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States can restrict concealed weapons, appeals court rules
States can restrict concealed weapons, appeals court says
Story highlights
- Any potential showdown at the Supreme Court will be shaped by the vacancy left by the death of Justice Antonin Scalia
- California's law on concealed weapons requires citizens to prove they have a good reason to carry
(CNN)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.
The
case was 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."
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