Supreme Court Declines to Take Carry Case, but Gorsuch Casts a Solidly Pro-Gun Vote
From NRA-ILA, June 30, 2017
Gun owners received disappointing news on Monday when the U.S. Supreme Court declined to review a decision by the U.S. Court of Appeals for the Ninth Circuit that effectively let stand California’s “may-issue” permitting regime. The upshot of this decision is that law-abiding Californians in many areas of the state will be effectively denied the right to “bear” arms in public for self-defense.
But there was a silver lining to this development as Justice Neil M. Gorsuch – President Trump’s pick to replace the late, great Antonin Scalia – came out strongly in favor of the Second Amendment by joining a dissent from the court’s decision penned by Second Amendment stalwart Justice Clarence Thomas. Gorsuch’s participation in the dissent confirmed that he, unlike so many of his colleagues in the federal judiciary, is indeed prepared to take the Second Amendment seriously.
The underlying case was Peruta v. San Diego. The plaintiffs had complained of being arbitrarily denied concealed carry permits, the only way for law-abiding persons in California to exercise the right to carry loaded, operable firearms in public for self-defense. Each plaintiff met all the qualifications for a permit but one: they could not show an extraordinary need for self-protection that distinguished them from the general population, as required by licensing officials in their counties of residence.
The case therefore presented the court with an opportunity to clearly state whether or not the Second Amendment extends its protections beyond the home. Indeed, the three-judge panel that originally heard the case in the Ninth Circuit recognized that its defining issue was “whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.”
The panel answered that question affirmatively, stating: “the Second Amendment does require that the states permit some form of carry for self-defense outside the home.” The panel also noted that it was California’s own decision to make concealed carry permits the only lawful path to do so. It therefore held the plaintiffs could prevail with “a narrow challenge to the San Diego County regulations on concealed carry, rather than a broad challenge to the state-wide ban on open carry ….”
After the panel’s opinion was published, the full Ninth Circuit voted for a larger en banc panel to rehear the case. The en banc decision, however, avoided the real issue presented by the case and held that “the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” It therefore summarily disposed of the plaintiffs’ claims without confronting the question of whether the Second Amendment applies beyond the home at all.
The Supreme Court majority, as is typical, did not issue an opinion explaining why it refused to review the en banc decision. Its refusal to do so does not, however, represent an endorsement of the Ninth Circuit’s reasoning or holding. As commentators have mentioned, federal appellate and state courts of last resort have come out different ways on the scope of the Second Amendment’s protection for carrying outside the home, and these disparate outcomes are not affected by the Supreme Court’s decision this week. The court may simply have decided, for example, that it did not want the differences between the panel and en banc approaches to the case to cloud the issue presented for its own resolution.
Whatever the majority’s thinking, the opinions of Justices Thomas and Gorsuch came through with vivid clarity in a sharply worded dissent from the decision to pass over the case. “At issue in this case,” Thomas wrote, “is whether [the Second Amendment] protects the right to carry firearms in public for self-defense.” They called the en banc court’s resolution of this issue “indefensible” and “untenable” and asserted it was “not justified by the terms of the complaint, which called into question the State’s regulatory scheme as a whole.” They also opined that that “[h]ad the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result.”
Thomas and Gorsuch additionally chided their judicial colleagues for treating the Second Amendment as a “disfavored right.” Thomas explained:
The Court has not heard argument in a Second Amendment case in over seven years—since March 2, 2010, in McDonald v. Chicago, 561 U. S. 742. Since that time, we have heard argument in, for example, roughly 35 cases where the question presented turned on the meaning of the First Amendment and 25 cases that turned on the meaning of the Fourth Amendment. This discrepancy is inexcusable, especially given how much less developed our jurisprudence is with respect to the Second Amendment as compared to the First and Fourth Amendments.
The dissent also contrasted the plight of the average citizen who must largely provide for his or her own security with that of government elites “who work in marbled halls, guarded constantly by a vigilant and dedicated police force.” The Framers, Thomas wrote, “reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it.”
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Supreme Court Refuses to Take up Issue of Gun Rights Outside Home
NBC: The U.S. Supreme Court declined Monday to decide whether the Constitution provides a right to carry a handgun in public, passing up a major issue about firearm owners' rights simmering nationwide.
The court said it would not examine a California law that requires showing "good cause" in order to get a permit to carry a concealed weapon. As a practical matter, the law makes it difficult for most people to get a permit in the state's urban areas.
Five residents of San Diego went to court challenging their local sheriff's interpretation of the law, which said an applicant must show some particular need for a permit. Licenses are not issued based on fear alone.
"There are few unresolved constitutional questions of greater legal and practical significance than whether the Second Amendment entitles ordinary, law abiding citizens to bear handguns outside the home for self defense," said Washington, D.C. lawyer Paul Clement, representing the challengers.
In June 2016, the 9th Circuit Court of Appeals, after analyzing the history of American gun laws, ruled that that "the Second Amendment does not protect in any degree the right to carry concealed firearms in public."
It therefore said, in a 7-4 ruling, that "any prohibition or restriction a state may choose to impose on concealed carry — including the requirement of 'good cause,' however defined -- is necessarily allowed by the Amendment."
The ruling caused an uproar among advocates of gun rights but was celebrated by gun control groups.
read … NBC News
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NRA Statement on Peruta v. California
From NRA-ILA, June 26, 2017
Fairfax, Va.— The executive director of the National Rifle Association Institute for Legislative Action, Chris W. Cox, released the following statement Monday regarding the United States Supreme Court's denial of petition in the case of Peruta v. California:
“We are disappointed in the Court’s rejection of the appeal in Peruta v. California, which now leaves millions of law-abiding Californians with no ability to bear arms outside the home. As Justices Thomas and Gorsuch correctly stated, too many courts have been treating the Second Amendment as a second-class right. That should not be allowed to stand. As the Supreme Court stated in its landmark decision in Heller v. District of Columbia, the Second Amendment guarantees an individual right to keep and bear arms for self-defense. The framers of our Constitution did not intend to limit that right to the home. We look forward to a future Court affirming that the right to keep and bear arms is as much a part of our Constitution as the other enumerated rights that it protects. We will not stop fighting until a future Court affirms this fundamental right."
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