Three Takes On the 9th Circuit's Second Amendment Decision

The Ninth Circuit Court of Appeals has ruled on a Second Amendment case, finding in Peruta that the court believed there is no Second Amendment-protected right to carry a concealed handgun outside the home. But what does this mean for the average gun owner, if anything, in the rest of the country? We asked three Law Shield attorneys in Texas, Pennsylvania, and Oklahoma to give us a range of analysis about what the ruling means for 2nd Amendment rights in other circuit-court jurisdictions:

Edwin Walker, Texas Law Shield Independent Program Attorney

Edwin Walker, Independent Program Attorney for Texas Law Shield
Edwin Walker, Independent Program Attorney for Texas Law Shield

The Second Amendment applies at home. There has always been a huge issue with the scope of the Second Amendment, and what a particular court thinks it should or should not protect. Under Heller and McDonald, two landmark Second Amendment cases, currently the Second Amendment protects only those firearms that are common in use, for self-defense, at home. When a person wants to leave the confines of their home, however, that is when things get dicey.

The case at issue out of California was asking whether a “may issue” licensing scheme for carrying a concealed handgun was legal, or whether the Second Amendment allowed people to carry concealed in public with no regulation. While I would love it if the Second Amendment was my carry permit, unfortunately that’s just not how the current law works right now.

The Ninth Circuit’s Decision isn’t binding on every state. Luckily the People’s Republic of California, where the Ninth Circuit is located, doesn’t make up the rules for everybody; just Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Other districts are running into similar issues; a nearly identical case is pending review in the Appellate Court for the D.C. circuit.

What this means is, Supreme Court nominations made by presidents are more important now than ever before. Since this issue is cropping up in so many Appellate Districts, I could easily see this going before the U.S. Supreme Court. This makes the open spot on the Supreme Court very important; the stage has been set for a Second Amendment case with all of these appeals, and we had better hope someone with their head on straight gets that spot.

While not a victory for freedom, this Ninth Circuit decision is not the end-all-be-all for every state. However, this ruling means that as Texans we need to keep a very close eye on our Texas legislators to make sure that no anti-gun bills ever become law.  We also need to watch Washington so that Congress will make no anti-gun laws.  Basically the Ninth Circuit has said that the legislature is in charge of preserving our 2nd Amendment rights, not the courts!

Justin McShane, U.S. Law Shield of Pennsylvania:

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Justin McShane, Independent Program Attorney for U.S. Law Shield of Pennsylvania

When Pennsylvanians look at federal law, we realize that we are in the Third Circuit. And the Third Circuit is home to not only Pennsylvania, but also New Jersey. New Jersey is not at all like Pennsylvania. Whereas, Pennsylvania is a “shall issue” state; New Jersey decidedly is not. Whereas, Pennsylvania has the protections of Article I Section 21, New Jersey does not. So while we as Pennsylvanians are rightly concerned with the state of the Second Amendment nationally, if we were only to look at the Third Circuit and ignore our Pennsylvania heritage and laws, we would get the wrong impression.

Similar to the 9th circuit ruling in Peruta on California’s “good cause” requirement to attain a permit, the 3rd Circuit in Drake v. Filko upheld New Jersey’s “justifiable need” requirement to attain a license to carry a handgun outside of the home.  The “justifiable need” requirement in New Jersey was implemented by requiring that an applicant show a “specific threat or previous attack demonstrating a special danger to applicant’s life that cannot be avoided by other means.”  To justify upholding this restrictive law, the 3rd Circuit reasoned that this law did not burden a constitutionally protected freedom; essentially claiming that the 2nd Amendment provides no right to carry a firearm for protection outside the home. They further stated, that even if the law did burden a constitutionally protected right, the handgun permit law qualifies as a longstanding, presumptively lawful exception to the 2nd Amendment right.  In saying this law qualifies as an exception, the Court pointed to laws they viewed as demonstrating that these sorts of restrictions had been historically present in New Jersey.  The Court took their analysis one step further, and stated that even if the law burdened citizens’ rights, it was constitutionally allowable when viewed under the intermediate level of scrutiny.  This intermediate level scrutiny upholds a law as constitutional if it is rationally related to promoting an important state interest, such as the state’s interest in protecting the safety of its citizens (although it could certainly be argued that this law does nothing to make law abiding citizens safer).  It is also worth noting that most of the other rights enumerated in the Bill of Rights are afforded Strict Scrutiny by the Courts, which requires a finding that the law in question serves a compelling state interest, and that the law is necessary to serve that interest.  Sadly, the 2ndAmendment is one of the few rights enumerated in the Bill of Rights not universally across all circuits afforded this level of highest scrutiny.

Fortunately for Pennsylvania residents, we are afforded greater firearms protection through our State Constitution. The 2nd Amendment acts as a floor, and is a base level of rights to firearms, that the government is not supposed to be able to restrict further. While ideally the 9th Amendment (The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people) would grant us rights to carry firearms if the 2nd Amendment is not explicit enough for the courts, unfortunately it has never been applied in such a way. Fortunately, state constitutions can raise the minimum rights that we are granted off the floor provided by the 2nd Amendment. In Pennsylvania, Article 1, section 21 of the State Constitution promises Pennsylvanians that the “right of the citizens to bear arms in defense of themselves and the State shall not be questioned.” This is a is more strongly worded, and more definite individual guarantee of our rights than the 2nd Amendment. In addition to this 18 Pa.c.s. 6109 provides that any Pennsylvanian who does not fit into one of the prohibited classes of persons listed in the statute SHALL be issued a permit. This is why Pennsylvania is classified as a shall issue state, where New Jersey is a may issue state. While the 3rd Circuit has certainly not done law abiding gun owners any favors with Filko, Pennsylvanians are fortunate that their state has guaranteed their gun rights in other forms.

Robert Robles, U.S. Law Shield of Oklahoma:

Oklahoma is in the 10th circuit and we have the Peterson v. Martinez, 707 F.3d 1197 (2013), case that controls the Federal Courts in the 10th cir. The case holds, “With respect to Peterson’s claims against the Denver sheriff, we conclude that the carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause. The court went on to say, “In Robertson v. Baldwin, 165, U.S./ 275, 17 S.Ct. 326, 41 L.Ed. 715(1897) the Supreme Court stated in dicta that “the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.”
Robert Robles, Independent Program Attorney, U.S. Law Shield of Oklahoma

More recently in District of Columbia v Heller, 554 U.S570, the Court noted that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state anologues,” and explained that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions.” In light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment’s protections.

The way I understand the Peruta case is that local sheriffs will not grant a conceal carry permit without good cause being shown and that California recently banned open carry.  This results in no carry. Comments found online suggest that sheriffs will loosen up their no conceal carry for any reason to allow conceal carry permits for self defense. This is not a fact, but a personal opinion found on some weak internet writings.
For a longer review of the Peruta decision itself, please click here to see our coverage of the case on the U.S. Law Shield blog.

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