This article was first published at The McAlvany Intelligence Advisor on Monday, February 24, 2014:
San Diego Sheriff Bill Gore is in a pickle. On February 13th, the Ninth Circuit Court of Appeals found that California’s onerous requirement that an applicant must show “good cause” in order to receive a permit to carry concealed was an infringement of rights under the Second Amendment (MIA wrote about that decision here). Every sentient observer of the scene predicted that Gore would appeal. Even James Chapin, the San Diego attorney who had defended the law, said that Gore would ask for a full court rehearing on the matter.
It’s as if Sheriff Gore got a phone call from someone who persuaded him not to. He wrote a letter to the Board of Supervisors announcing his decision not to appeal. A careful reading of the letter reveals his reluctance:
On Thursday, February 13, 2014, the Ninth Circuit Court of Appeals issued an opinion in the case of Peruta, et.al v. County of San Diego, et.al concluding that the State of California’s requirement of “good cause,” in cases where an applicant wants a firearm for personal protection impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.
In its opinion, the Ninth Circuit defined the issue on appeal as “whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.” In so doing, the Ninth Circuit took an exhaustive look at the history of jurisprudence surrounding the Second Amendment, and more specifically what it means to “bear arms.”
It is clear, given the 2-1 split in this opinion, as well as the split among Federal Circuits across the Country, that there is no easy answer on which everyone will agree.
What is also clear is the sheriff’s unwillingness to let the decision stand, counting himself among those in disagreement.
Here’s more from his letter:
The decision by the Ninth Circuit has found that the Second Amendment requires that states permit some form of firearm carry for self-defense outside the home. Additionally, the Ninth Circuit went on to emphasize that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession ‘– or carriage –’ of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Let’s cast this in a clearer light: the court’s decision is a grievous disappointment to the sheriff, but there are some anti-gun provisions that remain to avoid making this decision a complete and utter disaster to the anti-gunners. Churches, schools, and government buildings may still remain “shooter safe” zones, and gun buyers and sellers will still be required to jump through endless hoops of paperwork and background checks in order to buy and sell a firearm.
The sheriff went on to note that this skirmish, which appears initially to be a victory for pro-gun forces, is only a minor speed bump. Read the following carefully:
The legislature certainly has the power to amend California’s firearm carry process, and the Ninth Circuit has the ability to bring its own motion to rehear the decision of the three member panel en banc.
However, while the court’s decision clearly involves a question of exceptional importance, and conflicts with decisions of other United States Courts of Appeals, the opinion provides clear guidance in the context of issuing CCWs in California.
Translation: I’ve been tasked to enforce the law even if I don’t want to. You can hear my feet dragging in the background.
He selected his words very carefully:
Therefore, I see no need for me to petition for a hearing or rehearing en banc in order to be able to carry out my duties as Sheriff of San Diego County. As a result, I have advised the Office of County Counsel that I will not seek such a hearing.
At this point, his letter could have, and perhaps should have, said that his office is now open for business, that citizens interested in protecting themselves outside of their home are now free to apply for their CCW permit. Y’all come on down!
Instead he wants to stretch this thing out as long as possible, giving interested parties (including any of the Ninth Circuit Court judges who might want to demand a rehearing, or the California attorney general who could demand such a rehearing – her office has remained strangely quiet on the matter so far) every opportunity to reverse the decision. The sheriff closes his letter with this:
Should the decision of the Ninth Circuit become final, the Sheriff’s Department will begin to issue CCW’s in situations where the applicant has met all other lawful qualifications and has requested a CCW for purposes of self-defense.
There is a 90-day period during which such appeals to the court’s ruling may be brought. That puts any opportunity for San Diegans to apply for a CCW off into the middle of May.
And even then, there are major requirements to be met. There is a fee of nearly $200 to be paid. There is a requirement for 16 hours of instruction in the safe handling of firearms. There’s even a personal interview required to determine whether an applicant qualifies to get his CCW. And, of course, there’s the inevitable background check.
What appears to be clear is that everything will be done to keep this case from going to the Supreme Court. Since the case is built around arguments successfully made by the Supremes in Heller and McDonald it is likely to receive favorable attention from the majority – the very last thing anti-gunners want.
This may also explain why Illinois has refused to appeal a similar ruling by the Seventh Circuit Court in Moore v. Madigan, which overturned that state’s nearly total ban on its citizens’ right to carry concealed.
Not to worry, however, There’s still another case – Woollard v. Sheridan – coming up the chain from Maryland where the Fourth Circuit Court ruled against that state’s ban on concealed carry, but which has allowed it to remain in effect during appeal.
Here’s the pickle for the anti-gunners: let the cases go up to the Supreme Court on appeal, risking affirmation of the right of every American in every state to carry under the Second Amendment. Or let the decisions stand and give the citizens a taste of freedom. Once tasted, such freedom is addictive.
Orange County has already started accepting CCW applications. Other California counties are likely to follow suit. The Calguns Foundation has done an interesting study: if California citizens take advantage of the freedom now affirmed to carry sidearms for self-defense to the degree that citizens in other states (i.e., Texas) have, there could, within just a very few years, be 600,000 Californians carrying them, and violent crime statistics will inevitably crater, proving the claim once again that more guns mean more crime to be a lie.
The anti-gunners – and the San Diego sheriff – are in a pickle. It’s a wonderful thing to watch.
Washington Times: San Diego won’t appeal 9th Circuit on concealed carry
Hartford Courant: San Diego Will Not Appeal Peruta Gun Decision