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September 7, 2016
  Peruta v. County of San Diego - Ninth Circuit
Headline: The Ninth Circuit concludes that the protection of the Second Amendment - whatever the scope of that protection may be - does not extend to the carrying of concealed firearms in public by members of the general public.

Areas of Law: Constitutional Law, Second Amendment

Issues Presented: Whether the Second Amendment protects the ability to carry concealed firearms in public.

Brief Summary: The Ninth Circuit, sitting en banc, affirmed the findings of the district courts that the policies of San Diego County and Yolo County did not violate the Second Amendment. On appeal, the plaintiffs, who were denied licenses to carry a concealed firearm for failing to establish sufficient good cause under county policy, argued that the counties' good cause requirements for concealed carry violate the Second Amendment. Following the decisions of Dist. of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010), the Ninth Circuit engaged in a four-part historical inquiry of the Second Amendment and Fourteenth Amendment and found that based upon the historical materials, from English law in 1299 to Robertson v. Baldwin, 165 U.S. 275 (1897), 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.

Significance: The Ninth Circuit, sitting en banc, concluded 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. As such, the Ninth Circuit held that the Second Amendment necessarily allows a state to choose to impose any prohibition or restriction on concealed carry, including a requirement of "good cause," however defined.

Extended Summary: Under California law, carrying concealed firearms in public, whether loaded or unloaded, is generally prohibited. Cal. Penal Code § 25400. However, Cal. Penal Code § 2655 provides that the prohibition of § 25400 does not apply to those who have been issued licenses to carry concealed weapons. Cal. Penal. Code § 26150(a), authorizes the sheriff of a county to issue a concealed carry license to a person upon proof of the following: (1) the applicant is of good moral character; (2) good cause exists for issuance of the license; (3) the applicant is a resident of the county or a city within the county, or the applicant's principal place of employment or business is in the county or a city within the county and the applicant spends a substantial period of time in that place of employment or business; and (4) the applicant has completed a course of training as described in Cal. Penal Code § 26165. Cal. Penal Code § 26160 also requires sheriffs and municipal police chiefs to "publish and make available a written policy summarizing the provisions" of Cal. Penal Code §§ 26150(a) and 26155(a).

Pursuant to Cal. Penal Code § 26160, the San Diego County Sheriff's Department defined "good cause" to mean, inter alia:

a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm's way. Simply fearing for one's personal safety alone is not considered good cause. This criterion can be applied to situations related to personal protection as well as those related to individual businesses or occupations.

Unlike San Diego County, the published policy of Yolo County does not define "good cause;" instead, Yolo County provides examples in which "good cause" exists, such as: (1) victims of violent crime and/or documented threats of violence; (2) business owners who carry large sums of cash or valuable items; and (3) business owners who work all hours in remote areas and are likely to encounter dangerous people and situations. Yolo County similarly provides examples where "good cause" does not exist, such as: (1) recreation in remote areas; (2) hunting or fishing; (3) self-protection and protection of family without credible threats of violence; (4) employment in the security field; and (5) personal safety due to job conditions or duties placed on the applicant by the employer.

Plaintiffs, Edward Peruta ("Peruta") and Adam Richards ("Richards") (collectively, "Plaintiffs"), residents of San Diego County and Yolo County, respectively, sought to obtain a license to carry a concealed firearm, but were denied for failing to establish good cause under county policy. Plaintiffs brought separate suits on Second Amendment grounds, challenging the two counties' interpretation and application of the statutory good cause requirement under California law.

The district courts granted summary judgment in each case on grounds that the counties' policies did not violate the Second Amendment; however a divided Ninth Circuit panel reversed both decisions. As to Peruta, the Ninth Circuit panel held that San Diego County's policy violated the Second Amendment because the Second Amendment required that "the states permit some form of carry for self-defense outside the home." Peruta v. Cty. Of San Diego, 742 F.3d 1144, 1172 (9th Cir. 2014). As to Richards, the Ninth Circuit panel held that in light of its holding in Peruta, the Yolo County policy also violated the Second Amendment. Richards v. Prieto, 560 Fed. Appx. 681 (9th Cir. 2014).

On appeal to the Ninth Circuit, sitting en banc, faced the issue of whether the Second Amendment protects, in any degree, the ability to carry concealed firearms in public.

The Ninth Circuit was primarily guided by two Supreme Court decisions, Dist. of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010).

In Heller, the plaintiff challenged a District of Columbia statute that completely banned the possessions of handguns in the home and required that any lawful firearm in the home be rendered inoperable by either being disassembled or bound by a trigger lock at all times. 554 U.S. at 628. The Supreme Court interpreted the phrase "shall not be infringed" to mean that the Second Amendment was a codified pre-existing individual right to keep and bear arms for self-defense and struck down the challenged statute. Id. At 635. Notably however, the Supreme Court stated that the rights secured by the Second Amendment were not unlimited. Id. at 626-27.

In McDonald, the plaintiffs challenged laws of the City of Chicago and the Village of Oak Park, a Chicago suburb, which effectively banned handgun possession by almost all public citizens. 561 U.S. at 742. The Supreme Court held that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and that it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system or ordered liberty. Id. at 777-78. As such, the Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States, and therefore to handguns. Id. at 744-45.

Following Heller and McDonald, the Ninth Circuit engaged in the same four-part historical inquiry followed by the Supreme Court and the Ninth Circuit began its historical analysis by finding that by the end of the eighteenth century, when the Second Amendment was ratified, English law had for centuries, from Edward I in 1299 through the English Bill of Rights in 1689, consistently prohibited carrying concealed arms in public. The Ninth Circuit also found that in Colonial America, the law with respect to concealed weapons did not significantly differ from the law in England and that some colonies, such as Massachusetts Bay, adopted English law verbatim.

In the second part of its historical analysis, the Ninth Circuit then turned to precedent of state courts to determine the scope of the Second Amendment as it was understood by the adopters of the Fourteenth Amendment and found that pre-adoption, state courts before the Civil War unanimously, with one short-lived exception (see Bliss v. Commonwealth, 12 Ky. 90 (1822) (holding that "in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise")) concluded that members of the general public could be prohibited from carrying concealed weapons (see State v. Reid, 1 Ala. 612 (1840) (holding that the English Bill of Rights did not protect a right to carry concealed weapons); Aymette v. State, 21 Tenn. 154 (1840) (holding that concealable weapons did not come within the scope of either the English Bill of Rights or the state constitution); State v. Buzzard, 4 Ark. 18, 19 (1842) (holding that a state statute that provided that "every person who shall wear any pistol, dirk, butcher or large knife, or a sword in a cane, concealed as a weapon, unless upon a journey, shall be adjudged guilty of a misdemeanor" violated neither the federal nor the state constitution); Nunn v. State, 1 Ga. 243 (1846) (holding that a state statute that prohibited the carrying of concealed weapons was constitutional); State v. Chandler, 5 La. Ann. 489 (1850) (holding that a law prohibiting concealed weapons did not violate the Second Amendment)).

In the third part of its historical analysis, which focused on the years following adoption of the Fourteenth Amendment and the Ninth Circuit found that the post-Civil War constitutions of several states either explicitly stated that the right to carry concealed weapons could be prohibited by the legislature (see N.C. Cost. Of 1868, art. I, § 24 (1875); Colo. Const. art. II, § 13 (1876); La. Const. of 1879, art. III; Mont. Const. of 1889, art. II, § 12; Miss. Const. art. III, § 12 (1890)) or (2) gave state legislatures broad power to regulate the manner in which arms could be carried (see Ga. Const. of 1868, art. I, § 14; Tex. Const. of 1868, art. I, § 13; Tenn. Const. art. I, § 26 (1870); Fla. Const. of 1885, art. I, § 20; Idaho Const. of 1889, art. I, § 11; Utah Const. of 1896, art. I, § 6).

Finally, and in the fourth part of its historical analysis, the Ninth Circuit cited to Robertson v. Baldwin, 165 U.S. 275 (1897) for the proposition that, as far back as 1897, the Supreme Court understood that the Second Amendment did not protect the right to carry a concealed weapon. In Robertson, the Supreme Court held that "the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons. Id. at 281-82.

Based upon the historical materials such as: (1) the acknowledged predecessor to the Second Amendment, the 1689 English Bill of Rights, which specifically prohibited the carrying of concealed weapons); (2) nearly unanimous state court decisions in the years after the adoption of the Second Amendment and before the adoption of the Fourteenth Amendment (concluding that laws forbidding concealed weapons were consistent with both the Second Amendment and their state constitutions); (3) the unanimous state court decisions in the decades immediately after the adoption of the Fourteenth Amendment (upholding the ability of state legislatures to prohibit concealed weapons); and (4) Robertson (holding that the protection of the Second Amendment does not extend to the carrying of concealed weapons), the Ninth Circuit concluded 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.

To read the full opinion, please visit:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/09/10-56971.pdf

Panel: Sidney R. Thomas, Chief Judge and Harry Pregerson, Barry G. Silverman, Susan P. Graber, M. Margaret McKeown, William A. Fletcher, Richard A. Paez, Consuelo M. Callahan, Carlos T. Bea, N. Randy Smith and John B. Owens, Circuit Judges.

Argument Date: June 16, 2015

Date of Issued Opinion:
June 9, 2016

Docket Number: 10-56971

Decided: Affirm the judgments of the district courts in both cases, which held that the policies of San Diego County and Yolo County did not violate the Second Amendment.

Case Alert Author: Ryan Arakawa

Counsel:

In No. 10 - 56971: Paul D. Clement (argued), Bancroft PLLC, Washington, D.C.; Paul Henry Neuharth, Jr., Paul Neuharth, Jr., APC, San Diego, California; Carl D. Michel, Glenn S. McRoberts, Sean A. Brady, and Bobbie K. Ross, Michel & Associates, P.C., Long Beach, California, for Plaintiffs - Appellants.

Edward C. DuMont (argued), Solicitor General; Gregory David Brown, Deputy Solicitor General; Douglas J. Woods, Senior Assistant Attorney General; Anthony R. Hakl, Deputy Attorney General; Mark Beckington, Supervising Deputy Attorney General; Kamala D. Harris, Attorney General of California; Office of the California Attorney General, San Francisco, California; for Intervenor.

James Chapin, County Counsel, Office of County Counsel, San Diego, California, for Defendants - Appellees.

In No. 11 - 16255: Alan Gura (argued), Gura & Possessky, PLLC, Alexandria, Virginia; Donald Kilmer, Jr., Law Offices of Donald Kilmer, San Jose, California; for Plaintiffs - Appellants.

John A. Whitesides (argued), Peter D. Halloran, and Serena M. Warner, Angelo, Kilday & Kilduff, Sacramento, California, for Defendants - Appellees Ed Prieto and County of Yolo.

Stefan B. Tahmassebi, Fairfax, Virginia; Stephen Porter Halbrook, Fairfax, Virginia; for Amicus Curiae Congress of Racial Equality, Inc.

John D. Ohlendorf, Peter A. Patterson, David H. Thompson, and Charles J. Cooper, Cooper & Kirk, PLLC, Washington, D.C., for Amicus Curiae National Rifle Association of America, Inc.

Dan M. Peterson, Dan M. Peterson PLLC, Fairfax, Virginia; David B. Kopel, Independence Institute, Denver, Colorado, for Amici Curiae International Law Enforcement Educators and Trainers Association, Law Enforcement Legal Defense Fund, Law Enforcement Action Network, and Law Enforcement Alliance of America.

Simon Frankel, Samantha J. Choe, Steven D. Sassman, and Ryan M. Buschell, Covington & Burling, LLP, San Francisco, California, for Amici Curiae Legal Community Against Violence, Major Cities Chiefs Association, Association of Prosecuting Attorneys, George Gascón, San Francisco District Attorney, and Law Center to Prevent Gun Violence.

Alan Gura, Gura & Possessky, PLLC, Alexandria, Virginia, for Amici Curiae Second Amendment Foundation, Inc., Calguns Foundation, Inc., Adam Richards, and Brett Stewart.

John C. Eastman, Anthony T. Caso, and Karen J. Lugo, Center for Constitutional Jurisprudence, Orange, California, for Amici Curiae Center for Constitutional Jurisprudence, Doctors for Responsible Gun Ownership, and Law Enforcement Alliance of America.

Don Kates, Michel & Associates, P.C., Battle Ground, Washington, for Amici Curiae The Gun Owners of California and H.L. Richardson.

Neil R. O'Hanlon, Hogan Lovells US LLP, Los Angeles, California; Jonathan L. Diesenhaus, Adam K. Levin, James W. Clayton, and Kathryn Linde Marshall, Hogan Lovells US LLP, Washington, D.C., for Amici Curiae Brady Center to Prevent Gun Violence, The International Brotherhood of Police Officers, and The Police Foundation.

John A. Whitesides and Serena M. Warner, Angelo, Kilday & Kilduff, Sacramento, California, for Amici Curiae Edward G. Prieto and County of Yolo.

Girard D. Lau, Solicitor General of Hawaii; Kimberly Tsumoto Guidry, First Deputy Solicitor General; Robert T. Takatsuji, Deputy Solicitor General; Department of the Attorney General, Honolulu, Hawaii; for Amicus Curiae State of Hawaii.

Paul R. Coble, Krista MacNevin Jee, James R. Touchstone, and Martin Joel Mayer, Jones & Mayer, Fullerton, California, for Amici Curiae California Police Chiefs' Association, California Peace Officers' Association, and California Sheriffs' Association.

Stephen M. Duvernay and Bradley A. Benbrook, Benbrook Law Group, PC, Sacramento, California, for Amici Curiae Firearms Policy Coalition, Inc., Firearms Policy Foundation, Inc., California Association of Federal Firearms Licensees, Inc., Pink Pistols, Gun Rights Across America, Liberal Gun Owners Association, Madison Society, Inc., Hawaii Defense Foundation, Florida Carry, Inc., Illinois Carry, Knife Rights Foundation, Inc., and Second Amendment Plaintiffs.

Charles Nichols, Redondo Beach, California, for Amicus Curiae California Right to Carry.

Brian S. Koukoutchos, Mandeville, Louisiana, for Amici Curiae Pink Pistols, Women Against Gun Control, Inc., and Second Amendment Sisters.

Thomas Peter Pierce and Stephen D. Lee, Richards, Watson & Gershon, Los Angeles, California, for Amicus Curiae League of California Cities.

Andrew S. Oldham, Deputy General Counsel; James D. Blacklock, General Counsel; Office of the Governor, Austin, Texas; for Amici Curiae Governors of Texas, Louisiana, Maine, Mississippi, Oklahoma, and South Dakota.

Brett J. Talley, Deputy Solicitor General; Andrew L. Brasher, Solicitor General; Luther Strange, Attorney General; Office of the Attorney General of Alabama, Montgomery, Alabama; for Amici Curiae Alabama, Alaska, Arkansas, Florida, Idaho, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wisconsin.

Robert J. Olson, Jeremiah L. Morgan, John S. Miles, William J. Olson, and Herbert W. Titus, William J. Olson, P.C., Vienna, Virginia; for Amici Curiae Gun Owners of America, Inc.; Gun Owners Foundation; U.S. Justice Foundation; The Lincoln Institute for Research and Education; The Abraham Lincoln Foundation for Public Policy Research, Inc.; Policy Analysis Center; Institute on the Constitution; and Conservative Legal Defense and Education Fund.

Michael Connelly, Ramona, California, for Amicus Curiae U.S. Justice Foundation.

Jonathan E. Taylor and Deepak Gupta, Gupta Beck PLLC, Washington, D.C., for Amicus Curiae Everytown for Gun Safety.

David D. Jensen, David Jensen PLLC, New York, New York, for Amici Curiae New York State Rifle & Pistol Association, Association of New Jersey Rifle & Pistol Clubs, Commonwealth Second Amendment, Gun Owners' Action League, and Maryland State Rifle & Pistol Association.

Jonathan S. Goldstein, McNelly & Goldstein, LLC, Hatfield, Pennsylvania, for Amici Curiae Western States Sheriffs' Association, Sheriff Adam Christianson, Sheriff Jon Lopey, Sheriff Margaret Mims, Sheriff Tom Bosenko, David Hencratt, Sheriff Steven Durfor, Sheriff Thomas Allman, Sheriff David Robinson, Sheriff Scott Jones, Sheriff Bruce Haney, Sheriff John D'Agostini, and Retired Sheriff Larry Jones.

Brandon M. Kilian, La Grange, California, for Amicus Curiae The Madison Society, Inc.
Michael John Vogler, Vogler Law Offices, Pasadena, California, pro se Amicus Curiae.

Author of Opinion: Judge William A. Fletcher

Circuit: Ninth Circuit

Case Alert Supervisor:
Professor Ryan T. Williams

    Posted By: Ryan Williams @ 09/07/2016 01:18 PM     9th Circuit  

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