Bearing arms in the 9th Circuit

The 9th U.S. Circuit Court of Appeals has the chance to play a key leadership role in the development of the law of the Second Amendment and to show how reasonable regulation of firearms is consistent with the U.S. Supreme Court's holding that there is a constitutional right of individuals to possess guns. Its recent decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. March 4, 2015), upholding a ban on large capacity ammunition magazines, is an important step in this direction. A potentially even more important step is its granting of en banc review in Peruta v. County of San Diego, 742 F.3d 1144, 1147 (9th Cir. 2014), en banc review granted, 2015 DJDAR 3484 (9th Cir. Mar. 26, 2015).

From 1791, when the Second Amendment was ratified, until 2008, the Supreme Court held that the provision protected only a right of individuals to have firearms for the purpose of militia service. No Supreme Court decision ever had found that the Second Amendment protected a right of individuals to possess guns for any other purpose.

In 2008, in District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court for the first time invalidated a law regulating guns and found that the Second Amendment is not limited to protecting a right to have firearms for militia service. The case concerned the constitutionality of a 32-year-old District of Columbia ordinance that prohibited possession of handguns and imposed significant restrictions on long guns. The court, in a 5-4 decision, invalidated the ordinance as violating the Second Amendment.

I do not know when views on guns became so defined by ideology, with conservatives favoring gun rights and liberals favoring gun control. But in light of this, not surprisingly, the court split along ideological lines with Justice Antonin Scalia's opinion being joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito. Justices John Paul Stevens and Stephen Breyer wrote dissenting opinions, which were joined by Justices David Souter and Ruth Bader Ginsburg. Each side found in the text and history of the Second Amendment support for its view. Two years later, in McDonald v. City of Chicago, 561 U.S. 742 (2010), again by a 5-4 margin with the justices split along ideological lines, the court concluded that the Second Amendment applies to state and local governments.

Heller and McDonald left many questions open and the Supreme Court has not returned to the Second Amendment in the last five years, despite many opportunities to do so. For example, what level of scrutiny should be used in evaluating government regulation of firearms? Heller and McDonald both held that there is a right of individuals to have guns in the home for the sake of their security. But what, if any, is the right to have guns elsewhere and how may the government regulate that right?

These are exactly the issues presented in the 9th Circuit's cases. Fyock v. City of Sunnyvale involved an ordinance passed by a voter initiative that prohibited large capacity ammunition magazines. A 1994 federal law, the Violent Crime Control and Law Enforcement Act, prohibited the possession of "large capacity ammunition feeding devices," which were defined as magazines capable of accepting more than 10 rounds of ammunition. In 2000, California prohibited the manufacture, sale, purchase, transfer and receipt of large-capacity magazines within the state, but the California law did not specifically criminalize their possession, which was covered at the time by federal law. In 2004, the provisions of the federal Crime Control Act expired, meaning that possession of large-capacity magazines is no longer prohibited in California or elsewhere.

In November 2014, Sunnyvale voters passed an initiative, Measure C, which provides that "no person may possess a large-capacity magazine in the city of Sunnyvale," which is defined as any detachable ammunition feeding device with the capacity to accept more than 10 rounds. A lawsuit was brought seeking to enjoin this ordinance as violating the Second Amendment. The district court denied a preliminary injunction and the 9th Circuit affirmed.

In fact, the 9th Circuit, though upholding the ordinance, made the issue harder than it should have been. In Heller, the Supreme Court said that the Second Amendment does not protect a right to have "dangerous and unusual weapons." The 9th Circuit correctly noted that this involves analysis of whether "the weapon has uniquely dangerous propensities and whether the weapon is commonly possessed by law-abiding citizens for lawful purposes." The 9th Circuit surprisingly concluded that high capacity magazines do not fit within this test. But high capacity magazines obviously have "dangerous properties"; they have the capacity to kill a large number of people in a short period of time.

The 9th Circuit, though, went on to uphold the ordinance by applying intermediate scrutiny, asking whether the ordinance was substantially related to an important government purpose. In light of Heller and McDonald, this is the correct test. Scalia's opinion in Heller rejected rational basis review. Although the 6th U.S. Circuit Court of Appeals has adopted strict scrutiny as the test, Tyler v. Hillsdale County Sheriff's Department, 775 F.3d 308 (6th Cir. 2014), most other circuits have rejected that. In Heller and McDonald, the Supreme Court stressed the ability of the government to regulate guns, including who may have them, where they may be possessed, and what types of weapons are allowed. Strict scrutiny is incompatible with this government authority to regulate firearms. The 9th Circuit affirmed the denial of a preliminary injunction and stressed the government's interest in banning high capacity ammunition magazines.

The 9th Circuit's grant of en banc review last month in Peruta v. County of San Diego provides an important opportunity for the court to clarify what types of regulations of guns outside the home are allowed. In Peruta, the 9th Circuit, in a 2-1 decision, declared unconstitutional the California law that prohibits individuals from carrying concealed weapons unless a permit has been issued by a county. A county may issue such a permit if the applicant demonstrates "good moral character," completes a firearms training course, and has "good cause" for carrying such a concealed weapon.

Judge Diarmuid O'Scannlain wrote the majority opinion and said that the Second Amendment protects a right of people to have guns when outside of their homes. He concluded that limiting the carrying of concealed weapons to those who have "good cause" for doing so, in light of the California ban on carrying weapons openly, violates the Second Amendment.

This decision is wrong as a matter of constitutional law and misguided as a matter of public policy. No Supreme Court decision ever has found a right to have guns outside the home, and certainly none ever has found a right to have a concealed weapon. Quite the contrary, in Robertson v. Baldwin, 165 U.S. 275 (1897), the Supreme Court expressly declared: "The right of the people to keep and bear arms. ... is not infringed by laws prohibiting the carrying of concealed weapons." This decision has not been overruled or questioned by the Supreme Court and is binding on the 9th Circuit.

Moreover, in Heller, the Supreme Court clearly indicated that laws prohibiting concealed weapons are constitutional. Scalia used laws prohibiting the carrying of concealed weapons as an example of the type of regulations that are permissible under the Second Amendment. He wrote: "For example, the majority of the 19th century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment and state analogues." The court was explicit that "[n]othing in our opinion should be taken to cast doubt on long-standing prohibitions."

Prohibitions on carrying concealed weapons are sound policy as well; that is why they have existed throughout American history. As the late Justice John Marshall Harlan explained: "Concealed weapons create an immediate and severe danger to the public." Terry v. Ohio, 392 U.S. 1 (1968). Prohibiting concealed weapons limits the ability of criminals to take advantage of stealth and surprise. It protects police officers and limits danger to the public. It lessens the likelihood that a minor altercation will escalate into one where deadly force is used.

The 9th Circuit should overrule the panel's decision in Peruta and uphold the government's ability to regulate concealed weapons outside the home. Its opinion in Peruta, together with its decision in Fyock v. City of Sunnyvale, can help to establish the ability of the government to regulate firearms to protect public safety while still recognizing the Second Amendment right to bear arms.