9th Circuit Upholds Tough California Gun Laws

SAN FRANCISCO (CN) — Finding no Second Amendment right to carry a concealed firearm in public, the en banc Ninth Circuit upheld tough California gun laws Thursday.

"Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public," Judge William A. Fletcher wrote for the majority.

The case involves twin challenges by Edward Peruta and Adam Richards to policies in San Diego and Yolo Counties that gun owners seeking concealed-carry licenses must show "good cause."

Though federal judges granted summary judgment for the counties in each case, separate three-judge panels of the Ninth Circuit reversed in 2014, finding that both San Diego and Yolo's policies violated the Second Amendment.

The federal appeals court set those decisions aside pending a consolidated review by the full Ninth Circuit.

It affirmed 7-4 Thursday.

"The Second Amendment may or may not protect, to some degree, a right of a member of the general public to carry firearms in public," Fletcher wrote. "But the existence vel non of such a right, and the scope of such a right, are separate from and independent of the question presented here. We hold only that there is no Second Amendment right for members of the general public to carry concealed firearms in public."

The judges emphasized that their holding does not assess whether the Second Amendment protects "some ability" to carry firearms in public — an issue that the U.S. Supreme Court tackled in the landmark case Heller v. District of Columbia, which says the Second Amendment protects an individual's right to possess a firearm for "traditionally lawful" purposes.

Launching into an exhaustive overview of roots of concealed-weapons regulation — from 13th century restrictions in England to consistent prohibition by the American colonies and states both pre and post-Civil War — the panel reasoned that "the Second Amendment has not been generally understood to protect the right to carry concealed firearms."

Chief Judge Sidney Thomas joined Fletcher's lead opinion, along with Judges Harry Pregerson, Susan Graber, Margaret McKeown, Richard Paez and John Owens.

Judge N. Randy Smith, Judge Carlos Bea, Judge Consuelo Callahan and Judge Barry Silverman dissented.

In her opinion concurring with the majority, Graber found California justified in giving counties the authority to restrict the carrying of concealed firearms in public, as they strike a balance between allowing people to protect themselves and reducing gun violence.

Judge Silverman disagreed, writing in his dissent that neither California nor San Diego and Yolo Counties "provided any evidence, let alone substantial evidence, specifically showing that preventing law-abiding citizens, trained in the use of firearms, from carrying concealed firearms helps increase public safety and reduces gun violence."

He added: "California argues that local officials are best situated to determine what applicants should be required to show in order to satisfy the 'good cause' requirement; and, therefore, it is reasonable to confer this discretion to its county sheriffs. However, it does not appear that California's sheriffs are exercising this discretion in a rational way."

Judge Bea joined Silverman's opinion and a separate fiery by Callahan that says the majority "eviscerates" Second Amendment rights.

Pointing to both Heller and McDonald v. Chicago, another watershed Supreme Court case ruling that the Second Amendment applies to the states, Callahan said: "any fair reading of Heller and McDonald compels the conclusion that the right to keep and bear arms extends beyond one's front door."

"Like the rest of the Bill of Rights, this right is indisputably constitutional in stature and part of this country's bedrock," Callahan added.

Paul Clement of Bancroft PLLC in Washington, D.C., who argued the case on behalf of Peruta, did not immediately return a phone request for comment.

"My clients are disappointed, but given the political inclinations of the judges on this panel, not surprised by this ruling. An appeal to the Supreme Court is possible," Peruta attorney Chuck Michel said in an email. "But significantly, the Peruta decision specifically avoided answering the critical legal question of whether, if concealed carry is prohibited, some form of open carry of firearms must be allowed. California law bans open carry, so the constitutionality of that ban will now have to be tested."

California Attorney General Kamala Harris applauded the court's findings.

"The devastating impact gun violence has on our communities underscores the need for common sense gun safety laws," Harris said in a statement. "The court's decision is a victory for public safety and sensible gun safety laws. The ruling ensures that local law enforcement leaders have the tools they need to protect public safety by determining who can carry loaded, concealed weapons in our communities."

Follow @MariaDinzeo

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