This article first appeared at The McAlvany Intelligence Advisor on Monday, February 17, 2014:
It’s a little early to celebrate but the decision announced on Thursday by the most liberal circuit court in the country is no doubt encouraging. However, the conclusion by a hyperventilating writer at Human Events was excessively optimistic:
Perhaps we will come to view Thursday’s ruling as the beginning of the end of the gun-control movement as we have known it in the United States.
If this decision holds all the way through the Supreme Court, some core tenets of that movement will [have been] soundly defeated for a very long time to come.
The long war against guns began in 1934 and is now so engrained in the body politic that to declare final victory in that war is, at present, just a hope. But the hope was boosted with the remarkable ruling by the Ninth Circuit Court of Appeals in a case that expanded the right of citizens in San Diego to carry a firearm for the purposes of self-defense.
The ruling in Peruta v. County of San Diego, decided 2-1, said that California’s requirement that a citizen must show “good cause” before a sheriff could issue a concealed carry permit was an infringement on rights guaranteed by the Second Amendment. In his 70-page opinion for the majority, Judge Diarmuid O’Scannlain was clear and explicit:
We are called upon to decide whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense….
Because the Second Amendment has always been an individual right to defend oneself … states may not destroy the right to bear arms in public under the guise of regulating it.
What he didn’t say was that the requirements laid down by anti-gun politicians in Sacramento were designed deliberately to neutralize the Supreme Court’s decisions in Heller and McDonald. They required that any citizen wanting a concealed carry permit had to provide extensive documentation showing not only that he was of good moral character but that he had a good reason to want to carry. He had to provide copies of restraining orders and letters from law enforcement agencies proving that he had a sufficiently pressing need to self-protection to be issued such a permit. The law was very specific: merely wanting a permit to carry for personal protection was not enough to grant one. The law required the applicant to prove to the sheriff that these are “circumstances that distinguish [him] from the mainstream.”
This so outraged one Mr. Edward Peruta that he, along with four other San Diego citizens, filed suit back in 2009 claiming simply that their Second Amendment rights were being violated because of that spurious “good cause” requirement. He found support from the California Rifle and Pistol Association Foundation and the National Rifle Association who backed his lawsuit against the county sheriff, hiring a high-powered law firm to press the attack.
What surprised many in the ruling is that Judge O’Scannlain went back to the original meaning and purpose behind the creation of the language of the Second Amendment, rather than decrying such as mere opinions of long-dead white males with little relevance for today’s new world. The judge crafted his opinion in such a way that it would be treated kindly by the majority of the Supreme Court when the case arrives there, as it surely will: he quoted extensively from both the Heller and McDonald opinions issued by that court.
From the Heller case he quoted:
Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope [to be] too broad….
The Second Amendment secures the right not only to “keep” arms but also to “bear” them – the verb whose original meaning is key in this case.
Saving us the trouble of pulling the eighteenth-century dictionaries ourselves, the [Supreme] Court already has supplied the word’s plain meaning: “At the time of the founding, as now, to “bear” meant to “carry.”
Yet, not “carry” in the ordinary sense of convey[ing] or transport[ing] an object, as one might carry groceries to the check-out counter or garments to the Laundromat, but “carry for a particular purpose – confrontation.”
He no doubt relished the opportunity to quote one of the most virulent anti-gun justices on the Supreme Court, Justice Ginsburg, who neatly and accurately supplied him with just the definition he needed to make his point. She defined “bear” as meaning to “wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in case of conflict with another person.”
He even went back further into history to quote Sir William Blackstone, the English jurist whose Commentaries have served well to illustrate just how they informed the thinking and decisions of the framers and founders:
Blackstone noted in his Commentaries on the Laws of England that the “right of having and using arms for self-preservation and defence” had its roots in the “natural right of resistance and self-preservation.”
Concluded O’Scannlain:
With Heller on the books, the Second Amendment’s original meaning is now settled in at least two relevant respects:
First, Heller clarifies that the keeping and bearing of arms is, and has always been, an individual right.
Second, the right is, and has always been, oriented to the end of self-defense.
Any contrary interpretation of the right, whether propounded in 1791 or just last week, is [in] error.
The McDonald case sealed the deal and completed the loop with its conclusion that the Second Amendment applied not only to the federal government, but to the states as well, thanks to the Fourteenth Amendment.
The NRA was ecstatic, calling it “a tremendous victory” and adding:
The Ninth Circuit Court of Appeals has confirmed that the Second Amendment protects an individual right to carry firearm for self-defense in public….
Peruta is the first appellate decision to hold that licenses to carry cannot be denied to law-abiding citizens just because they do not have a special need to carry.
Grant the point. The NRA has been busily raising funds and expending them in supporting numerous lawsuits around the country, attacking attempts similar to those done in Sacramento to neutralize the Supreme Court’s decisions, and this is the first one from an appeals court favorable to their position.
The decision also invoked howls of protest from the usual suspects, including SFGate where Bob Egelko took pains to give the opinion of the one unhappy dissenting justice in case lots of ink. Justice Thomas was only too happy to oblige, repeating the canard that the ruling will allow more guns on the streets of San Diego, and hence, more crime and violence:
Courts and state legislatures have long recognized the danger to public safety of allowing unregulated, concealed weapons to be carried in public.
The best studies on the matter have shown precisely the opposite, but no matter. Justice Thomas really doesn’t care as long as he had a chance to promote his narrative.
Where to from here? San Diego County immediately appealed the ruling, demanding that an 11-judge panel rehear the case. Following that, it’s likely to move on up the chain to the Supreme Court, giving that court another opportunity to clarify its position and settle differences in other courts of appeal which have come to different conclusions than the one in California.
This is a skirmish in the long war against guns. It is a favorable outcome. But it is far from the last shot in that war.
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Sources:
Human Events: Ninth Circuit Court blows a hole in gun control
SFGate: Court strikes California law restricting concealed weapons
The NRA: Victory in Peruta v. San Diego: Ninth Circuit Confirms Right to Carry Arms in Public
The timeline of the case from 2009 to the present
The ruling in Peruta v. County of San Diego
The District of Columbia v. Heller
Commentaries on the Laws of England by Sir William Blackstone
The Ninth Circuit Court is the most liberal in the country
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