A federal appeals court ruled on Thursday that there is no Second Amendment protection for concealed weapons — allowing states to prohibit or restrict the public from carrying concealed firearms.
The en banc opinion by the 9th U.S. Circuit Court of Appeals could set up a new showdown on gun rights at the Supreme Court.
At issue was California’s law on concealed weapons, which requires citizens to prove they have “good cause” to carry concealed firearms to get a license. Plaintiffs challenged guidelines in San Diego and Yolo counties that did not consider general self-defense to be enough to obtain a license.
The 9th Circuit held 7-4 in the case, Peruta v. County of San Diego, that the restrictions on concealed carry are constitutional, ruling that the Second Amendment right to bear arms does not provide a right to carry concealed arms.
“The historical materials bearing on the adoption of the Second and Fourteenth Amendments are remarkably consistent,” wrote Judge William Fletcher, going back to 16th century English law to find instances of restrictions on concealed weapons. “We therefore conclude that the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public.”
Fletcher also cited the most recent Supreme Court cases on gun rights, District of Columbia v. Heller and McDonald v. City of Chicago, which were major victories for gun rights activists, in making his case.
The Heller decision, authored by Justice Antonin Scalia, solidified a Second Amendment right of the public to keep guns, but it specifically noted the right was not absolute, and Fletcher pointed out that Scalia cited restrictions on concealed weapons as a historical example.
The court was careful to make the ruling narrow. The opinion does not say concealed weapons are unconstitutional, nor does it make any decisions about openly carrying weapons in public.
The case was a blow for gun rights advocates, and sets up the fight on gun rights for the Supreme Court to consider, says UCLA law professor and gun law expert Adam Winkler.
“This case raises the next great question for the Supreme Court: Does the Second Amendment guarantee a right to carry guns in public? And if so, what kind of licensing can states use to permit people to carry concealed weapons?” Winkler said.
The Supreme Court would not necessarily have to take up the case. The ruling does not create a substantive divide among different circuit courts in the U.S., one of the major factors the court considers in weighing which cases to take.
Four judges dissented from the ruling, with the main dissent by Judge Consuelo Callahan arguing that California’s laws taken together amount to a substantial restriction on citizens’ right to bear arms for self defense, as protected by the Second Amendment.
Whether the court does or does not take the case, the early 2016 death of Scalia looms large over it. Scalia authored Heller, the most substantial gun ruling in modern history of the court. And Republicans in the Senate have refused to consider President Barack Obama’s nominee for replacing Scalia on the court, meaning the eight justice panel can split 4-4.
Without a ninth justice, Winkler said, it’s unlikely the court would take up the case, even with Scalia’s allies on the issue Justices Samuel Alito and Clarence Thomas still on the court.
Obama’s nominee to replace Scalia, Judge Merrick Garland, was chosen in large part for his moderate record. But one of the most substantial conservative arguments against Garland has been that his record on guns is too liberal, though his written record on the issue is limited.
A partner for the law firm that helped argue on behalf of Peruta said that the plaintiffs were “disappointed” with the ruling but not surprised. He also said appealing to the Supreme Court is not a guarantee yet.
“An appeal to the Supreme Court is possible,” said Chuck Michel, senior partner at Michel and Associates. “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.”
The case was primarily argued by Paul Clement, a former solicitor general under the George W. Bush administration and one of the top litigators for conservative causes at the Supreme Court in recent years.
Ever since the Supreme Court decided the Heller decision and a follow up case two years later, the Supreme Court has declined to take another major second amendment case, a frustration Clement cited in a 2013 filing with the court.
In the years since Heller had been decided many expected a “major consideration” or extant firearms laws, Clement wrote. “Instead, jurisdictions have engaged in massive resistance to the clear import of those landmark decisions, and the lower federal courts, long out of the habit of taking the Second Amendment seriously, have largely facilitated that resistance.”
California state Attorney General Kamala Harris said the 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.”