Peruta: Misguided gun decision missed the bigger issue

In Peruta v. County of San Diego, 2016 DJDAR 5523 (June 9, 2016), an en banc panel of the 9th U.S. Circuit Court of Appeals upheld a licensing scheme that amounted to a complete ban on the carrying of concealed firearms for ordinary law-abiding citizens. The court determined that "there is no Second Amendment right for members of the general public to carry concealed firearms in public."

The Peruta decision is misguided not necessarily because the court upheld a concealed carry ban, but because the court mischaracterized the issue to reach a holding that failed to even address the plaintiffs' true injury. Instead of considering the complete ban on the plaintiffs' right to bear arms - due to the combination of California's open carry prohibition and the concealed carry restrictions in San Diego and Yolo Counties - the court adjudicated the constitutionality of the concealed carry restrictions in a complete vacuum. By mischaracterizing the issue and ignoring the open carry prohibition, the court diminished the burden on the plaintiffs' right to bear arms.

At the district court level, plaintiff Edward Peruta challenged the San Diego County concealed carry restrictions and plaintiff Adam Richards challenged the Yolo County concealed carry restrictions in separate cases. At the time, the open carrying of unloaded handguns was legal, and both district courts relied on the then-availability of open carry to uphold the concealed carry restrictions. Before the cases reached the 9th Circuit, however, California prohibited open carry. Thereafter, both 9th Circuit panels relied on the then-unavailability of open carry to strike down the concealed carry restrictions. All these courts clearly recognized the need to consider whether the concealed carry restrictions left open alternative channels to exercise the right to bear arms, since the plain text of the Second Amendment requires that the right be accommodated.

On rehearing en banc, despite having the benefits of an en banc panel, the court decided the far less important, far less relevant, and far less novel issue of whether a concealed carry ban in and of itself violates the U.S. Constitution. By addressing only this narrow issue and dodging its duty of defining the full-scope of the right to bear arms, the court's holding did little to guide future courts and even less to address the plaintiffs' burden of a complete prohibition on bearing arms.

As Judge Randy Smith pointed out in dissent, "If the issue before us is truly whether California can, in isolation, prohibit concealed carry, a simple memorandum disposition citing to Heller would be sufficient. A formal opinion, much less the gathering of our en banc panel, would not be necessary to answer the issue framed by the majority."

The court's refusal to address the bearing arms prohibition - even at the expense of providing the parties with a resolution - is especially peculiar considering that of all the authorities cited by the court in its impressively extensive historical analysis, precisely none support the outcome of Peruta: a complete ban on bearing arms for citizens of San Diego and Yolo Counties.

Every case cited by the court either upheld a concealed carry ban when open carry remained available, struck down a concealed carry ban, assumed the right to bear arms applies outside the home, or relied on an erroneous pre-Heller collective right interpretation of the Second Amendment. Every statute and constitutional provision cited by the court either left open carry available or granted the Legislature the ability to prescribe the manner in which arms could be borne. Thus, the substantial historical evidence provided by the court overwhelmingly supported the conclusion reached by Judge Consuelo Maria Callahan in dissent, that "States may choose between different manners of bearing arms for self-defense so long as the right to bear arms for self-defense is accommodated."

The majority was undeterred by the precedent it produced leading directly to the conclusion reached by the dissent. It was apparently displeased by the idea of holding that the Second Amendment protecting "the right of the people to keep and bear arms" actually protects a right to bear arms, and instead redefined the issue and answered a question largely irrelevant to any of the parties. Further, by upholding a concealed carry ban while refusing to consider the unavailability of open carry, based on concealed carry bans that were justified by the availability of open carry, the Peruta decision is flat out disingenuous. The court perverted the legal precedent it relied upon to justify what amounts to a complete prohibition on bearing arms that none of the precedent supports.

Certainly the court understood that it was issuing a decision that did not resolve the existing dispute. And certainly the court understood that it inevitably will have to determine the scope of the right to bear arms. So at best the court wasted precious time and judicial resources (both Richards and Peruta filed suit back in 2009), just to kick the can down the road. But it seems more likely that the court was reluctant to strike down a ban on public carrying, as its extensive historical analysis would have undoubtedly compelled it to, and instead chose to embrace the only approach that could possibly lead to a justification on a complete ban to bear arms.

By considering the concealed carry ban in isolation while relying on precedent that permitted legislatures to place restrictions on concealed carry in the context of the right to bear arms as a whole, the court created the opportunity for a future court to use the same approach to uphold an open carry ban while relying on precedent that permitted legislatures to place restrictions on open carry in the context of the right to bear arms as a whole. This piecemeal approach could ultimately eviscerate the right to bear arms in a way that the plain text of the Second Amendment or longstanding precedent would never otherwise allow. Callahan recognized that, stating "Constitutional rights would become meaningless if states could obliterate them by enacting incrementally more burdensome restrictions while arguing that a reviewing court must evaluate each restriction by itself when determining its constitutionality." Based on the majority's handling of Peruta, it does not seem unreasonable to suggest that the court intended to open the door for an approach that could make the right to bear arms meaningless.