Ninth Circuit Recognizes Right to Bear, Not Just Keep, Arms

California law forbids the carrying of firearms in public places without a license and provides that the issuance of such a license requires “good cause.” San Diego County, as part of its implementation of that law, has set a number of restrictive policies on what it will consider good cause, which must be exceptional circumstances (“distinguish[ed]… from the mainstream”), and it specifies that concern for “one’s personal safety alone is not considered good cause.”

That’s a policy in considerable tension with the language of the Second Amendment, which protects individuals’ right not only to “keep” arms, but also to “bear” them. What does the verb “bear” mean in this context?  That has given rise to considerable dispute, and some federal courts, such as the Third Circuit U.S. Court of Appeals, appear to believe that it provides very little protection for individuals’ right to possess guns outside the home. In a case last year by the name of Drake v. Filko – now the subject of a certiorari petition to the Supreme Court, as Ilya explained yesterday – the Third Circuit upheld a regulatory regime under which “virtually nobody in New Jersey can use a handgun to defend themselves outside their home.”

Today the Ninth Circuit U.S. Court of Appeals stepped forward to defend the individual rights that the Third Circuit would not. It ruled that “San Diego County’s ‘good cause’ permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.” It emphasized, as the Supreme Court had done in Heller, that the individual right in question is compatible with considerable regulation of such matters as the carrying of firearms in sensitive places (government buildings), by persons of questionable capacity, and so forth. But it went on, quoting McDonald, to get at the wider constitutional issue (footnotes omitted):

We are well aware that, in the judgment of many governments, the safest sort of firearm-carrying regime is one which restricts the privilege to law enforcement with only narrow exceptions. Nonetheless, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table… . Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court [or ours] to pronounce the Second Amendment extinct.”  Nor may we relegate the bearing of arms to a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.”  

Part of what makes the new opinion in Peruta v. County of San Diego exciting is the talent ranged on both sides. Today’s 77-page majority opinion was written by highly regarded Judge Diarmuid O’Scannlain, a well-known Reagan appointee, joined by Judge Consuelo Callahan; a strongly worded 48-page dissent was penned by Judge Sidney Thomas, who’s been spoken of (“very smart and very liberal”) as a possible future Obama nominee to the Supreme Court.

Especially when set alongside rulings like the Third Circuit’s, today’s news makes it likely that the scope of the individual right to firearms will be teed up for further Supreme Court review sooner rather than later.