Yesterday a panel of the 9th Circuit Court of Appeals ruled in Peruta v. County of San Diego that the county’s broad prohibition against concealed carry violates the Second Amendment. The context was a California law that that generally bans both open and concealed carry, but allows individuals to apply to local authorities for a concealed carry permit. In San Diego County, an ordinary citizen could not get a concealed carry permit; rather, exceptional circumstances had to be demonstrated. Thus, as a practical matter the typical citizen couldn’t carry at all, either open or concealed. The court held that this scheme impermissibly infringes the constitutional right not just to keep arms, but to bear them. The court said that neither concealed carry nor open carry is constitutionally mandated, but some form of a right to carry must be broadly available to citizens. (“To be clear, we are not holding that the Second Amendment requires the states to permit concealed carry. But the Second Amendment does require that the states permit some form of carry for self-defense outside the home.”)
The court’s opinion is lengthy but well worth reading. It includes a historical survey of how the right to bear arms was understood at the time when the Second Amendment was adopted, and in the years thereafter. The court notes that there is a split among the circuits on this issue, which ultimately will have to be resolved by the Supreme Court. I don’t have any doubt that the Supreme Court, as currently constituted, would side with this 9th Circuit panel and uphold a right to carry arms as well as to bear them. The 9th Circuit opinion responds to and expressly rejects the reasoning that was used by the 2nd, 3rd and 4th Circuits:
[T]he analysis in the Second, Third, and Fourth Circuit decisions is near-identical to the freestanding “interest-balancing inquiry” that Justice Breyer proposed—and that the majority explicitly rejected—in Heller. See Heller, 554 U.S. at 689–90 (Breyer, J., dissenting) (proposing that in Second Amendment cases the court should “ask whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests”); see also id. at 634–35 (majority opinion) (rejecting a “judge-empowering ‘interest-balancing inquiry’” as a test for the constitutionality of Second Amendment regulations because “no other enumerated constitutional right [had its] core protection . . . subjected to [such] a freestanding” inquiry).
That’s right: the courts would find absurd an argument that 98% of citizens should be deprived of their rights of free speech in order to serve some other governmental interest, but that same argument is still made with a straight face when the Second Amendment is at issue. The 9th Circuit opinion concludes by quoting the Supreme Court’s Heller and McDonald decisions:
We are well aware that, in the judgment of many governments, the safest sort of firearm-carrying regime is one which restricts the privilege to law enforcement with only narrow exceptions. Nonetheless, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table. . . . Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court [or ours] to pronounce the Second Amendment extinct.” Id. at 636. Nor may we relegate the bearing of arms to a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.” McDonald, 130 S. Ct. at 3044.
For many years, of course, the right to keep and bear arms was a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees….” When Larry Tribe published the first edition of his treatise on Constitutional Law in 1978, he famously treated the Second Amendment in a single footnote. The amendment was more or less a dead letter. What changed? Several things: empirical research by John Lott and others showed that more guns do not mean more crime; legal scholars analyzed the genesis of the amendment and refuted the claim that it had no application outside of state-organized “militias,” and–most of all–a grass roots movement that ultimately encompassed millions of Americans promoted guns and gun safety, lobbied for modern carry legislation including “shall issue” requirements, and generally improved the image of guns and gun owners. The result of this grass roots movement is that at least 40 states now have “shall issue” laws.
My guess is that the legal revolution would not have happened without the grass roots movement. Scott has noted more than once that the image of the federal courts as bulwarks of civil rights, standing tall against the winds of prejudice to uphold unpopular freedoms, is almost entirely fictional. In reality, the courts have almost always bent with public opinion, as they did for a long time with regard to the Second Amendment.
That doesn’t mean that gun rights advocates can rest. While I think there is little doubt that the present court would agree with the reasoning in Peruta, that could easily change: Heller was decided 5-4. Liberals are revanchists on all issues. They do not accept that the flow of history can move in any direction but theirs, and they won’t give up. This is just one more reminder than any conservative who sits out an election is foolish.