Peruta: Not just correct on law, it upholds the best policy

On June 9, an en banc panel of the 9th U.S. Circuit of Appeals held that the Second Amendment does not protect a right to carry a concealed firearm in public. In Peruta v. County of San Diego, 2016 DJDAR 5523, the 9th Circuit aligned with every other federal court of appeals to hear a Second Amendment challenge to discretionary concealed carry permitting systems. Not only was the opinion correct as a matter of law, it also preserved an important policy that keeps Californians safe from a flood of guns in public spaces.

Those who wish to carry concealed firearms in public in California must meet a number of requirements, including a showing of "good cause." State law leaves it up to local sheriffs to establish standards as to what constitutes "good cause."

In some counties - particularly those with dense urban populations - sheriffs require applicants to demonstrate a specific self-defense concern in order to establish good cause. The plaintiffs in Peruta tried to argue that San Diego's interpretation of the "good cause" standard violates the Second Amendment.

To understand the stakes of this case, it's helpful to compare California with Florida, the home of the most deadly mass shooting in American history, the massacre at the Pulse nightclub in Orlando. As with its other gun laws, Florida has relatively lax requirements for issuing concealed carry permits. The result is that in a state with less than 20 million people, some 1.5 million Floridians are licensed to carry concealed, loaded guns in public. Florida also has a dangerous "stand your ground" law that tilts self-defense standards heavily in favor of shooters.

Combining more than a million armed citizens in public with a self-defense culture of "shoot first and ask questions later" is a deadly proposition. This helps explain why, in 2014, Florida's firearm homicide rate was 29 percent higher than California's. If it were true that "more guns equals less crime," as the gun lobby claims, then Florida should be one of the safest states in the country. That is not the case.

As the Law Center pointed out in an amicus brief cited by the Peruta court, examples abound in Florida of citizens with concealed carry permits murdering others in public places - including in a movie theater after an argument over texting and popcorn and at a gas station parking lot after a dispute over loud music.

Despite its much larger population, California has issued only about 100,000 concealed carry permits thanks to the "good cause" requirement. Having fewer guns in public places is one of California's many policies designed to reduce gun violence. With its comprehensive approach, California has the ninth lowest rate of gun death in the country. Were the good cause requirement to be struck down, the Golden State would go the way of the Sunshine State, with an ensuing deluge of guns in public places.

Of course, none of these policy considerations matter if the law itself is unconstitutional. So, does the good cause requirement, as implemented in San Diego, violate the Second Amendment?

In 2008, in District of Columbia v. Heller, the U.S. Supreme Court held for the first time that the Second Amendment protects the individual right of responsible, law-abiding citizens to possess an operable handgun in the home for self-defense. Justice Antonin Scalia's majority opinion, however, did not discuss whether this right extends beyond the home, leaving the issue for the lower courts.

By the time Peruta reached the 9th Circuit, the 2nd, 3rd and 4th Circuits had all rejected Second Amendment challenges to concealed carry permitting systems similar to California's, and the 10th Circuit had found that concealed carry is not protected by the Second Amendment.

With a potential circuit split at stake, the en banc Peruta court followed the lead of Scalia's opinion in Heller, which "treated its historical analysis as determinative." Accordingly, the 9th Circuit undertook an exhaustive analysis of the historical record in order to resolve the issue of "whether the Second Amendment protects the right to carry a concealed weapon in public."

Since the Second Amendment "codified a preexisting right ... inherited from our English ancestors," the court looked to the understanding of the right at several critical time periods. At each, the court found "uncontradicted historical evidence" showing that "the Second Amendment does not protect, in any degree, the right of a member of the general public to carry a concealed weapon in public."

For example, after looking at English statutes dating back to the Statute of Northampton in 1328, the Peruta court concluded that, by the end of the 18th century, "English law had for centuries consistently prohibited carrying concealed ... arms in public." Moreover, the court found nothing "suggesting that the law in the American colonies with respect to concealed weapons differed significantly from the law in England."

The evidence from later American legal sources was similarly overwhelming. The court found that, prior to 1849, state courts were nearly unanimous - with just a single outlier - in concluding that individuals could be prohibited from carrying concealed weapons. By 1849, every state court to address the question held that the right to bear arms did not include a right to carry concealed weapons in public.

In 1897, the U.S. Supreme Court itself, in Robertson v. Baldwin, held that "the right of the people to keep and bear arms ... is not infringed by laws prohibiting the carrying of concealed weapons."

The Peruta court's thorough historical analysis establishes beyond a doubt that the Second Amendment does not protect concealed carry. As a result, San Diego's interpretation of the good cause requirement is constitutional. The court correctly addressed the issue before it, using the exact analysis prescribed by Heller.

The 9th Circuit's opinion in Peruta gets the law right and allows California to maintain its sane concealed carry policy. Every circuit court to hear this issue has agreed: discretionary concealed carry permitting systems do not violate the Second Amendment. Thankfully, California remains free to implement lifesaving policies that limit the number of loaded, concealed guns carried in our public spaces.

Law Center to Prevent Gun Violence advocates for commonsense solutions to America's gun violence crisis. The Law Center filed several amicus briefs in Peruta in support of the defendants. To learn more about federal and state gun laws, please visit www.smartgunlaws.org.