Gun Restrictions Ripe for New Challenge

State’s restrictions on concealed carry will be argued at a U.S. appeals court.

California’s requirement that residents looking to carry firearms in public have a good reason to do so is facing a high-level court challenge, one that gets to a key question surrounding the Second Amendment’s right to bear arms.

On Tuesday, 11 judges of the Ninth U.S. Circuit Court of Appeals in San Francisco will hear arguments over California’s requirement that applicants show “good cause” before they are allowed to carry a concealed handgun in public. The challengers are taking issue with the rules in two California counties—San Diego and Yolo—where sheriffs say that concern for one’s personal safety alone isn’t considered justification enough for a concealed-carry permit.

In a 2008 case, District of Columbia v. Heller, the U.S. Supreme Court ruled definitively that people had the right to bear arms in their homes, even in municipalities with strict gun-control laws. But aside from a 2010 case that extended the reach of that ruling, the court has been quiet on how far the right extends beyond the front door, largely leaving lower courts little guidance. The California case will likely give the high court another opportunity to more clearly define the law.

“It’s the big, looming unanswered question under the Second Amendment—whether you have a right to carry a gun in public, and under what conditions,” said Adam Winkler, a law professor at the University of California, Los Angeles, who has written extensively on guns and the Constitution.

It isn’t clear why the Supreme Court has punted on recent Second Amendment cases. Still, experts on both sides of the issue suspect the court to get involved at some point soon, given the uncertainty that has rippled through the lower courts in recent years.

Justice Clarence Thomas essentially said as much last week, in a dissent responding to the court’s decision not to hear a gun case out of San Francisco. Justice Thomas, joined by Justice Antonin Scalia, warned that unless the court started taking up gun cases, the central ruling of the Heller opinion would lose force. A “constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all,” he wrote.

Federal appellate courts in New York, Philadelphia and Richmond, Va., have in recent years upheld permitting schemes similar to California’s on grounds that they have long been part of the national fabric and that they serve a “substantial government interest,” namely a desire to cut handgun violence.

Other courts have seen it differently. The three-judge panel of the Ninth Circuit that shot down California’s law last year, for instance, found that in order to receive a permit, a person need only show a desire to defend himself outside the home. The “question is whether [the San Diego County policy] allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense,” wrote Judge Diarmuid O’Scannlain. “The answer…is a resounding no.”

Last month, a federal judge in Washington, D.C., struck down a similar permitting regime in the nation’s capital, finding little proof that requiring people to show “good cause” would do anything to reduce violent crime.

In the California case, the challengers may face an uphill battle. Eight of the 11 judges on the panel were appointed by Democratic presidents.

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