Constitutional Law,
U.S. Supreme Court
Jun. 23, 2016
Passively tolerating preventable mayhem
Powerful forces will no doubt support the Peruta plaintiffs in their reasonable, but misdirected, quest to fix our sights on the proper contours of the constitutional right to bear arms.
William Slomanson
Distinguished Professor Emeritus, Thomas Jefferson School of Law
Email: bills@tjsl.edu
William Slomanson is also the author of California Procedure in a Nutshell (5th ed. 2014).
In 2008, the U.S. Supreme Court's Heller case held that the public has a right to have guns at home for self-defense. In 2009, Edward Peruta was the lead plaintiff, along with gun rights activist groups, who sued the San Diego and Yolo County Sheriff's Departments when the sheriffs denied requests for concealed weapons permits. But the federal trial judges agreed with the defendants' policy prohibiting the public from carrying concealed weapons absent "good cause."
The initial appeals before the 9th U.S. Circuit Court of Appeals successfully argued that Heller should be extended to self-defense outside of the home. Self-defense was considered cause enough for issuing concealed weapons permits. The sheriffs had unconstitutionally restricted the Second Amendment right to bear arms. Suddenly, good cause was no longer required. Thousands of county residents thus applied for such permits. Earlier this month, a second federal appeals court reversed in the consolidated Peruta decision. Peruta v. County of San Diego, 2016 DJDAR 5523 (9th Cir. June 9, 2016). Its fractured, 7-4 en banc decision held that there is no general right to carry concealed weapons in public. It traced concealed weapons bans back to a U.S. Supreme Court decision in 1897, and to English law dating back to 1541. The en banc court also declined to accept the invitation to consider California's ban on open-carry weapons in public. Because of the national legislative and judicial split on such issues, this consolidated case will likely be in the Supreme Court's cross hairs. The plaintiffs' position was supported by some of the 16 judges who have heard these two cases. The 9th Circuit's Justice Consuelo Callahan best articulated why in her en banc dissent joined by several other judges: "the Defendant counties' limited licensing of the right to carry concealed firearms is tantamount to a total ban on the right of an ordinary citizen to carry a firearm in public for self-defense. ... The counties and [the intervening state of] California have chipped away at the Plaintiffs' right to bear arms by enacting first a concealed weapons licensing scheme that is tantamount to a complete ban on concealed weapons, and then by enacting an open carry ban. Constitutional rights would become meaningless if states could obliterate them by enacting incrementally more burdensome restrictions." Dissents, however, are not the law. The contemporary counter-arguments actually arise from Heller. Justice Antonin Scalia, who penned the Heller majority opinion, was well known for his staunchly conservative views. While he acknowledged the right to bear arms for self-defense, he also cautioned: "Like most rights, the right secured by the Second Amendment is not unlimited .... [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Put another way, with great power comes great responsibility. The National Rifle Association's hackneyed rhetoric is not the best example of responsible argument. It has ricocheted back into today's election cycle: If - then Bill (1992), and now Hillary (2016) - Clinton is elected president, the government will confiscate all firearms. This argument ignores the interim Supreme Court Heller opinion: It solidified the constitutional right to bear arms (at home). It erected an impenetrable barrier to the claim that electing Hillary Clinton will enable government confiscation of arms privately held by individuals for self-defense. There is a related irony. On the day of the Orlando attack, Donald Trump demanded that President Barack Obama resign - and that presumptive nominee Clinton withdraw - if they refused to characterize that attack as being triggered by "radical Islam." But Trump made no mention of the gun control issues engulfing the shooter. It will take weeks, or months, to assess the degree of ISIS involvement. It took no time, however, for investigators to uncover the role played by the mental health issue and legal gun purchases. But we have gotten nowhere, by first debating the efficacy of specific nit-by-pick gun control measures. That approach is a reasonable sidebar, which is actually step two of the process necessary to heal our national wounds. Step one is crafting the emotional ammunition needed to arouse the will - on both sides of the aisle - to defer to common sense gun control measures that groups like the NRA characterize as breaching the Second Amendment's virtually unlimited right to bear arms. Such flexibility would be a de minimus price to pay for avoiding just one more of the countless shooting deaths which will continue to take the lives of our children, loved ones, and people we knew. Powerful forces will no doubt support the Peruta plaintiffs in their reasonable, but misdirected, quest to fix our sights on the proper contours of the constitutional right to bear arms. It is my hope that politicians will vote their conscience on proposed legislation, without undue concern for the impact of a gun control vote on re-election. Doing nothing is not an option. In the aftermath of Orlando, the fundamental question remains: should we be content with passively tolerating such preventable mayhem.Submit your own column for publication to Diana Bosetti
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