Liberal Ninth Circuit Court blows a hole in gun control

By: John Hayward - 2/14/2014

The Ninth Circuit Court of Appeals, aka the Ninth Circus, is hardly a bastion of judicial conservatism.  That makes its decision striking down California gun-control laws all the more earthshaking.  As is often the case with landmark court rulings, the story is far from over there is some more wrangling to be done in the Ninth Circuit before the scene shifts to the Supreme Court, which is likely to intervene due to conflicts with other circuit court rulings.  The next step will probably be a full court review of the 2-1 ruling from this three-judge panel.

Perhaps we will come to view Thursday's ruling as the beginning of the end of the gun-control movement as we have known it in the United States.  If this decision holds all the way through the Supreme Court, some core tenets of that movement will soundly defeated for a very long time to come.  For the moment, as SFGate reports, we have a challenge to a county ordinance that's already blossomed into the evisceration of California's permit system:

California must allow law-abiding citizens to carry concealed firearms in public, a federal appeals court ruled Thursday, striking down the core of the state's permit system for handguns.

In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco said San Diego County violates the Constitution's Second Amendment by requiring residents to show good cause and not merely the desire to protect themselves to obtain a concealed-weapons permit.

State law requires applicants to demonstrate good cause, as well as good moral character, to carry concealed handguns, while leaving the permit process up to each city and county. The ruling, if it stands, would require local governments to issue permits to anyone of good moral character who wants to carry a concealed gun for self-protection.

The right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense, Judge Diarmuid O'Scannlain said in the majority opinion.

As SFGate notes, this ruling disagrees with opinions from courts in New York, New Jersey, and Maryland, but agrees with one from Illinois, so it seems highly likely that the Supreme Court will step in.  After decades of agonizing debate, the political class may finally be forced to acknowledge that the Second Amendment says what it says.  What if this is the beginning of a legal avalanche that obliges politicians to admit the rest of the Constitution and Bill of Rights exist, too?  What a strange new world we might end up living in.

The Ninth Circuit decision is positively brimming with common sense:

California has long had some of the nation's strongest restrictions on gun ownership, and, according to the court, is one of only eight states that allow local governments to deny concealed-weapons permits. The state formerly allowed residents to carry unloaded firearms in public, with ammunition in a separate container, but repealed that law at the start of 2013.

The ban on openly carrying guns made it impossible for most law-abiding citizens in counties like San Diego to bear arms for self-defense, O'Scannlain said in Thursday's ruling. He said the Second Amendment guarantee of the right to bear arms must include the right to carry weapons outside the home.

The risk of armed confrontation is not limited to the home, O'Scannlain said. He invoked the situations of a woman toting a small handgun in her purse as she walks through a dangerous neighborhood, or a night-shift worker carrying a handgun in his coat as he travels to and from his job site.

C.D. Michel, lawyer for the National Rifle and Pistol Foundation and individuals who challenged the San Diego County system, said sheriffs in many rural California counties already comply with the court's standard by issuing gun permits to anyone who wants one for self-defense. But urban counties require evidence of a special need for a weapon, the requirement that the court invalidated, he said.

�The right to self-defense doesn't end at your threshold, Michel said. He said the ruling is �probably the biggest Second Amendment win since the Supreme Court's 2008 ruling and a follow-up decision in 2010.

Oh my Gawd, he's right, people do get attacked outside their homes!  It seems so obvious now.  The truth of the right to keep and bear arms was staring us in the face the whole time!  There is even a passage in the Ninth Circuit's ruling that points out the right to keep and bear arms directly endorses carrying loaded and ready firearms around, because that is that is the meaning of the verb bear.  That must be why the Second Amendment doesn't protect the right to store guns in your closet!

Another major issue in this ruling was whether citizens could be forced to jump through hoops and prove they had a compelling need to exercise their Second Amendment rights.   The citizen was expected to demonstrate a unique risk of harm for example, serious physical menace from a stalker  in order to secure a concealed-carry permit.  The primary plaintiffs in the case were people whose applications for concealed-carry licenses were denied because they couldn't give the authorities a good enough reason for wanting one.  (People usually get weeks of advance notice before they're attacked by criminals, right?)

The court correctly sees this as an unreasonable infringement upon the right to keep and bear arms.  I would submit such requirements are the antithesis of an inalienable right.  It's not inalienable if you have to beg the government to let you exercise it; the citizen is placed on defense in a power relationship where the State was meant to be submissive.  Once we accept that core rights are negotiable, the negotiations don't end until the right in question has shriveled away to nothing.

Restricting the access of known criminals to guns is one thing, but the California laws went too far towards treating every citizen as a criminal unless he could conjure a compelling and immediate reason to be treated better by the authorities.  Overweening state and federal bureaucracies hold that everyone is a criminal until proven otherwise mindset far too often.  It's a natural consequence of the growth of government power.

Another tactic of left-wing jurisdictions that came in for a beating in the California decision was the tendency to set hurdles so high that exercise of a constitutional right became largely theoretical.  In this case, the court said it was impermissible to ban both concealed and open carry.  Economist John Lott, a prominent critic of gun control measures, notes that the hurdles in California are so high that only political cronyism is likely to secure a concealed-carry permit:

Ironically, California may have opened the door to make it much easier for people to get concealed handgun permits by recently banning people from openly carrying guns. The court wrote that while it might indeed be constitutional for a state to ban concealed handguns or to ban people openly carrying handguns, it simply can't ban both options.

Counties such as Los Angeles have only let a few hundred people get concealed handgun permits out of 7.5 million adults. In San Diego, only about 700 out of 2.4 million can carry. And in San Francisco, no one is granted a permit to carry a gun.

In Los Angeles and Orange Counties, the few lucky people getting permits are big donors to a sheriff's re-election campaign or a sheriff's personal friend. In other counties, such as Stanislaus County in northern California, the key to getting a permit seems to be either an influential politician or a prominent businessman.

There are over 11 million concealed handgun permits nationally.Yet, the right to defend oneself in California has largely been limited to the very well-to-do and to the politically powerful.

Behold the liberal utopia: only the Ruling Class is legally allowed to carry guns, leaving everyone else at the mercy of well-armed criminals as the streets run red with blood.

As Lott notes, even if the Ninth Circuit ruling stands and causes a nationwide Second Amendment earthquake when it hits the Supreme Court, gun-control zealots will continue attacking the right to keep and bear arms by imposing ostensibly less onerous requirements that have the practical effect of making guns nearly impossible for law-abiding citizens to obtain, or make firearms incredibly expensive, so that only the Ruling Class can legally afford them.

But the core principles of the gun-control movement are being destroyed, hard on the heels of a disastrous political year for them, in which they failed to rally significant public support behind their cause despite media-fueled exploitation of horrible crimes.  When you take away the gun-control planks broken by these recent court rulings, what's left except a relatively minor debate over the precise details of licensing?  Who is a louder and more persistent voice for reasonable gun safety than the NRA?  Shall-issue carry laws enjoy overwhelming support from police officers (Lott pegs it at 91 percent currently.)  Those who actually know something about the realities of self-defense are lined up against the gun control movement, which stands revealed as the most dangerous incarnation of gesture liberalism, the tendency to support laws and programs that express ideological preferences and good intentions at the expense of individual rights and common sense.