some facts about guns, episode 11

In February, the Ninth Circuit issued a decision with enormous consequences for gun law in California. Peruta v. Cnty of San Diego involved California’s concealed-carry law, which in San Diego County was effectively a ban:

California law delegates to each city and county the power to issue a written policy setting forth the procedures for obtaining a concealed-carry license. San Diego County has issued such a policy. At issue in this appeal is that policy’s interpretation of the “good cause” requirement: “[A] set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way . . . .” [C]oncern for “one’s personal safety alone is not considered good cause . . . .”

If the applicant cannot demonstrate “circumstances that distinguish [him] from the mainstream,” then he will not qualify for a concealed-carry permit.

Because California makes open carry “illegal in virtually all circumstances,” the court found that the extreme restrictions on concealed carry “destroyed” the Second Amendment right to “bear” arms.

I think this is probably the right result, given the Supreme Court’s reading of the Second Amendment. Heller established that the phrase “bear arms” was not a term of art referring to military service. If that is so (and, for legal purposes, it is), then the other ordinary and plain meaning of the phrase is probably “to carry weapons around.” And because Heller also established that the core Second Amendment right is the right to the tools of self-defense, “the right to . . . bear arms” probably means the right of ordinary responsible citizens to carry weapons in public for the purpose of self-defense.

As the court noted, it’s not enough that the right be available to a small group of people who can demonstrate that they are “distinguish[ed] from the mainstream”—indeed that is probably the opposite of the way we think of the constitutional rights of individuals. I think this really gives you a sense of the sweep of Heller—despite the Heller majority’s footnote to the effect that “longstanding” forms of gun control were “presumptively” valid, when you frame the right as a universal personal right akin to the First Amendment right to free speech, it makes it considerably harder to construct a gun control law that attempts to balance different public safety interests, such as a general interest in gun-free streets and the interest of a few people under specific threat in carrying weapons. Such balancing of interests is simply antithetical to Heller‘s view of the nature of the right. (See the Heller majority opinion, here, at 62-63: “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.”)

I think the Peruta majority is also correct that the scope of the inquiry has to include the state’s total gun carry package—open carry laws and concealed carry laws taken together. The dissent argues that because concealed carry bans have a longstanding historical basis, a concealed carry ban, taken in isolation, can’t be a Second Amendment violation. But I think the majority has the better argument, again based on Heller‘s analogy to the first Amendment context.

You can imagine, for example, a local ordinance or policy restricting the times that political demonstrations may take place on the public sidewalks. (These are known as “time, place, and manner” restrictions in First Amendment law.) A law banning demonstrations from dusk to dawn could be constitutional, especially if justified on noise and nuisance grounds. A law banning demonstrations from dawn to dusk would be harder to justify, but might still pass constitutional muster. What probably would not be constitutional would be to pass both ordinances at the same time, so that there was no time when demonstrations could be held. And this is essentially what California’s carry laws do: they forbid, in separate statutes, open and concealed carry, so that there is no way to “bear arms” on one’s person. You can’t accomplish an unconstitutional ban by splitting it into component parts, and so, under Heller‘s (non-military) definition of “bear arms,” California likely cannot accomplish a total ban on weapons-carry by splitting it into open and concealed carry bans.

In any event, there is now a significant circuit split on the question of concealed carry bans, and the Supreme Court may take up one of these cases sometime in the near future. We shall see.

I did want to point out one more thing about Peruta‘s methodology. Many federal courts, following fairly substantial dicta in Heller, are employing historical analysis to determine whether a particular weapons-related activity is with the scope of the Second Amendment. But here we run into a weird snag with the whole “originalist”/historical approach: once the Supreme Court determines that the history means one thing, no evidence to the contrary can ever be admitted again. As the Peruta court notes in explaining its exclusion of certain 19th-century cases from its analysis,

Relying on three cases, the [Second Circuit] concluded that “history and tradition [did] not speak with one voice” regarding the ability to restrict public carry because at least three states “read restrictions on the public carrying of weapons as entirely consistent with constitutional protections.” Kachalsky, 701 F.3d at 90-91 (citing Fife v. State, 31 Ark. 455 (1876), English, 35 Tex. at 473, and Andrews v. State, 50 Tenn. 165 (1871)). But in its brief historical analysis, the court missed a critical factor: the cases it cites in favor of broad public carry restrictions adhere to a view of the Second Amendment that is and always has been incorrect. Cf. Moore, 702 F.3d at 941 (referencing “disagreement . . . with some of the historical analysis in [Kachalsky because] we regard the historical issues as settled in Heller“). All three cases interpret the Second Amendment as a militia-based (rather than a self-defense-centered) right; they uphold regulations on carrying pistols in public because pistols are not the type of weapons that would be used by militia men. See Fife, 31 Ark. at 461 (upholding a prohibition against carrying pistols in public because such weapons are “used in private quarrels and brawls” and are not “effective as a weapon of war, and useful and necessary for `the common defense'”); English, 35 Tex. at 475 (“[W]e shall be led to the conclusion that the [Second Amendment] protects only the right to `keep’ such `arms’ as are used for purposes of war, in distinction from those which are employed in quarrels and broils, and fights between maddened individuals . . . .”); Andrews, 50 Tenn. at 186-87 (affirming the constitutionality of a law regulating public carry of certain weapons which were not the “usual equipment of the soldier” but remanding for consideration of whether a revolver was the “character of weapon” used in warfare).

Because the Second Amendment has always been an individual right to defend oneself, cases that—like these—uphold gun regulations because they do not offend the militia-based nature of the right are inapposite and should not factor into a historical analysis of the right’s scope. See, e.g., Heller, 554 U.S. at 605. And with these cases off the table, the remaining cases speak with one voice: states may not destroy the right to bear arms in public under the guise of regulating it.

This is a peculiar way to do history. It’s one thing to say that the weight of historical precedent favors Heller‘s interpretation of the right, or that Heller is now the law regardless of disagreement among historical courts. It’s quite another thing to say that an interpretation first articulated by the Supreme Court in 2008 has “always” been the law—especially given that there was at one point fairly strong left-right agreement that the Amendment was obsolete. Clearly it wasn’t—and kudos to the scholars and judges who managed to bring it roaring back. But neither modern nor 19th-century history shows anything like a “consensus” pre-Heller—as the cases quoted by the Second Circuit demonstrate.

Oh well. Down the memory hole with you, nonconforming historical documents.

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One Response to some facts about guns, episode 11

  1. Pingback: some facts about guns, episode 14 | The Handsome Camel

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