Thursday, June 09, 2016

Peruta v. San Diego (9th Cir. - June 9, 2016)

The long-running dispute about restrictions in California on "concealed carry" of firearms has come to an end.  At least temporarily.

Back in 2010 and 2011, a district court held that limiting concealed carry permits to those who have "good cause" for 'em was permissible under the Second Amendment.  But in 2014, a divided panel of the Ninth Circuit reversed, holding that these policies (in San Diego and Yolo) were unconstitutional.

Today, the en banc court reverses.  The Second Amendment doesn't protect concealed carry.

The vote's a bit complicated, with five separate opinions.  But the basic scoop is this:  7-4.  Seven judges say the restrictions are fine, four say they aren't.  The seven win.

Judge Fletcher's majority opinion is very impressive.  He definitely crushes on the point -- which he proves at length -- that concealed carry prohibitions were always thought to be okay:  in England, in the colonies, in the early United States, when the Fourteenth Amendment was adopted, etc.  Some of the dissenting judges try to take on this point, but it's really no contest.  Judge Fletcher wins.

But the best argument of the dissenters is that California doesn't just heavily restrict concealed carry, but heavily restricts open carry as well.  So, they argue, in combination, that's an overall prohibition that violates the Second Amendment.

Judge Fletcher goes out of his way to say that the majority isn't deciding anything about open carry, which is a different case, and which may, or may not, be protected.  It's just that concealed carry is not protected, and that's the end of this case.

As a purely doctrinal matter, my own view is that Judge Fletcher's view on this issue is the right one.  If a plaintiff is challenging X, and X is constitutionally permitted, the fact that Y might exist but be unconstitutional -- and X plus Y even worse -- doesn't mean that X somehow becomes a violation of the Constitution as well.  If Y is unconstitutional, the remedy is to invalidate Y, not X.

So if open carry limitations violate the Second Amendment, then a court is free to say so.  But those aren't the limitation at issue in this litigation.  This one's about concealed carry.  And, at least in my view, the ample historical evidence gives a pretty clear answer to that question.

Here's the analogy I'd draw.  Imagine that a law says that you're not allowed to conduct your protest march in the middle of a military base.  That's X.  A different law also says that you're not allowed to conduct your protest anywhere outside a military base either.  That's Y.

Now, it's true that X + Y is unconstitutional.  Because even though time, place and manner restrictions are permitted, it's not okay to have a policy that completely bans a category of speech.  I get it.

But if someone in such a setting brought a challenge to X -- to the law that banned protests in the middle of a military base -- they'd lose.  The right remedy in such a case would be to allow speech outside the military base -- to strike down Y -- not to somehow hold that since X + Y violated the First Amendment, the First Amendment now gives you the right to protest on a military base.  That's not how it works.  And what doesn't work for the First Amendment, or the Fourth, or any other Amendment doesn't work for the Second either.

I won't comment much more about today's opinion, as I'm sure it'll get a lot of coverage in the more mainstream press anyway -- if only because the list of amici alone is several pages long.  Plus, this will not be the last word on the subject:  I'm almost certain that plaintiffs will petition for certiorari, and there's at least a non-zero chance they'll get it (though, at the same time, definitely a non-zero chance that they won't).

For now, though, concealed carry laws like the one in San Diego are okay.  Open carry?  That's another question.  Maybe even a harder one.

For for closed carry, we have an answer.  Seven to four.