7/26/2019 9th Circuit Peruta Decision Editorial

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#NoFilter Politics June 11, 2016

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EDITORIALNinth Circuit Court of Appeals Issues Ruling Based On Politics, Not Law Upholds

Rationing Scheme For Right of Self-Defense

THE EDITORIAL BOARD

It is well-settled that the Second

Amendments right to keep and bear arms

extends to the carrying of weapons in

public.1

On Thursday, an en banc panel of the

United States Court of Appeals for the Ninth

Circuit upheld two policies enacted by the

sheriffs of San Diego and Yolo counties in

California, which denies concealed carry

permit applicants to those that fail todemonstrate good cause, a phrase defined

as requiring a particularized reason why an

applicant needs a concealed firearm for self-

defense.2

The State of California also prohibits the

open public carrying of loaded operable

firearms.3Thus, the policies, in effect, bestow

upon all 58 sheriffs in California the power

to enact an arbitrary and capricious

rationing scheme to divvy out Second

Amendment rights.The court framed the case in terms of

whether there was a right to carry a

concealed weapon. However, since the

Second Amendment does protect a right to

some form of public carrywhether open or

concealedthe more appropriate question is

whether the statutory scheme in its totality

burdens the right to public carry. Since

California imposes a flat ban on open carry,

the only means by which one can exercise his

or her Second Amendment right in public is

through concealedcarry.

Thus, the proper analysis should have

been whether endowing county-level officials

with absolute discretion to decide if one can

exercise a fundamental right is

constitutionally permissible. The answer to

that question is a most definitive no. To

logically arrive at the opposite conclusion

one must accept the premise that it would be

constitutionally permissible if a sheriff

issued a permit to no one. Of course, many

would be outraged if county-level employees

were empowered to summarily decide

whether a woman would receive an abortion.

To be sure, some may choose to fall backon the argument that more guns carried in

public pose serious risks to public safety

These are concerns that should always be

taken seriously. But the data to substantiate

this fear never take into account the relevant

questionwhether more licensed guns in

public pose a risk to public safety. Likewise

no conclusive data exists to substantiate the

general point that more guns, generally, pose

a unique risk to public safety.

Those articles in the Bill of Rights wereinserted not so they could be whittled down

by arbitrary legal reasoning. They were

inserted, because they were believed to be

rights that pre-existed the Constitution, and

were among those rights endowed by our

creator. Courts should interpret them as

such. It is not the job of federal courts to

bend over backwards to appease an ever-

changing public opinion or their own political

interests. The sooner we begin to respect the

rights with which we disagree, the sooner we

can come together as a country that is

mutually respectful of those that hold

differing views. Until then, we will remain a

nation wholly divided. And that is an

America in which no one wants to live.

7/26/2019 9th Circuit Peruta Decision Editorial

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#NoFilter Politics June 11, 2016

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References

1See, e.g., Moore v. Madigan, 702 F.3d 933, 936 (CA7 2012) (And one doesn't have to be a historian to realize that a

right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been

limited to the home.); Id. at 940 (A blanket prohibition on carrying gun in public prevents a person from defending

himself anywhere except inside his home; and so substantial a curtailment of the right of armed self-defense

requires a greater showing of justification than merely that the public might benefit on balance from such acurtailment, though there is no proof it would.); Id. at 942 (The Supreme Court has decided that the amendment

confers a right to bear arms for self-defense, which is as important outside the home as inside.).2Peruta v. City of San Diego, 2016 U.S. App. LEXIS 10436, 10 (CA9 2016).3Ibid.