Gun Permit Limits in San Diego Struck Down

(CN) - San Diego County violates the Second Amendment by requiring prospective carriers of concealed weapons to establish a "good cause" beyond simple self-defense, the 9th Circuit ruled Thursday.

Attorney Chuck Michel, west coast council for the National Rifle Association, counsel for the California Rifle and Pistol Association and senior partner with the Long Beach firm Michel & Associates, said that the ruling could have far-reaching consequences.

As opposed to states that do not have permit requirements and states that say they "shall issue" permits unless there is good cause not to do so, California and the seven other states that do not consider self-defense sufficient to justify obtaining a permit are known as "may-issue" states.

"This is a huge win," Michel said in an interview. "If it stands, the precedent from this case is really going to bring California in line with the other 42 states that have shall-issue" permitting or no permitting requirements.

A nearly identical challenge to Orange County's requirement that applicants show good cause is currently stayed pending the outcome of the San Diego case, Michel added.

"Unless the cities and counties see the writing on the wall, there's going to be more lawsuits filed to use this precedent to get rid of the systems that require good cause to get a permit," Michel said.

Edward Peruta, a journalist who says he needs to carry a gun to protect himself, brought the San Diego case after he was denied a permit for a concealed-carry license in 2009.

In a tough-on-guns state like California, gun owners cannot carry either open or concealed handguns in public without a permit, and most people cannot get a permit who are not armored-vehicle guards or retired federal officers have to show a "good cause" as to why they should be allowed to carry a handgun outside the home.

Because San Diego County's list of such good causes does not include self-defense, Peruta, along with several other frustrated applicants and the California Rifle and Pistol Association Foundation, claimed in a federal lawsuit that the permitting process violated the Second Amendment's right to keep and bear arms.

U.S. District Judge Irma Gonzalez ruled for the county, finding that the state and the county had a substantial interest in public safety and that the permitting process legally served that interest.

A divided three-judge appeals panel reversed on Thursday, finding that the "good cause" requirement effectively prohibits the "typical responsible, law-abiding citizen" from bearing arms in public for self-defense.

The majority relied on the U.S. Supreme Court's landmark ruling Heller v. District of Columbia, in which the justices held that the Second Amendment protects an individual's right to possess a firearm for "traditionally lawful" purposes.

Heller established that "the keeping and bearing of arms is, and has always been, an individual right," and that "the right is, and has always been, oriented to the end of self-defense," Judge Diarmuid O'Scannlain wrote for the majority.

"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," O'Scannlain added. "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. 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'." (Brackets in original.)

The majority ruling continues with a free-speech analogy.

"It is as though San Diego County banned all political speech, but exempted from this restriction particular people (like current or former political figures), particular places (like private property), and particular situations (like the week before an election)," O'Scannlain wrote. "Although these exceptions might preserve small pockets of freedom, they would do little to prevent destruction of the right to free speech as a whole." (Parenthesis in original.)

Writing in dissent, Judge Sidney Thomas argued that majority's ruling actually conflicts with Heller and "not only strikes down San Diego County's concealed carry policy, but upends the entire California firearm regulatory scheme."

"A careful examination of the narrow questions before us can only lead to the conclusion that San Diego County's 'good cause' policy falls squarely within the Supreme Court's definition of 'presumptively lawful regulatory measures,'" Thomas wrote. "There is no need to reach any other issue presented in the case. In dealing a needless, sweeping judicial blow to the public safety discretion invested in local law enforcement officers and to California's carefully constructed firearm regulatory scheme, the majority opinion conflicts with Supreme Court authority, the decisions of our sister circuits, and our own circuit precedent."

Washington, D.C.-based attorney and former U.S. Solicitor General Paul Clement argued the case in the 9th Circuit for Peruta and the other plaintiffs. He did not immediately return a request for comment. Nor did attorney James Chapin, who represented San Diego County.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit