(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.”CNN’s Ariane de Vogue contributed to this report
This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
The en banc court affirmed the district courts’ judgments and held that there is no Second Amendment right for members of the general public to carry concealed firearms in public.
Appellants, who live in San Diego and Yolo Counties, sought to carry concealed firearms in public for self-defense, but alleged they were denied licenses to do so because they did not satisfy the good cause requirements in their counties. Under California law, an applicant for a license must show, among other things, “good cause” to carry a concealed firearm. California law authorizes county sheriffs to establish and publish policies defining good cause. Appellants contend that San Diego and Yolo Counties’ published policies defining good cause violate their Second Amendment right to keep and bear arms.
The en banc court held that the history relevant to both the Second Amendment and its incorporation by the Fourteenth Amendment lead to the same conclusion: The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment. Therefore, because the Second Amendment does not protect in any degree the right to carry concealed firearms in public, any prohibition or restriction a state may choose to impose on concealed carry – including a requirement of “good cause,” however defined – is necessarily allowed by the Amendment. The en banc court stated that there may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public, but the Supreme Court has not answered that question.
The en banc court granted the motion to intervene by the State of California, which sought intervention after the San Diego Sheriff declined to petition for rehearing en banc following the panel’s decision. The en banc court held that under the circumstances presented here, California’s motion to intervene was timely.
Concurring, Judge Graber, joined byChief Judge Thomas and Judge McKeown, wrote separately only to state that, even if the Second Amendment applied to the carrying of concealed weapons in public, the provisions at issue would be constitutional.
Dissenting, Judge Callahan, joined by Judge Silverman as to all parts except section IV, by Judge Bea, and by Judge N.R. Smith as to all parts except section II.B, stated that in the context of present-day California law, the defendant counties’ limited licensing of the right to carry concealed firearms is tantamount to a total ban on the right of an ordinary citizen to carry a firearm in public for self-defense. Thus, plaintiffs’ Second Amendment rights have been violated.
Dissenting, Judge Silverman, joined by Judge Bea, would hold that the challenged laws are unconstitutional under the Second Amendment because they do not survive any form of heightened scrutiny analysis.
Dissenting, Judge N.R. Smith stated that he joined the dissent of Judge Callahan but wrote separately only to express his opinion that the appropriate remedy is to remand this case to the district courts to allow them to initially determine and apply an appropriate level of scrutiny.