Ninth Circuit Rules that San Diego’s Restrictions on Concealed Weapon Permits are Unconstitutional

by Jeffrey Lewis

Today the Ninth Circuit ruled that “San Diego County’s ‘good cause’ permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.” The case is Peruta v. San Diego (9th Cir. Feb. 13, 2014) 10-56971 and you can read the lengthy opinion here. The opinion was authored by Judge Diarmuid O’Scannlain.

The Court describes California and San Diego’s concealed weapon permit scheme as follows:

In California, the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a concealed-carry permit. And, in San Diego County, that option has been taken off the table. The San Diego County policy specifies that concern for “one’s personal safety alone” does not satisfy the “good cause” requirement for issuance of a permit. Instead, an applicant must demonstrate that he suffers a unique risk of harm: he must show “a set of circumstances that distinguish [him] from the mainstream and cause[] him . . . to be placed in harm’s way.” Given this requirement, the “typical” responsible, law-abiding citizen in San Diego County cannot bear arms in public for self-defense; a typical citizen fearing for his “personal safety”—by definition—cannot “distinguish [himself] from the mainstream.”

The Court then took a very detailed, historical review of what the right to “bear” arms meant in the context of the Second Amendment. The Court then concluded that restricting concealed weapon permits to those persons who can affirmatively establish “good cause” and denying permits to citizens who only have a generalized concern for one’s own safety infringes on the Second Amendment.

Before concluding its 77-page decision, the Ninth Circuit observed:

We are well aware that, in the judgment of many governments, the safest sort of firearm-carrying regime is one which restricts the privilege to law enforcement with only narrow exceptions. Nonetheless, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table. . . . Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court [or ours] to pronounce the Second Amendment extinct.”

This opinion will hardly be the last word on the subject. The decision can be reviewed en banc by entire Ninth Circuit. The decision also sets up a conflict among different circuits and the United States Supreme Court may have to resolve the circuit conflict at some point.