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How to Pick a Fight

A California case demonstrates how NRA chooses its battles in the continuing fight to ensure our firearm freedoms

By Dave Kopel

America's 1st Freedom, Jan. 2010. More by Kopel on the Peruta case, including his amicus briefs.

Does your Second Amendment Right to Keep and Bear Arms end at the doorstop of your home?

That’s the key issue in Peruta v. San Diego, an NRA-backed case that is challenging a sheriff’s policy of denying Right-to-Carry permits to law-abiding, trained citizens.

Currently there are 10 states that frequently deny citizens their constitutional right to bear arms for lawful self-defense: California, Hawaii, Wisconsin, Illinois, New York, New Jersey, Delaware, Maryland, Massachusetts and Rhode Island. The particular laws and the strategies for fixing the problem vary from state to state. In California, the best current approach is through the courts.

The lead attorney in Peruta is Chuck Michel, a former prosecutor who is one of the most expert California lawyers on Second Amendment issues. The five individual plaintiffs each have good personal stories about why they need to carry a firearm for self-defense. As plaintiffs, they are joined by the California Rifle and Pistol Association, which is suing on behalf of all its members in San Diego County.

Already the pro-rights side has won an important procedural victory in this battle. San Diego Sheriff William Gore, the defendant in the case, filed a motion to dismiss. This type of motion is filed when a plaintiff has failed to state a legally valid cause of action. For example, suppose that somebody sued Time magazine because that person wanted to be named Time’s “person of the year.” Time would file a motion to dismiss, and the court would grant the motion, because Time has no legal obligation to choose any particular individual as “person of the year.”

So Sheriff Gore filed a motion to dismiss, arguing that there is no Second Amendment right to carry a concealed gun in public places. Federal district court Judge Irma E. Gonzalez rejected the sheriff’s motion. She wrote an opinion stating that the Second Amendment does guarantee a right to carry, so the lawsuit would be allowed to proceed. (If you have access to a law library, her decision is available at 678 F.Supp.2d 1046.)

Of course, the judge’s decision on the motion to dismiss is not a final decision on the law. However, that decision could come at any time since both parties have filed motions for summary judgment, which ask the court to decide the case without holding a trial.

As is typical in NRA-supported cases concerning the Second Amendment, Peruta is carefully and narrowly constructed. Notably, Peruta does not seek to have California’s concealed handgun licensing law declared unconstitutional. Rather, the plaintiffs simply ask that the law be enforced fairly, so that it is consistent with the Second Amendment.

The California law states:

“(A) The sheriff of a county, upon proof that the person applying is of good moral character, that good cause exists for the issuance and that the person applying satisfies any one of the conditions specified in subparagraph (D) and has completed a course of training as described in subparagraph (E), may issue to that person a license to carry a pistol, revolver or other firearm capable of being concealed upon the person …” (California Penal Code § 12050(a)(1)).

Generally speaking, in California it is forbidden to carry a loaded firearm in public unless you have a Right-to-Carry permit. There are a few exceptions—those actually engaged in hunting or target shooting can carry loaded guns without a Right-to-Carry permit.

So can individuals who are under immediate threat. California law allows carry, without a permit, by those who are the beneficiaries of a court-issued restraining order against a stalker or similar predator. Unlicensed carry is also allowed if a person “reasonably believes that the person or property of himself or herself or of another is in immediate, grave danger and that the carrying of the weapon is necessary for the preservation of that person or property.” It is also lawful to carry in one’s own residence.

However, none of these exceptions apply to a person who faces a high, but generalized, threat of criminal attack. For example, a person might live in a tough neighborhood where there is a serious risk that she might be attacked at any time on the streets. But since nobody in particular has announced a direct threat to victimize her in the near future, the only way she could carry a handgun in public in California would be with a Right-to-Carry permit.

Unfortunately, Sheriff Gore, like many California sheriffs, prohibits nearly every citizen from being issued carry permits. As one of the sheriff’s court filings explained, “Simply fearing for one’s personal safety alone without documentation of a specific threat is not considered good cause.”

That is the policy which is being challenged in Peruta. The plaintiffs do not challenge the training requirement. They do not challenge the requirement that a licensee be of “good moral character.” They do not even challenge the requirement that a licensee must have “good cause.”

What the plaintiffs do challenge is the sheriff’s fiat that lawful self-defense is not “good cause.”

The key to resolving the case is found in the District of Columbia v. Hellerdecision itself, and what it stands for.

Sheriff Gore, with support from an amicus curiae brief filed by the Brady Center to Prevent Gun Violence, contends that Heller has no applicability outside the home. They assert that the right protected by the Heller case is only a right to have a gun inside the home.

However, in an amicus brief that I filed in support of the plaintiffs, I suggested that Sheriff Gore and the Brady Center were misreading Heller. The amicusbrief was filed on behalf of the Independence Institute, Center for Constitutional Jurisprudence, Doctors for Responsible Gun Ownership and Law Enforcement Alliance of America. Professor John Eastman, an experienced U.S. Supreme Court litigator, joined me on the brief.

To begin with, the Second Amendment guarantees the “Right to Keep and Bear Arms,” not just to “keep.” According to Heller, “the Right to Keep and Bear Arms” is “the individual right to possess and carry weapons in case of confrontation.”

Further, Heller states that the Right to Keep and Bear Arms does not bar “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” The obvious and inescapable implication is that there is a Right to Carry firearms in places that are not “sensitive.”

Second, in Heller, Justice Antonin Scalia’s opinion discussed several state court cases from the 19th century, all of which Scalia praised for presenting the correct understanding of the Second Amendment. These cases—Nunn v. State (Georgia, 1846), State v. Reid (Alabama, 1840) and State v. Chandler (Louisiana, 1850)—all said that the Right to Keep and Bear Arms includes the Right to Carry in public.

Notably, the Heller Court specifically rejected the assertion from another 19th century case that there is a right to keep arms in the home but not to carry them for self-defense in public (Aymette v. State, Tenn., 1840).

There is, however, a complication. The Heller Court explicitly said that concealed carry of handguns could be banned. The Court’s statement was consistent with many 19th century cases, including the ones mentioned above, which upheld Right-to-Carry bans. Of course, Sheriff Gore and the Brady Center put great effort into emphasizing this language from Heller.

However, they miss a larger point. Heller itself, like its state court antecedents, affirmed a general Right to Carry, while authoring the prohibition of concealed carry. So if California allowed open carry and banned concealed carry, there would be no Second Amendment problem, at least according to the Heller Court.

Unfortunately, California essentially outlaws open carry. In a few rural counties, the sheriff is allowed to issue an open carry permit, instead of a concealed carry permit. Other than that (and other than open carry while engaged in hunting or target shooting), it is illegal to carry a loaded gun openly in California.

It is still legal to carry an unloaded gun openly, although the gun prohibition lobbies came very close to outlawing that, too, in the 2010 session of the legislature. Regardless, an unloaded gun is obviously useless for self-defense, especially against the kinds of sudden attack that can occur in public places. The ability to carry an unloaded gun is certainly no substitute for the right to bear a loaded firearm.

Given the legal weaknesses of the argument that almost the entire public can be denied the right to bear a functional firearm, it is not surprising that Sheriff Gore and the Brady Center attempt to divert the court’s attention by making policy arguments. In essence, they claim that allowing citizens to carry handguns for lawful self-defense would terribly endanger public safety.

But the fact is the Constitution of the United States of America already resolves the policy issue. There are pro and con public safety arguments that can be made about whether police officers should be able to search homes without needing to get a warrant from a judge, about whether people accused of a crime should be allowed to refuse to answer questions or about whether some types of potentially dangerous newspaper articles should only be published if government officials approve them in advance.

In all these situations, the people of the United States, by enacting the Bill of Rights, decided that the safest policy, in the long run, is strong protection for personal rights. Likewise, the American people decided that the best policy for public safety is to guarantee the Right to Keep and Bear Arms. If a judge or an anti-gun group thinks that the Second Amendment was a mistake, the proper action would be to propose that the Second Amendment be repealed. Indeed, several years ago U.S. Rep. Major Owens, D-N.Y., introduced just such a bill.

Sheriff Gore and the Brady Center also offer various warnings that Right-to-Carry is very dangerous. Yet, practical experience shows just the opposite. In 40 American states, including every state that borders California, licensed carry has proven to be successful.

Years of statewide data gathered from Minnesota, Michigan, Ohio, Louisiana, Texas and Florida—all of which treat self-defense as a good cause for Right-to-Carry permits—show that people with such permits are much more law-abiding than the general population.

Against the mass of data, the anti-gun lobbies use Google to find instances of alleged malfeasance by carry licensees. Quite often, these lists are inaccurate. For example, as I pointed out in my amicusbrief, the Brady group and the Violence Policy Center both claim that court records show a homicide perpetrator in Minnesota had a Right-to-Carry permit. In fact, the criminal had no such permit, and no court record claimed that he did. It was simply hogwash.

Notably, because of the stringent state law, the only individuals in California who could obtain a Right-to-Carry permit are those who pass a safety training class and who pass a fingerprint-based background check and who are found by the sheriff to be of “good moral character.” There is absolutely no basis for the fear-mongering, bigoted claim that exemplary persons such as these are somehow a menace to society. To the contrary, they will help protect society by thwarting and deterring violent criminals.

Putting aside the Second Amendment, there’s another problem with the San Diego Sheriff’s Department practices. Although Right-to-Carry permits are off-limits to almost all ordinary citizens, they appear to be readily obtainable by people who join the “Honorary Deputy Sheriff’s Association.” This is a membership group of people who make a “donation” and pay annual dues that are used for the benefit of the San Diego Sheriff’s Department.

Sheriff Gore denies any favoritism in issuing permits to Sheriff’s Association members.

It’s possible that federal district Judge Gonzalez in Peruta v. San Diego will decide to hold a trial in order to get to the bottom of the Sheriff’s Association issue. It’s also possible that the judge will decide that she doesn’t need to resolve the favoritism accusation because the rest of the case is so factually clear: Sheriff Gore admits that he will not issue permits to the approximately 99 percent of citizens who are unable to prove a specific and imminent threat.

In the long run, there’s a good chance that Peruta or a similar case will come before the federal Ninth Circuit Court of Appeals, which covers all of the Pacific Coast states plus Arizona, Nevada, Idaho and Montana.

Because California has one-ninth of the entire U.S. population, whatever happens there has tremendous implications for Second Amendment rights in the rest of the country. Moreover, while the Second Amendment itself is over two centuries old, most Second Amendment issues are brand-new to federal courts, which are only just now beginning to examine the legal contours of the right that was recognized in 2008 in Heller. The next several years of judicial decisions will be especially crucial.

The NRA’s litigation strategy is to bring solid cases with lawyers who have a track record of success in gun rights cases.

To some people, that’s not as satisfying as shouting “shall not be infringed” while filing cases that, at present, have no possibility of success. Preserving the Second Amendment for the next generation depends on targeting cases we can win now, not going down in flames on hopeless cases that create bad precedent—and that will make future victories all the more difficult.

Winning cases in the federal courts also depends on who the federal judges are. President Barack Obama has already demonstrated that he will appoint judges who disdain Second Amendment rights.

For example, President Obama has nominated law professor Goodwin Liu for a seat on the Ninth Circuit Court of Appeals. In the January 2003 issue of TheGeorgetown Law Journal, Professor Liu co-authored an article with Senator Hillary Clinton in which they criticized Supreme Court cases that had found gun control laws unconstitutional (U.S. v. Lopez; Printz v. U.S.). They also criticized the Fifth Circuit’s decision in United States v. Emerson (2001) because that decision said that the Second Amendment protects “an individual right to bear arms.”

Electing a president in 2012 who will appoint judges who respect all of the Constitution may be decisive in determining whether the Second Amendment develops into a significant element of constitutional law. Alternatively, if President Obama gets another four years to mold the federal judiciary, then the Brady Campaign may succeed in convincing federal courts to rule that there are no Second Amendment rights outside of the home—thus, in effect, nullifying the Right to Keep and Bear Arms.

Dave Kopel is a frequent America’s 1st Freedom contributor, attorney and constitutional scholar. His amicus brief in Peruta v. San Diego is available at www.davekopel.com/Briefs/Peruta-v-San-Diego-Amicus-Brief.pdf

 

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