This isn’t a brand-new interpretation of the law, but it’s yet another appeals court—this time in San Francisco—ruling that the Second Amendment of the Constitution (see below) does not mean that people have a “right” to carry concealed weapons in public. According to the New York Times, this ruling (7-4 by the Ninth Circuit Court of Appeals) not only overturned a court decision in the same circuit, but came in response to a challenge to California’s very stringent policy for allowing “concealed carry”: you have to show a very good reason for getting such a permit. (The suit was brought by Californians who were denied those permits.) And the new decision, absolutely in line with those of other federal appeals courts, is a severe setback for gun nuts and the National Rifle Association (NRA).
First, the Second Amendment:
Although the Supreme Court has rule that this means it’s constitutional for private citizens to have guns, and handguns, I’ve always disagreed. The Amendment mentions gun ownership for purposes of having a “well regulated militia,” and that’s not private ownership of guns for your own protection. (I’m not alone in this opinion: others who know more than I, like Garry Wills, agree.)
Regardless, although having guns still seems to be a constitutional right, concealing them in public places is not. From the NYT:
“Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public,” the court said in a ruling written by Judge William A. Fletcher.
. . . “This is a huge decision,” said Adam Winkler, a professor of constitutional law at the University of California, Los Angeles, School of Law. “This is a major victory for gun control advocates. “
The Supreme Court has ruled that individuals have a right to possess a weapon in their home. Thursday’s ruling centers on the next frontier in the gun-control debate.
“Probably the most important battleground of the Second Amendment has been whether there is a right to carry guns outside the home, and if there is, to what extent can states and localities regulate that right,” said Jonathan E. Lowy, the director of the Legal Action Project at the Brady Center to Prevent Gun Violence.
If you can’t conceal your weapon outside the home, then you have to carry it in your hand or on your hip, and that’s what you’ll have to do if you want a gun in California.
Further, it’s unlikely that an appeal would be heard by the Supreme Court (though the losers vow to appeal), because all appellate courts have agreed with the decision in California. The Supreme Court is loath to take up cases that have such a unanimity of opinion in lower courts.
Of course the NRA has issued its apocalyptic response:
“This decision will leave good people defenseless, as it completely ignores the fact that law-abiding Californians who reside in counties with hostile sheriffs will now have no means to carry a firearm outside the home for personal protection,” Chris W. Cox, the executive director of the National Rifle Association Institute for Legislative Action, said in a statement.
If you want to see the full court ruling, click on the screenshot below. Let me the take on this decision Greg Mayer emailed me, as he’s read the entire 89-page document:
I’ve just read the historical part of the court majority’s decision. It’s brilliant. They are aware that “bear arms” meant being in the militia, but that to argue that in this case, they would be defying the US Supreme Court. (They of course don’t come out and say this directly.) Rather, picking up on the Supreme Court’s holding that the Second Amendment codified a pre-existing right inherited from English law, they examine English law closely, and show that the prohibition of concealed weapons has been part of English law since the 13th century, and that this prohibition has survived the vicissitudes of dynastic and religious revolution (so that it can’t be said that the 2nd Amendment is about some later development in English law). To reinforce this, they then pick up on another part of the Supreme Court’s earlier analysis, which used the 14th Amendment to extend the 2nd Amendment to the states. [JAC: The 14th Amendment guarantees equal protection of the laws to all United States citizens.] The Supremes said then that because a majority of states had Second Amendment-like laws, then the 14th Amendment therefore extended the 2nd Amendment to the states. So, for the current case, the majority decision shows that a clear majority of states prohibited concealed carry and/or gave legislatures broad powers of weapon regulation, so that, again, the pre-existing right being incorporated does NOT include concealed weapons.
It’s clear from their historical review that the right to bear arms is intimately linked to collective self defense (i.e., the militia or military), but, being barred from using this reasoning by the Supreme Court’s ruling that bearing arms is not connected to being in a militia, they find a way around that by showing that carrying concealed arms was not considered by the English to have anything to do with bearing arms (however that’s interpreted, even by the Supreme Court’s defective interpretation), and thus concealed arms are not within the ambit of the 2nd Amendment.
It’s really quite clever, and shows that some lawyers are really smart and knowledgeable.
And for a hilarious but pretty accurate piece on the Second Amendment’s meaning, see this short piece from the January 7, New Yorker.
h/t: Greg Mayer, Barry