San Diego County Defends Concealed Gun Law

SAN FRANCISCO (CN) – San Diego County defended its concealed weapons law Tuesday to the Ninth Circuit sitting en banc, after a three-judge panel found the law violated the Second Amendment.
     Edward Peruta sued San Diego County and Sheriff William Gore in 2009 after Gore rejected his application a concealed weapon permit. Peruta claimed the county violated his constitutional 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, but a Ninth Circuit panel reversed in February 2014.
     In California, gun owners cannot carry guns openly or concealed in public without a permit. It is difficult to get a permit unless one is an armored vehicle guard or a retired federal officer, unless the applicant can show “good cause” why they should be allowed to carry a handgun outside the home.
     At Monday’s rehearing, Paul Clement, with the Bancroft low office of Washington, D.C., argued for Peruta before 11 judges.
     Clement said Peruta takes issue not with California’s statutory scheme for concealed carry permits, but with San Diego’s interpretation of the law’s “good cause” standard and policy.
     “The government cannot completely forego the avenue for exercising an important Second Amendment right,” he said.
     “We don’t have beef with California’s statutes. Our objection is to the county’s policy and the way the county interprets good cause.”
     Judge Consuelo Callahan pointed out that the Supreme Court “doesn’t seem to like to talk about the Second Amendment very often.”
     “Can we read any tea leaves from that?” she asked.
     Clement bypassed the question and said, “We’re not here to take issue with the idea of a licensing regime generally. But I don’t think it can be that you only get to show good cause if you show that you have a better reason for the firearm than your fellow citizen. The people have the right to possess a firearm for purposes of self-defense.”
     Callahan asked: “So under your theory, any self-defense should be justifiable as good cause?”
     Clement said his client’s argument is that the county policy is “that the showing of good cause has to be extraordinary vis-à-vis your fellow citizen.”
     Clement said San Diego’s policy cannot survive scrutiny, and he dismissed its argument from an expert on gun violence, which he said “doesn’t get to the relevant question.”
     “The declaration says one, less guns less violence, and two, less concealed guns, less violence,” Clement said. “But the relevant question is, what if there are less concealed licensed guns?”
     Clement argued that California counties with fewer restrictions on concealed carry permits could serve as “obvious comparators” for the case, but Judge William Fletcher said those counties’ laws were too new to be used as examples.
     “You can’t look at something that’s been going on for six months and draw legitimate conclusions,” Fletcher said.
     California Solicitor General Edward DuMont argued for San Diego County.
     He said the case seems focused on the individual exercise of discretion by the sheriff, but has been decided on “much broader legal grounds.”
     “There’s not one statewide definition for good cause,” he said.
     “But the Second Amendment doesn’t change county to county, right?” Callahan asked.
     Judge Richard Paez asked whether it is the state’s view that the Supreme Court ruling in Heller v. District of Columbia did not apply to the case at hand.
     In Heller, the justices ruled that the Second Amendment protects an individual’s right to possess a firearm for “traditionally lawful” purposes.
     “My friends on the other side think they have a right to do exactly what they want to do, which is carry a gun outside the home,” DuMont said. “It is hard to read Heller and decide that there is no purchase for the Second Amendment outside the home.”
     He invoked California’s “rich tradition of regulation” and said that San Diego’s restrictions are a regulation, not a ban.
     “We have taken the view that we should defend the statutory structure on the basis of the statutes as they are now,” DuMont said.
     Clement returned for an energized rebuttal.
     “If I heard the other side correctly, they essentially concede that the Second Amendment applies outside the home,” he said. “We’re not asking for a constitutional right to concealed carry. We’re asking for a constitutional right to some mechanism that our friends concede we have.”

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