By Dave Workman | Senior Editor
A significant ruling by a Ninth Circuit Court of Appeals panel in California striking down a requirement by San Diego County that concealed carry permit applicants must show “good cause” underscores the need for the Supreme Court of the United States (SCOTUS) to accept a New Jersey carry case filed by the Second Amendment Foundation, gun rights advocates are suggesting.
The high court is being asked to hear a case that could bring a definitive ruling on the right to bear arms outside the home, and supporting briefs have been filed by 19 state attorneys general, 34 members of Congress, the National Rifle Association, Gun Owners of America, Judicial Education Project, Center for Constitutional Jurisprudence and Cato Institute.
SAF is joined in the Drake case by the Association of New Jersey Rifle & Pistol Clubs. SAF founder and Executive Vice President Alan Gottlieb expressed optimism that the Ninth Circuit ruling in Peruta v. San Diego will give the high court even more reason to accept the case of Drake v. Jerejian.
Gottlieb noted to TGM, “Timing is everything,” and in this case, the timing of the Ninth Circuit ruling coincides remarkably well with SAF’s appeal for review of the New Jersey case by the Supreme Court.
In its divided ruling, the Ninth Circuit noted, “…the majority of nineteenth century courts agreed that the Second Amendment right extended outside the home and included, at minimum, the right to carry an operable weapon in public for the purpose of lawful self-defense. Although some courts approved limitations on the manner of carry outside the home, none approved a total destruction of the right to carry in public.”
The ruling actually refers to the Drake case, and to other SAF cases, including Moore v. Madigan – which forced Illinois to adopt a carry statute – and Woolard v. Sheridan in Maryland. It also sets up a conflict which the high court must resolve between the circuits, which have split on the right to carry outside the home.
The Peruta case is not a SAF action, but SAF, along with other gun rights organizations, filed amicus briefs in support. The majority ruling, written by Judge Diarmuid O’Scannlain, noted, “In California, the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a concealed-carry permit. And, in San Diego County, that option has been taken off the table.
“The San Diego County policy specifies that concern for ‘one’s personal safety alone’ does not satisfy the ‘good cause’ requirement for issuance of a permit,” the judge wrote. ‘Instead, an applicant must demonstrate that he suffers a unique risk of harm: he must show ‘a set of circumstances that distinguish [him] from the mainstream and cause[] him . . . to be placed in harm’s way.’ Given this requirement, the ‘typical’ responsible, law-abiding citizen in San Diego County cannot bear arms in public for self-defense; a typical citizen fearing for his “personal safety”—by definition—cannot ‘distinguish [himself] from the mainstream.’
“Although California law provides other specified exceptions from the general prohibition against public carry,” he wrote, “these do little to protect an individual’s right to bear arms in public for the lawful purpose of self-defense.”
“To be clear,” Judge O’Scannlain later added, “we are not holding that the Second Amendment requires the states to permit concealed carry. But the Second Amendment does require that the states permit some form of carry for self-defense outside the home.”
Bolsters Drake case briefs
The ruling sides rather well with language in a brief submitted to the Supreme Court by 34 members of Congress supporting SAF’s request for review in the Drake case. In that brief, signed by one Senator and 33 Representatives and written by California attorney Bradley A. Benbrook, they argue:
“First, the Court should affirm that the Second Amendment secures a right to carry handguns outside the home for self-defense. The majority in Drake held that it does not, and upheld New Jersey’s onerous requirement that an applicant for a carry permit must show ‘justifiable need’ – ‘specific threats or previous attacks which demonstrate a special danger to the applicant’s life’ – a standard that bars nearly every law-abiding, responsible citizen from carrying a handgun anywhere outside the home. Two other circuits have refused to expressly decide the question.
The Seventh Circuit, by contrast, has squarely concluded that the Second Amendment does protect citizens’ rights to carry handguns outside the home for self-defense.
“Second, the Court should clarify the standard of review governing Second Amendment claims involving restrictions on the right of law-abiding adults to carry handguns outside the home. The Third Circuit’s so-called “intermediate scrutiny” analysis consisted of the very sort of vague interest-balancing and extreme deference to legislative ‘policy choices’ that Heller stated should not occur in resolving Second Amendment challenges. Even if First Amendment-style tiered scrutiny applies to Second Amendment claims outside the factual settings in Heller and McDonald, the Nation’s courts are deeply split on the application of such scrutiny. Drake stands out for its refusal to put the government to the burden of citing evidence in support of its restriction, and in refusing to consider whether the restriction burdens more Second Amendment conduct than is ‘reasonably necessary,’ all in favor of rubber-stamping the legislature’s policy judgment over the citizens’ right to keep and bear arms.
“Unfortunately, such second-class treatment of the Second Amendment pervades the lower courts…
Likewise, the 19 attorneys general, with Wyoming Attorney General Peter K. Michael taking the lead, contend that it is time for the high court to clarify for one and all – including lower courts – that “bearing” arms for personal protection means carrying them outside the home. Here’s how they frame their argument:
“The Third Circuit’s decision in Drake threatens to give advance judicial endorsement to potential efforts by Congress to establish a minimum federal boundary that would violate Second Amendment rights. That misplaced boundary would shake the foundation on which Wyoming and all other states with gun permitting schemes less restrictive than New Jersey have relied on. While it is obvious that New Jersey’s permitting requirement has no direct effect on the laws of states that are more protective of an individual’s right to keep and bear arms, the implications of Drake are far reaching. If the right to keep and bear arms can constitutionally be so restricted as to require a showing of ‘justifiable need’ in order for a citizen to exercise it, future federal regulations could effectively preempt the carefully constructed permitting schemes of forty-three states with less restrictive requirements.
“Consistent with this Court’s role in regulating the relationship between the state and federal governments, this Court should grant the petition for writ of certiorari to determine whether New Jersey has imposed hurdles on the right to carry handguns that excessively burden the Second Amendment. Because New Jersey law restricts the right to keep and bear arms without distinction between carrying a handgun openly or concealed, this case presents this Court with an opportunity to broadly define the scope of the Second Amendment outside of the home. Addressing this issue here and now will serve to answer many other narrow questions that could otherwise be raised regarding individual permitting schemes in numerous cases…
“The unavoidable uncertainties following Heller and McDonald have manifested themselves as multiple splits of authority, both in the federal and state courts. Granting the petition for writ of certiorari in this case will provide the Court with the opportunity to give much-needed certainty as to the constitutionality of requiring an individual to show a ‘justifiable need’ to exercise the right to keep and bear arms. Additionally, this Court should take this opportunity to resolve these uncertainties to ensure that Second Amendment law develops appropriately.”
Barr blasts Third Circuit
Former Georgia Congressman Bob Barr weighed in on the Drake case, criticizing a federal judge for writing the opinion in the Third Circuit “that bureaucrats working for the Commonwealth of New Jersey may summarily deny citizens the right to protect themselves against armed criminals — notwithstanding the language in the Second Amendment guaranteeing individuals that right, and as reaffirmed by the United States Supreme Court in two landmark decisions in 2008 and 2010.”
SAF and ANJRPC lost at the trial court level and appealed to the Third Circuit, where they also suffered a setback. But with a split on concealed carry and the right to bear arms, it seems almost certain that SCOTUS will finally have to weigh in.
The high court has already turned down a couple of cases from other circuits that raise the same issue, a question that was not specifically answered by either the 2008 Heller ruling or the 2010 McDonald ruling. Both landmark Second Amendment cases were argued successfully by Virginia attorney Alan Gura. By no small coincidence, he is representing SAF on the Drake case.
Following Heller and McDonald, gun prohibitionists put forth the argument that, based on SCOTUS language in those rulings, the Second Amendment only applies within the home, a notion that gun rights advocates and many constitutional experts consider absurd. A right that exists only in the home is not a right at all, they argue, but a heavily-regulated privilege, which is how they say gun prohibitionists might have it.
When the Supreme Court ruled in Heller that the Second Amendment affirms and protects a fundamental individual right from government infringement, and in McDonald that this limit on government power extends to the states, it could have – and should have, according to gun advocates – explained that the right to keep and bear arms is not confined to a residence, but applies broadly across the whole landscape.
But the high court under Chief Justice John Roberts has been reluctant to take huge legal steps, instead opting to take what seems like baby steps toward full affirmation of the Second Amendment.
Now, the court may have no choice but to take a “right to bear” case, and many experts – in the wake of the Ninth Circuit ruling and one in the Seventh Circuit that also held the right extends beyond the front porch – are suggesting that a SCOTUS ruling will state that the right to keep and bear arms extends to public places.
