Friday, February 14, 2014

What The 9th Circuit's Landmark Ruling On Concealed Carry Actually Means


Yesterday, the 9th Circuit Court of Appeals issued a landmark ruling in regards to the right to obtain a permit to carry a concealed weapon.  In short, the Court ruled that all law abiding citizens must be allowed some method of carrying a functional firearm for self defense, because the 2nd Amendment secures such a right.  Applied to California's Concealed Weapons Permitting (CCW) laws, this ruling requires issuing agencies to issue a permit to any law abiding citizens who fulfill training and background check requirements.  They can no longer simply decide that the applicant does not have sufficient need.  If upheld, this ruling makes a CCW permit a right that can only be denied for cause (such as a felony conviction or other facts that demonstrate the person cannot be trusted with a firearm in public).

Here are a number of facts that have not been made clear in news reports:

1) This ruling is far from unique.  Many news reports - likely relying upon disinformation from anti-gun rights groups - have stated or implied that this is the first time that an appeals court has ruled in this way.  This is not true.  The 7th Circuit issued a virtually identical ruling that forced Illinois to establish a concealed carry system that issues permits to all qualified persons.  (It is significant that Illinois did not appeal.)  In two other cases, the rulings went the other way - but one of these rulings was based upon the fact that the person involved never applied for a permit, and therefore it does not apply.  So, at this point two appeals courts have ruled that a permit is a right under the 2nd Amendment and one has ruled that it is not.  What makes this ruling so very significant is that the 9th Circuit is well known to be the most liberal of all federal appeals courts.  If they cannot win at the 9th Circuit, they probably cannot win at the Supreme Court.

2) This ruling does not take effect immediately.  The 9th Circuit's action sends this case back to the trial court level, with direction that the lower court consider a CCW permit to be a right under the 2nd Amendment.  Appeals may very well delay this by months to years. Once the case gets there, the District Court will basically have no choice but to issue a "summary judgement" requiring the San Diego Sheriff to issue permits to anyone meeting training and background check requirements.  All other jurisdictions under the 9th Circuit will need to conform as well.

This ruling does provide a great deal of legal "cover" to Sheriff's and Police Chiefs who wish to issue permits to all qualified applicants for simple "self defense".  We therefore may see some issuing authorities change their policies to conform with the ruling much sooner than others.

3) As noted above, this ruling will be appealed.   The first appeal, which is virtually certain, would be to the entire 9th Circuit, as opposed to the three judge panel that issued the ruling.  Since the cost is relatively low and a loss would not extend the number of states affected by the ruling, there is no reason why San Diego would not appeal to the entire court.  No matter how this ruling goes, the loosing side has the right to appeal to the Supreme Court.  However, if this case cannot be one by San Diego in the 9th Circuit, it is unlikely that they could ever win in the current Supreme Court.  An appeal to the Supreme Court, if accepted, would result in a ruling with nationwide effect.  Other states, such as New York and New Jersey, would likely quietly ask San Diego not to appeal for this very reason.  Gun right's advocates would like prefer such an appeal for the same reason.

Given that five states (Alaska, Arizona, Arkansas, Vermont, Wyoming) permit their residents to carry concealed or openly without a permit and four more (Idaho, Montana, New Hampshire, New Mexico) permit the open carry of firearms without a permit, there is a chance (albeit a small one) that the Supreme Court could rule that states must permit some form of carry without a permit.  After all, if 18% of states are operating under such systems, it tends to indicate that permits are of no benefit.  If they are of no benefit, than the infringement upon the 2nd Amendment right cannot be justified.  San Diego would do well to consider this before appealing.

Should either side appeal to the Supreme Court, there is a very good chance that the appeal will be heard, since either way previous appeals go, there is a split between appeals courts that requires clarification. 

4) 43 states, or 86% of all states, already operate CCW systems virtually identical to
States in Green or Blue already have permit systems in compliance with the ruling.
what the court ruling requires.
 None of them has turned into the "Wild West" or experienced any increase in gun crime.  No state, in the 25 years history of "Shall Issue" concealed carry, has ever seriously considered repealing their law.  The court's ruling simply brings California into step with the vast majority of other states.

So, while this ruling is a huge win for gun rights, the fight is far from over.  Stay tuned, the next few months will be interesting.

Update 2-14-2014:

An excellent article on the ruling, by a lawyer familiar with gun law, can be found HERE.

In it Eugene Volokh explains why the rulings by the 9th and 7th Circuits are almost certain to be upheld.  Quoting from the ruling:

[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.”

The bottom line is that the Supreme Court has twice ruled that the 2nd Amendment confers an individual right.  The Amendment is clear that it protect both a right to "keep" (within one's home) and "bear" meaning to carry outside the home.  In it's 2nd ruling the high court held that this protection is "fundamental to or system of ordered liberty" - indicating that it affords a high level of protection.  Furthermore, in the Heller decision, the court foresaw it's application to the carrying of firearms, stating explicitly some places that can be "off limits" while carrying.  If the court did not see the right extending outside the home, the court could have simply said, "this ruling does not extend to carrying a gun outside the home".  They didn't.  Instead they addressed the issue - likely indicating that they do believe there is a right to carry. 

The other appeals courts have chosen to ignore these facts and will not recognize any right to carry until the Supreme Court forces then to do so.  Chance are very good that this is going to happen in the near future.

Update 2-15-2014:

Many in the gun rights community were critical of Governor Brown when he signed the ban on unloaded open carry of firearms - while others predicted that by doing so, he was "teeing up" a win on concealed carry.  Well, according to a well respected and unbiased expert, it appears that Governor Brown indeed set up Thursday's decision:

"UCLA professor Adam Winkler, an expert on gun laws, called the ruling "a huge victory for gun owners in California."

"They have been seeking the right to carry concealed weapons for years now," Winkler said.

Citing the 2012 ban on the open carrying of guns, Winkler said: "Gun control advocates have no one but themselves to blame for this ruling. You have to give someone some option to carry a gun."

He said that the ban on openly carrying unloaded guns affected relatively few people because most gun owners don't want the attention and questions that guns in public attract. But many more people might apply to carry concealed weapons, he said. "If you don't want many guns on the street, the answer is open carry," Winkler said."

(Source - LA Times Article)

Gun control advocates continue to be in denial in regards to the scope of the Heller/McDonald Supreme Court rulings.  They just cannot accept the fact that the 2nd Amendment protects a personal right.  This is but the latest example of what happens when gun control advocates act like these rulings never happened.  Even though the court was abundantly clear that firearms "in common use" by the public cannot be banned, they continue to attempt to ban so called "assault weapons" - even though they are the best selling firearms on the market.  Expect the next big ruling to strike down one of the many bans of such guns, probably in California.

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