The Courts

“It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” —Justice Antonin Scalia 

NATIONAL

Feb.23, 2014 —The U.S. Supreme Court declined to consider whether the Second Amendment right to keep and bear arms applies outside the home. In 2008, the Supreme Court ruled that the Second Amendment guarantees the right to possess a gun at home for self-defense. Since then, the lower courts have split over the nature of gun rights beyond the home.

The Court declined to grant review of two laws that restrict handgun ownership by young adults — a federal law barring the sale of handguns to customers under 21 and a Texas law forbidding anyone under 21 to carry a handgun in public. Both laws were upheld by the lower courts.

STATE

Feb. 20, 2014 —A two-to-one decision by a U.S. 9th Circuit Court of Appeals panel would overturn restrictions on carrying concealed handguns, primarily affecting California’s most populated regions. The ruling struck down California rules that permit counties to restrict as they see fit the right to carry a concealed weapon in public. The slim majority said the restrictions violate the Second Amendment’s guarantee of the right to bear arms because they deny law-abiding citizens the ability to carry weapons in public unless they show they need the protection for specific reasons.

In Judge Diarmuid O’Scannlain’s viewpoint, “We are not holding that the Second Amendment requires the state to permit concealed carry.” But, he continues, “The Second Amendment does require that the states permit some form of carry for self-defense outside the home.” Experts said the issue would eventually be decided by the U.S. Supreme Court.

This decision stems from a change in state law in 2012 that took away the right of residents to carry unloaded guns in public, with ammunition carried separately. Before the ban was enacted, courts routinely upheld restrictions on carrying concealed weapons. Gun owners argued that the ban and restrictions on concealed weapons made it impossible to defend themselves in public.

 

California leaves it to counties to decide permit requirements for carrying concealed weapons in public. The rules in the state’s urban centers are more restrictive than in other areas. In most states, the laws regarding concealed weapon permits say that a sheriff “shall” issue a concealed weapon permit. In California, the law states that law enforcement “may” issue such a permit.

The ruling, by two of the 9th Circuit’s most conservative judges, conflicted with holdings in three other appellate federal courts and established gun rights beyond what the U.S. Supreme Court has guaranteed. The high court has applied the Second Amendment in the context of possessing guns in the home, not in the streets.

The two judges acknowledged that the District of Columbia v. Heller decision did not specifically address the scope of the Second Amendment outside the home. They decided that the right does extend beyond the home and also prohibits states from having any say over who is allowed to carry a loaded concealed gun.

Judge Sidney Thomas dissented, arguing that Thursday’s decision “upends the entire California firearm regulatory scheme” and “needlessly intrudes and disrupts valid and constitutional legislative choices.” Thomas, a Clinton appointee, said the Second Amendment has never been interpreted to protect concealed carrying of guns in public and noted that the state of California was not named as a defendant, though its rules were effectively being struck down.

Feb. 21, 2014 —San Diego County Sheriff Bill Gore has decided not to request the full U.S. 9th Circuit Court of Appeals to review a ruling that struck down the state’s law on issuing concealed weapons permits.

Gore has opted to stick with his department’s rules, noting that the ruling is not yet final. Applicants who meet all requirements will be issued a permit. Applicants who do not meet the requirements will not have their application rejected but will have it held in abeyance until the court ruling is final, Gore said. Successful applicants must also pass a firearms safety course. “This process can take several months,” Gore said.

At issue was the San Diego’s department’s requirement that applicants show “good cause” why they need to carry a concealed weapon outside their home. That requirement is in addition to a background check and a showing of “good moral character.” Since the panel’s ruling, the sheriff’s departments in Ventura and Orange counties have loosened their requirements, in effect, dropping the “good cause” but sticking with the background check and “good moral character.”

The Los Angeles County Sheriff’s Department has made a similar decision not to change its requirements while the issue is still before the legal system.

 

Feb. 23, 2014— In an LA Times OpEd, Adam Winkler, Professor of Law at UCLA School of Law, maintained the 2008 Heller ruling by the US Supreme Court held that the Second Amendment protects the right of individuals to have guns for personal protection. He further opines that the text of the amendment guarantees not only the right to “keep” a gun, as one might in the home, but also the right to “bear,” or carry, arms. In effect Winkler is saying individuals have the right to take their guns anywhere.

A majority of Americans in the 21st century might consider Winkler’s viewpoint extreme. We must focus on the fact that at this time the Second Amendment only protects a right to possess a firearm in the home for self-defense, and that a wide variety of gun control laws are constitutionally permissible.

 

Additionally, Supreme Court Justice Scalia stated in his opinion that like most rights, the Second Amendment right is not unlimited. “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

Toni Wellen is the chair of the Santa Barbara Coalition Against Gun Violence. She lives in Carpinteria.