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Ninth Circuit Victory: The End of the Beginning

Ninth Circuit Victory: The End of the Beginning

Think of this as a preview of my next Shotgun News column. We have just enjoyed an astonishing victory in the U.S. Ninth Circuit Court of Appeals. Yes, theĀ Ninth Circuit! The case is Peruta v. County of San Diego (9th Cir. 2014). The very restrictive concealed weapon permit policies of the San Diego County sheriff's office (and which are shared by nearly every county in California where a law-abiding person might have legitimate reason to carry a gun) have been ruled as violating the Second Amendment.

It is a very long decision. I am still digesting it (and yes, my first step was to see how many of my law review articles they cited: two), but the essence was this:

  1. The Second Amendment protects an individual right to self-defense based on D.C. v. Heller (2008).

  2. The Fourteenth Amendment imposes the protections of the Second Amendment on the states based on McDonald v. Chicago (2010).

  3. California has for a long time prohibited its citizens from carrying loaded firearms. Unloaded guns could be carried openly--until California decided to ban open carry of unloaded firearms. Concealed carry required a permit that, at least for residents of San Diego County, were essentially unavailable.
  4. California was free to ban open carry of loaded firearms, or concealed carry of loaded firearms, but banning them both (as is true for the vast majority of law-abiding adults there) effectively prohibited bearing arms for self-defense.

The San Diego Sheriff and other law enforcement agencies throughout the state are going to have to change their concealed weapon permit issuance policies, and the decision makes it pretty clear that they are going to have to do what Illinois did in response to the recent Moore v. Madigan (7th Cir. 2012) decision: come up with a shall-issue concealed weapon permit policy. The alternative is to appeal the decision.

The U.S. Supreme Court is already confronting an interesting situation: different courts of appeals have come to different conclusions. The 2nd Circuit has upheld New York State's discretionary permit issuance policy. Ditto for the 3rd Circuit with Maryland's discretionary permit issuance policy. Illinois chose not to appeal its loss before the 7th Circuit. Now the 9th Circuit has agreed with the 7th Circuit.

This is called a circuit split. While the U.S. Supreme Court is not actually required to hear an appeal when the circuits split, if the question is an important issue of constitutional law, they usually do. And not a moment too soon. At this point, the five justices that ruled in our favor in McDonald v. Chicago (2010) are still there--not yet replaced with President Obama or President Bill Clinton's picks. I think I smell a disaster for the gun control crowd coming, and a victory for Americans who still live in the gun control crazy states.


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