Featured Peruta v. San Diego Alexandria Kincaid July 7, 2017 Join the Conversation Gun Owners Lost the Battle but may (Eventually) Win the War Most gun owners, particularly those in California, relished a fantasy in which the Supreme Court of the United States agreed to hear the case of Peruta v. San Diego and set the Ninth Circuit Court of Appeals straight in its failure to protect the right to carry a firearm in public. These gun owners hoped that the SCOTUS would step-in, overturn the 2016 Ninth Circuit decision holding that the Second Amendment does not protect a right to carry a concealed firearm, and on top of it, loudly proclaim that the Second Amendment protects a right to keep and bear arms in some manner (open or concealed) outside of one’s own home. Last week’s refusal by the SCOTUS to grant certiorari, the legal term for hearing the case and deciding this question, was a huge disappointment to those gun owners. But to many pro-Second Amendment lawyers and citizens, the denial of cert was not a surprise. Instead, it was a relief. Their reasoning is even though we have a new President and a new Supreme Court Justice, the balance of the Supreme Court has not yet tipped with any certainty that Second Amendment cases, if heard, will result in wins for the gun community. This logic is supported by the SCOTUS’s action, and blatant inaction, with respect to Second Amendment cases historically. To the dismay and dissent of Justice Thomas and the late Justice Scalia, the SCOTUS has, for seven years, refused to provide us with any interpretation of the Second Amendment. America last heard from the Court on the meaning of the Second Amendment when it issued decisions in the cases of District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010). These cases were wins for the Second Amendment, because they abolished federal and state handguns bans and interpreted the Second Amendment to mean that we have an individual right to keep and bear arms for self-defense. The vote to grant us this protection was only five justices in favor and four against. The SCOTUS’s failure to further interpret and protect the Second Amendment since 2010 is why presenting any Second Amendment cases to the current Court will be very risky business. While our new President selected, and Congress approved, a new constitutional conservative Supreme Court Justice, Neil Gorsuch, he replaced a constitutional conservative, the late Justice Antonin Scalia. Nothing in the total make-up of the SCOTUS and the nature of the justices who decide these cases has changed. For example, Justice Scalia was the only Justice who dissented with Justice Thomas the SCOTUS’s refusal to hear a case about so-called assault weapons and large-capacity magazine bans. Similarly, Neil Gorsuch was the only justice who joined in a dissenting opinion with Justice Thomas on the SCOTUS’s refusal to hear the Peruta case. It seems obvious America will need at least one more constitutional conservative justice to replace one of the current liberal-progressive, or swing-voting justices, before there will be a shift to the right. The Peruta Question Peruta is not an open carry case. It is not merely a concealed carry case, either. The issue in Peruta derives from the intersection of California’s restrictions on both open and concealed carry, which amount to a complete prohibition on carrying a loaded, accessible, self-defense firearm outside the protective walls of a person’s own home. Simply put, with very limited exceptions, Californians cannot openly carry a firearm, and are also are not guaranteed the ability to carry a concealed firearm. In effect, they have no legal means to carry a firearm outside their own homes. James Dodd, one of seven plaintiffs in the Peruta case, explained that the Ninth Circuit completely “dodged the bullet” and failed to answer this basic question, which has always been the question in the case – do Californians have the right to carry, in some manner, a defensive firearm outside their own home? But instead of answering this question, the Ninth Circuit focused on the question of concealed carry, and held that the Second Amendment has never guaranteed a right to carry a concealed firearm in public. Dodd said,“The Ninth Circuit said in their ruling that concealed carry was not a right addressed in the Constitution and in our history but ignored the legal questions raised in the our briefs.” In addition to ruling that the Second Amendment does not protect a right to carry a concealed firearm, the Ninth Circuit refused to answer whether the Second Amendment protects a right to openly carry a firearm in public. In their appeal to the SCOTUS, the Peruta plaintiffs clearly presented the question of whether Americans have a right to carry self-defense firearms outside their homes at all regardless of whether the right is open or concealed. There is no question that Americans need an answer to this extremely important question. Why Did the Ninth Circuit “Dodge the Bullet” and Focus on Concealed Carry? The Ninth Circuit found legal precedent from as far back as 1897 for its conclusion that the Second Amendment does not protect a right carry a concealed firearm. In focusing on concealed carry, and avoiding the issue of any type of carry outside the home, the Ninth Circuit had on its side case law supporting licensing fees, registration, and educational requirements before a person can enjoy the privilege of carrying a concealed firearm. Justice Scalia even wrote in the Heller decision that restrictions on the carrying of concealed firearms may be constitutional. The Ninth Circuit, in upholding California’s concealed carry permitting system, decided: [T]he Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public. In so holding, we join several of our sister circuits that have upheld the authority of states to prohibit entirely or to limit substantially the carrying of concealed or concealable firearms. The Ninth Circuit then cited four other Circuit Court decisions that upheld laws prohibiting or substantially limiting the ability to carry concealed firearms. These federal circuit courts of appeals include the Second, Third, Fourth, and Tenth Circuit Courts of Appeals. Justice Thomas and Justice Gorsuch, in their opposing opinion to the SCOTUS refusal to hear the Peruta case, did not let the Ninth Circuit get away with skirting the issue. In their written opinion, they pointed to the Ninth Circuit’s obvious failure to answer the ultimate question presented by the case: Had 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. This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion. As we explained in Heller, to “bear arms” means to “‘wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.' . . . The most natural reading of this definition encompasses public carry. I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen. Why Didn’t the SCOTUS Hear this Case? Justice Thomas and Justice Gorsuch indicated that SCOTUS should have granted certiorari for the Peruta case. They pointed out that it has been over seven years since the SCOTUS heard argument on a Second Amendment case. During that same time period, the SCOTUS has heard 35 cases regarding the First Amendment and 25 cases about the Fourth Amendment. According to the SCOTUS website, of the 7,000 to 8,000 certiorari petitions filed each term, the court grants certiorari and hears oral argument in only about 80. Granting a cert petition requires the votes of four justices. A major consideration for the Justices in deciding which cases to hear is whether courts hearing a similar case (like the right to carry outside of your own home) have created the proverbial cluster. SCOTUS is unlikely to hear a case unless a state’s highest court or federal court of appeals issues a decision that conflicts with another similar court on a question of federal law. Legal questions that involve the interpretation and meaning of the United States Constitution are clearly questions of federal law. Justice Thomas and Justice Gorsuch pointed out that twenty-six states have asked the SCOTUS to resolve the issue presented in Peruta. They also stated that at “least four other Courts of Appeals and three state courts of last resort have decided cases regarding the ability of States to regulate the public carry of firearms. Those decisions . . . have produced thorough opinions on both sides of the issue.” In other words, the cluster has been created, and the courts are split on how to interpret the Second Amendment with respect to our right to carry outside of our homes. What this means for the entire country The Ninth Circuit’s jurisdiction embraces nine states (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) which includes roughly 60 million people. Residents in other locations, such as New York, New Jersey, and Maryland, are similarly being deprived of their right to carry outside their homes. Until the SCOTUS provides an opinion on your right to carry outside your own home, your state could pass laws that prevent you from doing so as well. Will the SCOTUS hear any 2A cases? It should be obvious that what, exactly, the Second Amendment protects is still being decided by the court system. 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 protected right. In other locations, it is only a privilege granted at the whim of a sheriff. Until the balance of the United States Supreme Court shifts and they provide Americans with an answer, we are at the mercy of judges deciding these extremely important issues on a case-by-case basis. To some courts, the Second Amendment is 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.” About the Author Alex Kincaid is a former elected district attorney and current firearms law attorney with over 19 years experience. She is an active proponent of the Second Amendment, a legal analyst, and author. 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