California Gun Case Sets Stage for Second Amendment Showdown at Supreme Court

No Guns

The overturning of a San Diego law restricting residents’ right to carry a firearm outside their homes for self-defense is a clear win for gun-rights advocates and sets up a showdown on the issue before the U.S. Supreme Court, a Heritage Foundation legal analyst says.

“This is the fifth federal appellate court to rule on the scope of the Second Amendment outside the home, and with a split among the federal courts, it looks like this issue may be heading to the Supreme Court,” Elizabeth Slattery, Heritage’s senior legal policy analyst, told The Foundry.

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled yesterday that the city’s “good cause” requirement impermissibly infringes on the Second Amendment right to keep and bear arms.

“The Second Amendment clearly contemplates something beyond simply stowing firearms in the home,” Slattery said, “particularly since the right to self-defense would seem to follow the individual—‘whether in a back alley or on the back deck,’ as the Ninth Circuit panel noted.”

The U.S. Supreme Court has recognized that the Second Amendment protects an individual’s “right to keep and bear arms,” and self-defense is the central component of that right. But the high court’s most recent Second Amendment cases — District of Columbia v. Heller and McDonald v. Chicago — dealt with an individual’s ability to possess a handgun at home. It has yet to rule on the scope of the right to carry a firearm outside the home.

California law prohibits the open or concealed carry of handguns in public, but allows counties and cities to issue licenses for  persons to carry concealed weapons if they establish “good cause.” When San Diego County required applicants to show specific circumstances warranted their doing so and to demonstrate a “unique risk of harm,” a group of residents challenged the “good cause” requirement.

Judge Diarmuid O’Scannlain and Judge Consuelo Callahan said the Constitution doesn’t require states to permit concealed carry, but instead must permit “some form of carry for self-defense outside the home.” While noting that “regulation…is not only legitimate but quite appropriate,” they concluded San Diego’s regulation went too far:

To reason by analogy, it is as though San Diego County banned all political speech, but exempted from this restriction particular people (like current or former political figures), particular places (like private property), and particular situations (like the week before an election). Although these exceptions might preserve small pockets of freedom, they would do little to prevent destruction of the right to free speech as a whole.

In his dissent, Judge Sidney Thomas, an appointee of President Clinton, said the majority ruling “upends the entire California firearm regulatory scheme.” Thomas said O’Scannlain and Callahan, appointees of Presidents Reagan and George W. Bush, respectively, wrongly reasoned that the state’s open-carry ban means that residents must be permitted to carry concealed handguns without having to specify concerns for their own safety.

This story was produced by The Foundry’s news team. Nothing here should be construed as necessarily reflecting the views of The Heritage Foundation.

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