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Saturday, June 15, 2024 | Back issues
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California Gun Law Mined in 9th Circuit

SAN FRANCISCO (CN) - The 9th Circuit treaded carefully in a recent hearing about a California man's right to carry a concealed handgun in San Diego.

California law allows the counties to issue permits to allow individuals to carry concealed firearms. The permits are valid statewide, but rural counties are more likely than urban counties to issue them.

Edward Peruta sued San Diego County and Sheriff William Gore in federal court three years ago after Gore rejected his application for a permit to carry a concealed weapon.

Peruta claimed that the county violated his Second Amendment right to carry a handgun for self defense.

A federal judge ruled that Peruta did not have a protected interest in having a concealed-carry permit, and that the county's licensing scheme was lawful.

At a hearing on Peruta's appeal Thursday, Judge Consuelo Callahan noted that the 9th Circuit covers nine states with differing government interests.

She asked Peruta's lawyer if her court could direct a California sheriff to administer his county's concealed carry program.

"Would you envision that California, having more crime and being more populated, would be able to justify different burdens on the right than, say, Alaska, which is more rural, and they have bears running around and people have to shoot bears in order to get to work?" Callahan asked.

With the passage of Assembly Bill 144, California made it illegal this year to openly carry an unloaded handgun.

Peruta, who was joined in his appeal by several individuals and the California Rifle and Pistol Association Foundation, argued that the county's rules, California's ban on the open carry of unloaded firearms, and a general ban on carrying exposed, loaded handguns had combined to unconstitutionally bar anyone from bearing arms.

He says states can regulate the right to carry a firearm, but cannot impose a complete ban.

Because the San Diego sheriff and other California counties may use their discretion to grant or deny a permit to carry a concealed handgun, there is no continuity in the issuance of permits, according to the complaint.

Peruta says the uneven results themselves violate the equal protection clause of the 14th Amendment.

San Diego County's attorney, James Chapin, told the 9th Circuit that state law required the sheriff to make rules.

While the sheriff has a policy to grant concealed-carry permits, he must base a decision to issue a permit on the applicant's need and the local community's interests in limiting the number of permits.

San Diego's crime rate and proximity to the Mexican border create a legitimate governmental interest in controlling to number of handguns possessed outside of homes there, Chapin said.

"Once you set foot outside the home, the governmental interest becomes significantly stronger," he told the court. "There's a lot of things we don't regulate in the home. You can get drunk in your home; you can't be drunk in public."

Peruta has experience with firearms as a former law enforcement officer and military marksmanship trainer, according to the complaint. He says he needs to carry a concealed weapon because his work as a journalist takes him to dangerous and remote locations.

Nonetheless, the sheriff found Peruta had not met the statutory threshold of "good cause" for a permit.

Peruta's attorney, Paul Clement, says the need for self-defense forms "good cause," and that the sheriff's standard effectively asks for an extraordinary cause.

State regulatory regimes would likely have differences, but the U.S. Supreme Court has limited the extent to which states can implement policies that prohibit gun possession, Clement added.

In the 2008 resolution of District of Columbia v. Heller, the U.S. Supreme Court held that the city's prohibition on handgun possession violated a constitutional right to possess a firearm for lawful purposes, such as self-defense.

Since Heller applied only to federal districts, such as the District of Columbia, the court expanded application to states two years later in McDonald v. Chicago.

The 9th Circuit panel asked Thursday if a ruling for Peruta would create a new judicial standard to measure the permitting decisions made by local governments.

Clement, a Washington attorney with Bancroft PLLC, said invalidating San Diego's policy would not cause this result.

Deeming the policy unlawful simply finds that Peruta had a right to a permit because the San Diego County's policy "eliminates any outlet for the ability to carry a firearm for purposes of self defense, and in that way it's just antithetical to the Second Amendment," Clement said.

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