The Second Amendment – a Second Class Right? Peruta v. Cty of San Diego

By Alexandria Kincaid, Attorney

What does the Second Amendment actually protect?   Most gun owners believe the phrase “shall not be infringed” is pretty clear. However, some judges find it confusing. Today, we saw the country’s largest, busiest, and ordinarily liberal Circuit Court (the Ninth Circuit Court of Appeals) change its mind and overturn its own, prior decision about whether the Second Amendment protects our right to carry a firearm outside our homes.  Peruta v. Cty. of San Diego.

The facts:  Gun owners know that California has some of the toughest gun control laws in the country.  Not only are many types of weapons banned, but those that are not banned are still heavily restricted in terms of the ability to buy, sell, and carry them.  For example, unless you fall within a limited exception, such as an on-duty cop, you cannot openly carry your firearm in California.  Thanks to the decision today, you now may also be denied the ability to carry a concealed firearm outside your home.

The court interpreted “shall not be infringed” to mean that the Second Amendment does not protect “in any degree” the right to carry concealed firearms in public.  In fact, according to the judges, “any prohibitions or restrictions a state may choose to impose on concealed carry” would be constitutional, because the Second Amendment does not and has never protected such a right.

How does this play out for those of us who live in jurisdictions governed by the Ninth Circuit (including Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington)?  Your state may pass laws that allow your sheriff to deny you the ability to carry a concealed firearm outside your home.  If your state concealed carry law does not require your sheriff to issue concealed carry permits to law-abiding citizens (“shall issue” law), then your ability to carry a concealed firearm outside your home is up to the whim of your sheriff.   Simply requesting a concealed carry permit to protect yourself from thugs, including the murderers, robbers, and rapists running amuck on the streets, is not enough.  In some counties, unless you can prove to your sheriff that specific threats have been made against you and your sheriff “feels like” granting you the “privilege” of carrying a firearm, you are expected to resort to your rape whistle.

The history:  The United States Supreme Court decided in 2008 that Americans have an individual right to keep and bear arms for self-defense.  District of Columbia v. Heller, 554 U.S. 570 (2008), McDonald v. City of Chicago, 561 U.S. 742 (2010).  But these cases only presented a very limited question – whether we the people have a right to have a handgun in our own homes.  The question the courts are now deciding is whether we also have a constitutionally protected right to carry a handgun outside our homes.

An oft-repeated phrase in the Heller case is now being used as a sword to implement out-of-control gun control.  In the Heller decision, Justice Scalia mentioned that some restrictions on our right to possess and carry firearms are constitutional.  This phrase has opened the door, wide, for the antis to come up with all manner of gun control.

Enter the Peruta case.  The Ninth Circuit heard the case twice.   In 2014, a three-judge panel decided that because California bans open carry, if a Sheriff denies residents the ability to conceal carry, then residents are completely denied any ability to carry outside their homes, which violates the protection of the Second Amendment.  Since this first, pro-gun decision, I’ve been expecting some kind of backlash or retraction.  And as we see today, it was too good to be true.

How did the Ninth Circuit reverse its own decision?  In the Ninth Circuit, a three-judge panel almost always decides a case.  The loser or intervening parties may ask the full court of 28 judges (often only 11 participate) to rehear the case “en banc” or, in layman’s terms, “with all judges present and participating.” These en banc rehearings are few and far between. A rehearing is only supposed to happen when the original decision conflicts with a Supreme Court decision or another Ninth Circuit decision, or when the case “presents an issue of exceptional importance.”

What this means in numbers is that although the court has about 15,000 cases on its docket and 1200 petitions for rehearing en banc each year, it usually only has about two dozen appeals pending for en banc review at any one time.  Peruta received the en banc privilege, resulting in the new, anti-gun decision.

The absurdity:  What the Second Amendment actually protects is still being decided.  The Peruta case is a prime example of how courts will limit our ability to defend ourselves.  In the eyes of some judges, the Second Amendment is nothing more than a privilege that affords different degrees of protection, depending on where you live.  In some locations, the ability to carry outside our homes may still be a right.  In other locations, it is only a privilege granted at the whim of a sheriff.  Until the United States Supreme Court provides an answer, we are at the mercy of different judges deciding this extremely important issue on a case by case basis.  If Hilary Clinton appoints our future justices to the Supreme Court, we can expect similar decisions to become the law of the land.

The Second Amendment, while quite clear to those of ordinary intelligence, has been turned by some courts into nothing more than a privilege to be granted by the elite to the common.  As Justice Thomas wrote in a dissenting opinion in which Justice Scalia joined shortly before his death, the court has “relegated the Second Amendment to a second-class right.”

Taking Away Guns From Those Who Have Served: The Egregious Misconduct of the VA

by Alexandria Kincaid, Attorney

For years (at least since 2012), over 99% of all names reported to the National Instant Criminal Background Check System (NICS) list’s “mental defective” category are those of veterans.  These veterans are reported by the Department of Veterans Affairs (the VA) to the NICS, without first allowing the veterans an opportunity to appear and present their side of the story to a judge or even the VA Board subject to ordinary court rules, such as the rule that does not allow hearsay evidence.

Before taking away a veteran’s gun rights, the VA does not even need any evidence that the veteran is a risk to the public or himself.  Rather, if a veteran cannot manage his or her financial affairs because he or she will be undergoing significant treatment, such as multiple surgeries, the VA will deem the veteran incapacitated, appoint the veteran a fiduciary to manage the veteran’s assets, and report the veteran to NICS.  As soon as these veterans are reported, the veterans lose their gun rights. One of my primary practice areas is to help veterans who have lost their gun rights to get them back.

One of the most egregious cases to come through my office involved a veteran named Michael Tam.  If you want to hear first-hand how the VA is taking away veterans’ gun rights, listen to Mr. Tam’s story at in Episode 27 of the Gun Law Podcast at  His tale is classic:  he served our country abroad, was injured, required treatment, was appointed a “fiduciary” to manage his finances, and then lost his gun rights.

Mr. Tam came to me for help after the VA took his gun rights away without a hearing or notice to him. After serving our country, Mr. Tam needed long-term medical rehabilitation, which included multiple surgeries. The VA declared him mentally incapacitated, because the VA decided that he would require the help of another person while undergoing treatment.  Without his knowledge, consent, or the input of his treating physicians, the VA unilaterally appointed this vet an agent to take control of his finances (a fiduciary), and reported him “adjudicated a mental defective” to the FBI. This VA action, of course, revoked Mr. Tam’s right to possess a firearm. Have no doubt, the VA regularly infringes upon veterans’ gun rights.

Congress will consider the Veterans 2nd Amendment Protection Act, which will prevent the VA from reporting veterans to the FBI unless the veteran was afforded due process. This law would require that the veteran receive notice and a hearing before a court, rather than the mere decision of the VA board. Urge your Congress men and women to support the Veterans 2nd Amendment Protection Act.

Sandy Hook Gun Lawsuit Allowed to Proceed (For the Moment)

Millions of Americans lawfully own and responsibly use AR15s everyday, but relatives of the Sandy Hook school shooting victims are trying to use the court system to hold manufacturers of the rifle accountable for the acts of a criminal.  The over-zealous plaintiffs previously filed their lawsuit against Remington Arms in federal court, and the federal court judge rightfully tossed the case to the curb.  But the plaintiffs refiled the lawsuit in state court.  Today, the state court judge decided to allow the case to proceed, although she will allow the defendants to raise their claim of immunity again later on.

The filing of this lawsuit is in contradiction of current federal law that was specifically enacted to prevent this type of back-door gun control.  

Congress passed the Protection of Lawful Commerce in Arms Act in 2005 to protect firearms dealers and manufacturers from these specific types of suits. The number one purpose of the law is to prevent lawsuits against dealers and manufacturers “for the harm solely caused by the criminal or unlawful misuse of firearm products . . .”.  If such a case is filed, in federal or state court, the law requires that the court dismiss it.

Manufacturers and dealers can still be held liable for defective products, breach of contract, criminal misconduct, or other violations of the law. Similar laws protect manufacturers of automobiles, power tools, and other “dangerous” products from over-zealous plaintiffs looking for someone to blame for the actions of an individual. 

Of course, an activist judge coupled with aggressive lawyering will find ways around any law. The plaintiffs in the pending state lawsuit are creatively trying to argue their way around the PLCAA by claiming that the way in which the manufacturer marketed the rifle to the public was negligent.  If you’re shaking your head and trying to understand this argument, you’re not alone. They are arguing that the manufacturer was negligent in producing and distributing the AR-15 rifle to a populace who is not trained to use it, would not understand its power, and the manufacturer “knew” its AR-15 rifle used in the Sandy Hook shooting “wasn’t suitable for civilian use when it was introduced in the market.” The plaintiffs argue that the way Remington markets its “military-style weapon to the civilian market” is a form of “negligent entrustment,” which is an exception to the immunity legislation. They claim that the manufacturer should have foreseen that someone would misuse such a rifle, because it poses an unreasonable and egregious risk of injury to other people.  They also make a second, creative argument, that alleges that the marketing violates Connecticut state law prohibiting deceptive advertising.

It’s easy for those of us who support and try to protect the Constitution to see the effect of allowing this type of a case:  the criminals will still run free, but we will no longer be able to find a firearm for sale to defend ourselves.