The last time I checked, neither state government nor the Courts had any power, real or imagined, to amend the U.S. Constitution. A recent ruling from the 9th Circuit, however, suggests maybe I need to check again. In a decision that confounds common sense, plain reading of the Constitutional text as much as it creates a legal non-sense, a divided 9th Circuit upheld Cal. Penal Law §25400 and §25655, which generally makes it unlawful to conceal carry firearms in public AND limits a license to conceal-carry to a finding of “good cause” by the issuing sheriff. Peruta v. San Diego, 2016 WL 3194315 (9th Cir. June 9, 2016).
The procedural history of this case is itself dubious. First, it should be noted that Peruta technically consisted of consolidated cases wherein plaintiffs challenged essentially the same local (county-level) iteration of §25400 and §25655. The named plaintiff, Peruta, brought a Second Amendment suit against the County of San Diego. Interestingly also, this case was the 9th Circuit’s rehearing and reversal of its own decision in Peruta I (742 F.3d 1144 (9th Cir. 2014)) wherein an en banc panel of the 9th had previously found good cause requirements unconstitutional. The Sheriff of the San Diego, after Peruta I, declined to appeal for a rehearing, but that’s where the state of California intervened – prompting a hearing before the full Court – Peruta II. San Diego county’s iteration of the good cause requirement defines such as…
…a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way. Simply fearing for one’s personal safety alone is not considered good cause.
The other case – Richards v. Prieto, Cnty. of Yolo, involved the named Plaintiff, Richards, bringing suit on the same grounds as plaintiff Peruta, but against Yolo County’s own version of the good cause requirement. Amazingly, the County of Yolo does not bother to even define good cause (as if the concept wasn’t vague and arbitrary enough under California state law), rather the County instructs its residents that there are certain circumstances which, definitively, do or do not give rise to good cause. Among those circumstances:
Victims of violent crime and/or documented threats of violence [yep]
Self protection and protection of family [nope]
Business owners who work all hours in remote areas and are likely to encounter dangerous people and situations [yep]
Personal safety due to job conditions or duties placed on the applicant by their employer [nope]
In a written opinion of truly amazing acrobatics – The 9th Circuit somehow sidestepped the very plain language of the Second Amendment, and also putatively avoided going as far as (explicitly) finding that the Second Amendment ensures no right, whatsoever, to publicly possessing a firearm for self-protection(“That question was left open by the Supreme Court in Heller, and we have no need to answer it here.”) The problem is, California law also forbids open-carry, pursuant to Cal. Penal Law §26350. Therefore, as a practical matter now, a private citizen cannot legally possess firearms in public for the purpose of self-protection. Oh well, the catch-22 there was clearly not a concern for the Court. Isn’t the narrow grounds approach to jurisprudence refreshing?
Irrespective of whether the reader belongs to the so-called textualist school of judicial philosophy, or that of the living Constitution, the ruling has to be seen as a baffling one. I could have sworn that the Second Amendment states, in relevant part, “…the right to keep and bear arms shall not be infringed.” Webster’s Dictionary includes the following definition of the word “bear” as including “to produce” and/or “to bring forth”. Further, the Constitutional Convention’s inclusion of “bear” after stating “keep” rationally indicates that keeping and bearing are not one in the same thing – that the latter is an additional right, not to be confused with the former. Sure, the Court engaged in an expansive quest for historical precedent to state’s prohibiting public carrying of weapons, but precedents can be found from the reverse side as well. The writer finds it indicative of the weakness of the Court’s opinion that a majority of the 9th Circuit’s historical assessment looked to monarchical English history, first and foremost.
Well there you have it, the 9th has effectively taken the “bear” out of “…keep and bear arms…” – an amendment, as I see it. Who needs Congress or a Constitutional Convention when you have overreaching judges.