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.”