home is part of the core right to “bear arms” and the California regulatory scheme prohibits the exercise of that right, no amount of interest-balancing under a heightened form of means-ends scrutiny can justify San Diego’s policy. See Heller, 554 U.S. at 634 (“The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon.”)….

A law effecting a “destruction of the right” rather than merely burdening it is, after all, an infringement under any light….

It is the rare law that “destroys” the right, requiring Heller-style per se invalidation, but the Court has made perfectly clear that a ban on handguns in the home is not the only act of its kind. We quote the relevant paragraph in full, telling case citations included:

Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).

3. The court also dismissed the argument that the California scheme is saved by the fact that people might get concealed carry licenses if they show “good cause” to the satisfaction of the police department, or by the fact that there are some other exceptions:

[T]he California scheme does not prevent every person from bearing arms outside the home in every circumstance. But the fact that a small group of people have the ability to exercise their right to bear arms does not end our inquiry. Because the Second Amendment “confer[s] an individual right to keep and bear arms,” we must assess whether the California scheme deprives any individual of
his constitutional rights. Thus, the question is not whether the California scheme (in light of San Diego County’s policy) allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding “no.”

That too strikes me as right. If there is no individual right to carry guns in self-defense, then a ban on such carrying is just fine. But if there is such a right, it is an individual right, and a ban on most people’s exercise of this right can’t be justified on the grounds that some people are allowed to exercise it.

4. Finally, note that nothing in the opinion means that narrower regulations of gun carrying are unconstitutional. “Shall-issue” schemes that require a license to carry, but let pretty much all law-abiding adults get such a license, would likely be upheld. The same is true for restrictions on carrying in particular places, such as schools or government buildings. But a broad ban on all gun carrying in public, the court held, violates the Second Amendment.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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