"The right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense."
We repeat: what? How does the left-leaning Ninth Circuit rule in favor of concealed carry, while other circuits, including the semi-conservative 4th Circuit, go the other way?
The majority, penned by Judge Diarmuid O'Scannlain, much like the Supreme Court in District of Columbia v. Heller, read 19th century cases, and interpreted "bear arms" to mean a right to carry, in some manner, firearms outside of one's home.
A Matter of History
Much like the Supreme Court's decision in Heller, the panel majority traces the history of gun regulations and cases addressing those regulations, from Dred Scott, where the court explicitly stated, amongst other erroneous holdings, that African Americans had no right to keep "and carry" arms, to an 1803 edition of Blackstone's Commentaries.
According to the panel, in nearly all of the 19th-century cases and commentaries, the right to keep and bear arms included a right to carry. The authorities that differed relied on reasoning explicitly repudiated in Heller.
The Ninth and Seventh Circuits' holdings create a clear split with the Second, Third, and Fourth Circuits on the issue of carrying weapons in public. Judge O'Scannlain criticized the conflicting circuits' reasoning as not in line with Heller:
"Because the Second, Third, and Fourth Circuits eschewed history and tradition in their analysis of the constitutionality of these regulations, despite the Supreme Court's admonition that 'the public understanding of a legal text in the period after its enactment or ratification' is a 'critical tool of constitutional interpretation,' we find their approaches unpersuasive."
Battle Isn't Over
The opinion, of course, will be appealed en banc and beyond. And the Supreme Court will consider interpreting the phrase "bear arms" in their conference next week. Should they pass, the massive circuit split widened by today's decision should force the Supreme Court's hand in the near future.
But, should the opinion stand, California's odd system, which generally prohibits concealed carry, but allows county law enforcement officials to decide whether a person has demonstrated "good cause" for a permit (stories of counties not issuing permits to anyone outside of law enforcement are far from rare), will fall. As the court noted:
"Thus, the question is not whether the California scheme (in light of San Diego County's policy) allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense."
In other words, the default rule must be shall-issue, unless there is a good reason for not allowing an individual to carry a firearm.
- Peruta v. County of San Diego (Ninth Circuit Court of Appeals)
- More on the reasoning of the Ninth Circuit's right-to-carry-a-gun opinion (Volokh Conspiracy)
- Rage Against the Machine (Gun) (FindLaw's Ninth Circuit Blog)