The 9th Circuit in Peruta v. San Diego upheld longstanding precedent that the concealed carrying of firearms may be prohibited. All 11 judges of the en banc court agreed bearing arms that are concealed is not, in itself, part of the Second Amendment right as that right has been traditionally understood. To the majority of seven judges, this was the only legal issue. According to the the four dissenters, the full legal context should have been considered.
Although there is some doctrinal unanimity in Peruta, there is also disagreement about judicial respect for the right to bear arms.
In 2013, a 2-1 panel of the 9th Circuit ruled that the San Diego sheriff was unconstitutionally applying California’s concealed carry licensing statute. The statute requires that the sheriff only issue permits to adults who passed a particular background check, certain safety training and who have “good moral character.” No one disputed that the plaintiffs met all of these requirements.
The statute further says that the applicant must have a “good cause” for requesting the permit. San Diego and Yolo counties contended that wishing to lawfully exercise the constitutional right to bear arms was not a good enough. A 2-1 panel decision held that denying carry permits to almost all citizens was unconstitutional. Judge Thomas dissented. Shortly after he became chief judge of the 9th Circuit, the petition for rehearing en banc was granted.
I’ve long been involved in Peruta. In the en banc, Dan Peterson and I submitted an amicus brief on behalf of the national organization of police trainers, the International Law Enforcement Educators & Trainers Association (ILEETA). The brief presented empirical evidence about licensed handgun carry. Before the three-judge panel, ILEETA addressed the (later-changed) California statute that allowed open carry only if the the firearm is unloaded. The brief argued that that is impractical, and supplied demonstration videos by police trainers. Loading a firearm takes at least a few seconds, but criminal attacks can happen faster. In the District Court, my amicus brief for the Center for Constitutional Jurisprudence, Doctors for Responsible Gun Ownership, the Law Enforcement Alliance of America, and the Independence Institute argued that Heller and McDonald recognize the right to bear arms.
The lead lawyer in Peruta was Chuck Michel of Long Beach, Calif. Peruta was decided along with a similar case, Richards v. Yolo, which had been brought by Alan Gura, the winning lawyer in District of Columbia v. Heller and McDonald v. Chicago. The case was argued by Paul Clement and Alan Gura (for plaintiffs) and by John A. Whitesides (for defendants) and Edward C. DuMont (for en-banc-intervenor California Attorney General Kamala D. Harris).
Concealed carry may be prohibited
All 11 judges agreed that since the 1840s, American courts have interpreted the Second Amendment as allowing laws against the concealed carrying of arms. Heller itself said so, with approval. The majority opinion marshaled much precedent and scholarship in support of this point. Among the many sources cited was my article “The Second Amendment in the Nineteenth Century,” 1998 BYU Law Review 1359.
As the majority accurately stated, New Jersey was first to enact a ban on concealed carry, in 1686. Four centuries later, in 1966, New Jersey prohibited open carry. The enormous temporal gap illustrates the difference between concealed carry and open carry throughout most of American history.
No colony followed New Jersey. Nor did any state, until about three decades after the Second Amendment was ratified. The concealed carry ban in the new state of Kentucky was soon ruled unconstitutional in Bliss v. Commonwealth (Ky. 1822). But as the Peruta majority accurately explicates, from 1849 onward, the rule was that concealed carry could be prohibited or restricted. Southern states were the first to enact concealed carry bans. Perhaps they were attempting to prevent dueling. The Southern laws about concealed carry were probably not racially motivated; separate laws of the slave states affirmed banning or restricting guns for slaves, as well as for free persons of color. (For slave state cases on arms possession by people of color, see Kopel, “The First Century of Right to Arms Litigation,” Georgetown Journal of Law & Public Policy (2016, forthcoming).)
The majority concluded the historical litany, “Finally, and perhaps most importantly, in Robertson v. Baldwin, 165 U.S. 275 (1897), the United States Supreme Court made clear that it, too, understood the Second Amendment as not protecting the right to carry a concealed weapon.” That case, with involved a merchant seaman and the 13th Amendment, said that all of the Bill of Rights, “from time immemorial,” had “been subject to certain well-recognized exceptions, arising from the necessities of the case.” For example, “the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons.”
The 9th Circuit joined the 10th Circuit in holding that the Second Amendment does not include the right to carry concealed arms. Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013).
The four Peruta dissenters did not disagree with the specific doctrinal point about concealed carry. Indeed, Judge Smith’s dissent pointed out that the majority’s compilation of precedents on concealed carry was unnecessary. “If the issue before us is truly whether California can, in isolation, prohibit concealed carry, a simple memorandum disposition citing to Heller would be sufficient. A formal opinion, much less the gathering of our en banc panel, would not be necessary to answer the issue framed by the majority.”
Rather, the dissenters pointed out that a recently-enacted California statute prohibits open carry (replacing a former statute allowing unloaded open carry). According to the main dissent, by Judge Callahan, the text of the Second Amendment guarantees the right to “bear arms.” Heller and McDonald said so too. And so did the precedents which recognized the individual Second Amendment right in the course of upholding concealed carry bans. The majority opinion does not disagree.
The district courts had ruled that California’s then-current system of allowing unlicensed and unloaded open carry was constitutionally sufficient. But by the time the case got to the Ninth Circuit, the California legislature had enacted a new statute which generally outlawed open carry too.
According to the Peruta dissenters, because the Second Amendment guarantees the right to bear arms (while allowing legislative choice about open vs. concealed), Mr. Peruta and the other plaintiffs were entitled to concealed carry permits. The majority retorted that the solution to an infringement of X constitutional right is not to give the plaintiffs Y, which is not a constitutional right.
The dissent disagreed with this formulation. First of all, the Supreme Court’s decisions show that a court should first define a right at a high level of generality. For example, in Lawrence v. Texas (2003), the Supreme Court did not ask where two men have a right to engage in anal sex. Rather, the question was whether the government can criminalize intimate relations among consenting adults. Similarly, the issue in Peruta was not concealment, but rather the right to bear arms.
According to the dissenters, the Second Amendment expressly guarantees the right to bear arms; legislatures may regulate but not prohibit the right. So in the 19th-century cases, the legislature could choose to ban concealed carry while not even requiring a permit for open carry. The dissenters wrote that today, legislatures ought to allowed to reverse that preference: to restrict open carry, while allowing concealed carry under a fair and reasonable licensing system. (Citing Eugene Volokh, “Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and A Research Agenda,” 56 UCLA L. Rev. 1443 (2009).)
One reason to prefer concealed carry today might be to avoid the waste of police resources caused by people who have an anxiety disorder about guns and who call 911 because they see someone lawfully carrying openly. The medical term for anxiety disorders about firearms is “hoplophobia.” Ninan & Dunlop, Contemporary Diagnosis and Management of Anxiety Disorders (2006). Of course there are many people who dislike guns, spiders, snakes, etc., without the dislike rising to the level of a phobia.
The logic of the majority opinion would eventually force California to broadly allow open carry, once a case squarely forces the 9th Circuit to decide whether “the right to keep and bear arms” includes the right to bear arms in public places. Although the majority was agnostic on this unaddressed issue, the textual, historical and precedential basis for recognizing a right to bear arms is overwhelming; the only significant cases that hold to the contrary are cases that asserted that no one (or only National Guard members) have arms rights at all. The holding of Peruta does not foreclose a correct result about open carry in a future decision.
In addition to the four-judge dissent by Judge Callahan, dissenting Judge Silverman wrote an additional dissent, joined by Judge Bea. He argued that the near-total refusal of some counties to issue carry permits could not pass any form of scrutiny. Licensed carry may or may not reduce violent crime in a statistically significant way, but it certainly does not increase crime; licensees are far more law-abiding than the general population. Here, Judge Silverman cited an amicus brief from six governors, and to the ILEETA brief.
A three-judge concurrence by Judge Graber responded to Judge Silverman’s dissent: Amici for defendants had cited studies that said that arms-carrying by licensed, trained citizens increases crime. The courts should defer to the legislature’s weighing of empirical evidence for “modest restrictions” on concealed carry.
In American constitutional law, there is much judicial deference to “modest restrictions.” But near-total prohibitions are not “modest restrictions.” The Graber concurrence mixed up fair licensing (modest restrictions) with prohibition (San Diego and Yolo).
The dissent respected the Supreme Court’s Heller precedent. While regulation might be the subject of pro/con argument, prohibition of the right to keep and bear arms is categorically void. Although the Heller parties and amici had submitted much pro/con social science (as ably summarized in Justice Breyer’s dissent), the court was not interested. A categorical ban on the exercise of an express constitutional right is necessarily void. If a textual right is considered harmful today, the text should be changed, by the amendment process. Judges should not make their own “assessments” of the social value of an express constitutional right, even a controversial one, such as the right to bear arms.
The right to bear arms in various jurisdictions today
Currently in California, a large majority of county sheriffs do issue carry permits to qualified applicants. In a few counties, abuse of the licensing system makes it impossible for almost every law-abiding, trained adult to obtain a carry permit. In the rest of the 9th Circuit, all states except Hawaii respect the right to bear arms, either through a fair licensing system for concealed carry, by allowing open carry, or even by allowing adults who may lawfully possess arms to carry arms. The 9th Circuit exceptions are Hawaii (permits almost never issued) and the Northern Mariana Islands (similar).
In the rest of the United States, only a few states do not respect the right to bear arms. The worst are are New Jersey (better than Hawaii, but permits are rare), Maryland (not as bad as New Jersey), and D.C. (preliminary injunction against the system issued by the federal district court; injunction stayed pending expedited appeal to the D.C. Circuit). In New York and Massachusetts, there is considerable geographical variation, with some jurisdictions issuing carrying permits fairly, but others rarely. Rhode Island is complicated but also has geographical variance.
Thus, most of the United States is compliant with the Second Amendment right to bear arms. In the history of First Amendment rights, one can find similar historical patterns of respect in most jurisdictions, nullification in some, and varying willingness of courts to protect constitutional rights from nullification.