Cross-posted on the American Constitution Society Blog
Tomorrow, an en banc panel of the Ninth Circuit will rehear oral arguments in Peruta v. County of San Diego, a case that spawned an originalist opinion last year that would have drastically increased the number of people publicly carrying handguns in California and Hawaii.
California, Hawaii, and seven states outside the Ninth Circuit have “may issue” laws and policies requiring applicants to show a heightened need for self-defense — something beyond a generalizable fear of being attacked — before they can receive a permit to carry concealed handguns in public. The plaintiffs in Peruta wanted to carry handguns, could not satisfy this requirement, and sued in federal court alleging a violation of their Second Amendment rights.
Peruta represents one of the most significant Second Amendment cases since 2008, when the Supreme Court decided District of Columbia v. Heller. In Heller, the Supreme Court held for the first time in over 200 years that the Second Amendment protects an individual right to possess a handgun inside the home for self-defense. In 1791, when the Second Amendment was adopted, modern semi-automatic firearms didn’t exist and elected officials weren’t struggling to find solutions to a massive gun crime problem. But Heller expressly rejected an analysis that took into consideration the government’s interest in dealing with a deadly modern-day problem. Rather, the Heller majority, in an opinion by Justice Scalia, relied almost exclusively on an historical analysis for its conclusion, asserting that “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them.” The history considered in Heller, however, arguably does not dictate Heller’s holding. Liberal and conservative commentators alike have criticized Heller’s originalism for providing a misleading historical cloak for an activist judicial ruling.
Heller left unresolved many obvious issues, such as the scope of the right to bear arms outside the home and how lower courts should decide Second Amendment challenges — through a purely originalist analysis or by applying means-ends scrutiny that would take into consideration the government’s interest in preventing violent crime, death, and injuries. Those issues have been considered by lower courts in the hundreds of legal challenges to firearm regulations since Heller, and they are at the heart of Peruta.
The Second, Third, and Fourth Circuits have held that “may issue” laws like California’s inNew York, New Jersey, and Maryland are constitutional. Those courts, and the majority of lower courts considering Second Amendment challenges since Heller, have refrained from grounding their decisions in originalism. The rejection of originalism as the sole basis for decision making is likely a reflection of the fact that (as in Heller) the history is often disputed and busy judges are neither trained nor equipped to answer nuanced historical questions on the basis of necessarily limited records. When the Second Circuit considered New York’s “may issue” statute in 2012, it found the history “highly ambiguous” and upheld the law under intermediate scrutiny, concluding that the law was substantially related to the achievement of an important government interest — public safety and crime prevention. The Third and Fourth Circuits employed similar analyses to uphold New Jersey’s and Maryland’s “may issue” laws in 2013.
Last year in Peruta, however, a two-judge majority struck down San Diego’s concealed permit policy based on what it characterized as a “complete historical analysis of the scope and nature of the Second Amendment right outside the home.” But despite purporting to conduct a “complete historical analysis,” the majority opinion failed to address evidence of a steady tradition of public carry regulation beginning in England in the 1300s and continuing through the enactment of the Second Amendment and into the nineteenth century. This omission is not surprising; the majority itself conceded that it “will inevitably miss” some historical cases because the briefs filed “[ran] up against word limits.” In a similar vein, many historical gun regulations were not briefed before the initial panel and the historical understanding of public carry regulations is continuously evolving. Meanwhile, the history the majority did use was often unpersuasive, such as relying on the “familiar image . . . of an eighteenth-century frontiersman” for the original understanding of “bear arms,” despite the fact that the vast majority of U.S. citizens at the time of the Second Amendment’s adoption were clustered along the eastern seaboard.
It is no secret that states and cities vary greatly in their appetite for weakening or strengthening gun regulations. While some states have gone so far as allowing firearms in bars and airports, others have chosen to take a more cautious approach, one consistent with the broad scientific consensus that strong gun laws reduce homicide. Firearm laws enacted for public safety reasons by elected officials should not be lightly dismissed on shaky historical grounds. Hopefully, when the Ninth Circuit reconsiders Peruta, it will adopt the approach used by the other federal appellate courts, as well as by the Ninth Circuit in other Second Amendment cases, and uphold San Diego’s “may issue” policy.