Is There a Constitutional Right to Carry a Gun?
Since the U.S. Supreme Court ruled in Heller v. D.C. (2008) that the Second Amendment protects an individual right to bear arms—and then ruled in McDonald v. Chicago (2010) that this right also restricts state and local governments—the high court has opted not to hear cases that might further define our right to keep and bear arms. This has been a little surprising, as the circuit courts disagree with each other on some important details. Such conflicts at the circuit level typically force the Supreme Court to weigh in.
With Justice Neil Gorsuch sworn in, many are speculating that Peruta v. San Diego County might be the case the high court takes to resolve some of the fundamental disagreements over the right to bear arms. Here is why this is a big deal.
In February 2014, the Ninth Circuit Court of Appeals, in a 2–1 ruling, confirmed in Peruta that the Second Amendment protects an individual right to carry firearms for self-defense in public. But this pro-gun-rights decision was soon overruled by a larger panel of justices on the Ninth Circuit. Gun-rights groups have since appealed the decision to the U.S. Supreme Court.
The California Rifle and Pistol Association Foundation brought the case on behalf of five individuals who were denied the right to carry a handgun by the San Diego County Sheriff’s Department. What it comes down to is that the plaintiffs couldn’t prove they needed to protect themselves to the local sheriff’s satisfaction, and thus weren’t able to obtain concealed-carry permits.
According to California law, a person applying for a permit must: 1) be a resident of their respective city or county, 2) be of “good moral character,” and 3) have “good cause” for such a license. Citizens must also pass a firearms training course. California also allows cities and other municipalities broad discretion in applying the law. So, though many rural California counties accept self-defense as “good cause,” some urban sheriffs and chiefs of police opt not to; in fact, San Diego County Sheriff William Gore had denied almost everyone. The few who attained permits from him had to beg, plead, and show imminent danger to their lives through restraining orders and other legal documentation.
Imagine if a government official treated other rights this way. Could a police officer search your home without a warrant if you didn’t have some state documentation showing you particularly needed your Fourth Amendment rights? Could a district attorney require you to testify against yourself unless you somehow proved to their satisfaction that you really, really needed your Fifth Amendment rights? Such treatment doesn’t even pass the laugh test.
This is why many on the gun-rights side have seen this as a good test case to settle the question of whether the right to “bear” arms means what it says—or if it is just some right held by now-defunct militias, as the other side argues. After all, the Supreme Court ruled in Heller, albeit 5–4, that the Second Amendment is an individual right—not one held only by local colonial-era militias—so the decision should be obvious.
The constitutionality of this right, however, is only as obvious as the makeup of the Court post-Antonin Scalia. But now with Justice Gorsuch confirmed, it seems likely that the Court will rule for freedom should it take the case.
Gun-rights groups have been loading up for this fight for some time. The case actually got a lot of attention several years ago when Paul Clement joined the plaintiffs’ legal team. Clement served as the 43rd solicitor general of the U.S. from June 2005 until June 2008. He has argued over 70 cases before the U.S. Supreme Court, including McConnell v. FEC, McDonald v. Chicago, and NFIB v. Sebelius. He was brought in because gun-rights groups understand this case has legs.
When I asked Clement why he got involved, he said, “This case squarely presents the issue whether the Second Amendment is going to apply outside the home. Having already worked on the McDonald case and defeated the argument that the Second Amendment was a lesser right, not incorporated against the States, this seemed like a natural sequel.”
When asked where he sees this case going, Clement said, “The Supreme Court will eventually get back involved to clarify some of the disagreements across the circuits. The Supreme Court always looks for the best vehicle to address important issues. I do not think issue will be any different.”
If this case makes it to the high court—and if the Supreme Court then rules as it did in Heller and McDonald—a decision could dismantle other onerous restrictions on a person’s ability to obtain a permit to carry a concealed handgun. It is a stretch to speculate that this could make America into a shall-issue nation, meaning local authorities would be forced to grant anyone a permit to carry a weapon who was not legally barred from doing so; still, the ramifications of such a decision would be profound.
If the Supreme Court declines agree to hear Peruta, the Ninth Circuit’s decision will remain the law in the Western states that make up the Ninth Circuit. It would take years for a new challenge to the decision to be appealed to the Supreme Court.
Frank Miniter is the author of the New York Times bestsellerThe Ultimate Man’s Survival Guide: Recovering the Lost Art of Manhood. He is also the author ofThis Will Make a Man of Youand The Future of the Gun.