Friday, June 10, 2016

CALIFORNIA - Right to Carry Decision

"COURT:  NO RIGHT TO CARRY CONCEALED GUNS" by Dana Littlefield & Kristina Davis, San Diego Union-Tribune 6/10/2016

NOTE:  This is from the online edition of the newspaper, so no article link.

Federal court rules California counties can require citizens show ‘good cause' for permits

A federal appeals court ruled Thursday that people do not have a constitutional right to carry concealed weapons in public.

Judges from the U.S. 9th Circuit Court of Appeals determined that California counties may require people who want permits for concealed guns to show a specific reason why they need them.

The ruling upends a previous one from two years ago in which the court struck down a San Diego County Sheriff's Department policy that required applicants to show “good cause” as to why they needed a concealed weapons permit.

“The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment,” the court said in its 7-4 decision.  “Therefore, because the Second Amendment does not protect in any degree the right to carry concealed firearms in public, any prohibition or restriction a state may choose to impose on concealed carry — including a requirement of ‘good cause,' however defined— is necessarily allowed by the Amendment.”

The ruling came about a year after oral arguments were heard in Northern California.  It stems from a 2009 lawsuit filed by part-time San Diego resident Edward Peruta and other gun owners who were denied concealed- carry permits.

They argued the Sheriff's Department's policy was unconstitutional.

Peruta and his lawyers contended that self-defense is a good enough reason for a concealed weapons permit as it is in many other states.  They also argued that the varying ways county officials have interpreted what amounts to “good cause” has resulted in some counties being lenient in granting the permits and others, like San Diego, being more restrictive.

In San Diego County, applicants must identify a specific reason they want to carry a concealed weapon, such as needing protection from a stalker or having a job that requires handling large amounts of cash.  They must also pass a background check, have good moral character and complete firearms training.

The Sheriff's Department released a statement Thursday reiterating points Sheriff Bill Gore had stressed previously: that the Legislature makes laws, courts interpret them and law enforcement enforces them under the expectation that they will do so regardless of personal beliefs or biases.

Robert Faigin, the sheriff 's chief legal adviser, said the ruling provides clear guidance on how the department will proceed.

“Based on today's decision, the procedure of obtaining a license to carry a concealed weapon within the County of San Diego will continue as it has since the 1980s,” the statement read.  “As always, anyone who believes that they may have circumstances which place them in harm's way, and necessitate the ability to carry a concealed firearm, can apply for a license with the Sheriff's Licensing Division.  Good cause is evaluated on an individual basis.”

California Attorney General Kamala Harris issued a statement Thursday, saying that the impact of gun violence in communities underscores a need for “sensible gun safety laws.”  Her office was a party in the case.

The decision is likely to be appealed.  Many observers see it as a vehicle to get the U.S. Supreme Court to rule on the issue of concealed weapons in public places and expand on what was established in the high court's 2008 landmark ruling in District of Columbia v. Heller, which upheld an individual's right to bear arms to defend oneself in the home.

Peruta, 67, said he would defer to his lawyers, but he knows the case isn't over.  He said the case is significant because it could impact every law-abiding gun owner in the country.  “If this case is going to be heard in front of the U.S. Supreme Court, I want Donald Trump in the White House,” he said in a phone interview from Connecticut.  “This decision could not have come down at a better time.  It's going to create a conversation regarding the choice of who we select as the President of the United States.”

He concluded by repeating: “Trump.  Trump.  Trump.” Peruta, founder of American News and Information Services, described himself as “a Constitutionalist” who switched his political party affiliation from Democrat to Republican about three years ago.  He lost his 2009 lawsuit in federal court in San Diego, but won the case on appeal to a three-judge 9th Circuit panel in February 2014.

The 2-1 decision held that the policy was overly restrictive.  The panel found that the desire to protect oneself is enough good cause for a law-abiding citizen to be able to carry a concealed gun.

Gore could have appealed that ruling from the three-judge panel, but decided against it.

The case would have been all but over, but an anonymous 9th Circuit judge polled the rest of the appeals court asking if there was interest for the case to be reheard “en banc,” or in front of a larger panel.  There was.  Eleven judges heard arguments on June 16 in San Francisco, with the Sheriff's Department ceding its right to present an oral argument to the state Attorney General's Office.  The Brady Center to Prevent Gun Violence filed a friend-of-the-court brief seeking reversal of the 2014 ruling.

The Peruta case was heard along with a similar case out of Yolo County.

Much of the judges' questioning revolved around whether the Constitution affords the same right to bear arms at the shopping mall as in the countryside.  The en banc panel also asked whether California's recent law banning the open carrying of unloaded firearms further restricts the right to self-defense.  While the case is specific to San Diego and Yolo counties' policies, the ruling is the new law of the land throughout California, and perhaps over the 9th Circuit's jurisdiction of Western states and Pacific islands.  But courts in other parts of the country remain divided on the issue, making it more likely that a concealed weapon case will be taken up by the U.S. Supreme Court at some point.  In December, a federal appeals court in Washington overturned a lower judge's ruling that the city's limits on carrying concealed weapons outside the home was likely unconstitutional.  The District of Columbia operates under a similar “good reason” rule for those wanting a concealed-carry permit.

However, the appeals court ruled on a technicality, not on the merits of the issue itself, and sent the case to be heard by a different judge.

Judge William A. Fletcher wrote the majority opinion for the 9th Circuit panel.  Three of the four judges who dissented wrote separate opinions.

One of the dissenting judges, Consuelo M. Callahan, wrote that the Second Amendment is a part of the country's bedrock.  Although she noted that two U.S. Supreme Court rulings since 2008, including Heller, have focused on the issue of firearms in the home, she said any fair reading of them “compels the conclusion that the right to keep and bear arms extends beyond one's front door.”

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