BREAKING: Ninth Circuit Rules No Second Amendment Right to CCW


A full panel of the U.S. Court of Appeals for the Ninth Circuit today used shameful sophistry and sleight of hand to effectively deny millions of Californians their constitutional right to bear firearms in public for self-defense. The ruling came in the long-running case of Peruta v. San Diego, which challenged California’s discretionary issuance of concealed carry permits, the only option Californians have to legally exercise this right. Ignoring that fact, the court held that concealed carry of firearms in public is not protected by the Second Amendment and the use of discretionary permitting practices does not offend that provision.

We have been reporting on the saga of the Peruta case for a number of years (including here, here, here, and here). The issue in the case is simple: Does the Second Amendment allow California officials to deny the state’s residents the only effective means they have of carrying a firearm in public for self-defense, absent a showing of an extraordinary need to do so? The answer to that question is simple – no – and it was answered correctly in an opinion.

Nevertheless, after that decision was issued, a majority of the full Ninth Circuit Court of Appeals took it upon itself to order the case to be reheard. In reversing the panel’s decision, the full court deceptively recast the issue in the case as whether plaintiffs, who “wish to carry concealed firearms in public” but “do not satisfy the good cause requirements in their counties” nevertheless have a Second Amendment right to be issued concealed carry licenses by a three judge panel of the Ninth Circuit back in 2014. The panel recognized that the question at the heart of the case was “whether responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense?”

The plaintiffs asserted because concealed carry licenses are the only means responsible, law-abiding Californians have to exercise their Second Amendment right to bear arms in California, they cannot be subject to issuance only on a showing of extraordinary need. It was the State of California, not the plaintiffs, that decided concealed carry would be the vehicle state residents had of protecting themselves from violent crime in public.

The plaintiffs’ brief review of the previous decision makes this abundantly clear:

Nor does the panel’s decision establish—either explicitly or implicitly—a constitutional right to carry a concealed handgun in public. To be sure, the decision entitles law-abiding residents of San Diego who can satisfy all other requirements to obtain concealed-carry licenses. But that result is a product of the state’s preference for concealed carry, as reflected in its decision to flatly prohibit open carry but make concealed-carry licenses available for “good cause” shown. Nothing about the panel’s decision prevents the state from altering that preference, and to the extent the Sheriff cannot do so himself, that is a consequence of state law, not the panel’s decision. Accordingly, whether the Second Amendment permits limits on the manner in which the right it protects may be exercised outside the home is a question that the panel’s decision correctly leaves for another day.

While a majority of the Ninth Circuit judges signed onto the decision to deny Californians their rights, three strongly-reasoned dissents, accounting for the opinions of four judges, called out the majority’s chicanery. The dissents correctly point out that it was the State, not the plaintiffs, who established the “concealed carry” permitting context of the case. The dissenting judges also would have explicitly held that responsible, law-abiding Americans certainly do have a right to “bear” arms in public for self-defense, an issue on which the majority claimed to reserve judgement.

According to the dissent of Judge Conseulo M. Callahan (an appointee of President George W. Bush):

Plaintiffs assert that the counties’ concealed weapons licensing schemes, in the context of California’s regulations on firearms, obliterate their right to bear arms for self-defense in public. The Supreme Court in Heller addressed concealed carry restrictions and instructed that those restrictions be evaluated in context with open-carry laws to ensure that the government does not deprive citizens of a constitutional right by imposing incremental burdens. Heller, 554 U.S. 570 at 269 (2008). In the context of present-day California law, the Defendant counties’ limited licensing of the right to carry concealed firearms is tantamount to a total ban on the right of an ordinary citizen to carry a firearm in public for self-defense. Thus, Plaintiffs’ Second Amendment rights have been violated. While states may choose between different manners of bearing arms for self-defense, the right must be accommodated.

She also called the majority’s framing of the case “an elaborate straw man.”

While the majority opinion blithely asserts that people who believe California’s ban on open carry violates the Second Amendment have the option of challenging that ban, they ignore the fact that no provision of California law provides a means for law-abiding citizens to do so for self-defense. Thus, achieving proper standing to mount such a challenge would be difficult for anyone who does not commit a criminal violation of California’s open carry ban.

In the final analysis, the majority opinion does perform one very important public service: It provides the clearest possible example of why liberty-loving Americans need to go to the polls this November and vote for those candidates who will preserve their Second Amendment rights. The consequences of failing to do so could not be clearer.

For a summary of some of the many actions the NRA and CRPA have taken on behalf of California gun owners, click here.

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11 responses to “BREAKING: Ninth Circuit Rules No Second Amendment Right to CCW

  1. I have a CCW permit in another State, and I am registered as a firearms instructor. I understand this ruling by the 9th Circuit to be in the best interest to Californians at this time, however this State is becoming a police state, whereby, an American citizen or peoples of America are guilty until the judge says otherwise. Those with resources make bail, while those without resources stay in jail for how long? California Penal Code and jurisprudence of the law does not allow local law enforcement to solve the case with equity, hence not all police departments are created equal. What needs to happen is for our Legistlators to propose laws that allow police to resolve cases in the field. Give local law enforcement flexibility to protect and defend their assigned duty communities.

    1. “I understand this ruling by the 9th Circuit to be in the best interest to Californians at this time,” I fail to see how you could possibly come to that conclusion, given that it’s an unconstitutional law and you apparently don’t LIVE in California. FTR, I have TWO CCWs in other states, Florida and Arizona, as well as an FFL and I STILL can’t get my local PD to even provide me with the application despite repeated requests. A right delayed is a right denied. I also have no clue what the rest of your comment even has to do with this issue.

  2. This is part of the “Big Picture” attack on our Second amendments rights here in California.
    There’s is ZERO concern for safety and well being of any Resident.
    They would rather have a Full On Paris style attack happen here so THEY can once and for all completely wipe out the Second amendment rights for law abiding citizens.
    What 2 states in our county have been attacked but foreign born terrorist?
    New York and California…Two states with the most rigid gun control laws.
    If you think that was not done by design and that the terrorist don’t know that. Your blind to reality.

  3. For some reason i find this decision by the court to be more distressing than others past. Absent an appeal to SCOTUS, and even that doesn’t lend any guarantees, election results notwithstanding, what options do we have, a ballot initiative? We know the legislature is not going to do anything. The fact that the article even has to point out that a dissenting judge was appointed by a republican President, says what, that judges appointed by democrats won’t rule on the law? Won’t follow not one, but two, SCOTUS precedents on the right to “bear” arms? We are in a sorry State, and a sorry state. I am not native to this State. New York is worse. But i would’ve never imagined 25 years ago when i moved here that this is where things would be on a number of fronts. Go West Young Man, they used to say. But now, go west, but stay away from the west coast. Unless this gets reversed, although my children and now grandchildren are going to make their lives here, my wife and I will retire to Florida. Not going to stay in a communist State, no matter how good the weather is!

  4. How is this decision “in the best interest to Californians at this time”? This has done nothing except further erode the 2nd Amendment in this state. Your law enforcement statements have nothing to do with CCW. I shouldn’t have to rely on Joe Friday to show up in a half an hour when my life is in danger.

  5. This is ripe for the Supreme Court to get involved; the Seventh Circuit has held that it is an individual right, the Ninth Circuit says it isn’t…. Which Court of Appeals got it right?

    The frightening issue for me, is who will occupy the now vacant seat on the Supreme Court; I am less concerned with who occupies the Oval Office for the next four years as I am with who will occupy the Ninth Seat on the court for the remainder of their natural lives…

  6. Whoever didn’t see this coming has no grip on reality. Liberal/Progressive judges appointed by Liberal/Progressive politicians have no problem twisting facts and reality to rig the outcome. The ends justify the means. You better buckle your seatbelts because we are in for a terrifying ride toward total gun prohibition starting here in California. The only hope from this point forward is that citizens wake up and start electing politicians that will roll back the progressive agenda.

  7. When they put the kybosh on the three judge panel decision, what did we expect would happen? I have no doubt that ALL of the LAWYERS that ruled against the second amendment are rabidly anti-gun. And at this time, it will do no good to go to SCOTUS because you know the outcome will be a 4 – 4 decision.

  8. do you wonder why terrorist dont or will not over throw our current society, fact people citizen have the right to bear arms, note if police, sheriff could not stop local riots, what make us think they can stop a good size terror army from invading our country, point most citizen have been soldiers, and most gun owners know the responsibility to bear arms. when our local governments should sway to federal law. one point one fact. lets keep America United States freedom to protect our selves from foreign and domestic terror cells.
    why are we reinventing the wheel?

  9. What justifies the need? California just let a bunch of people out of prison. Possession of meth is now a misdemeanor (a common denominator in violent crime). I live in a county where people call the cops cause someone still their pot plants. The homeless population has doubled in my city and they’re traveling in groups. Gang population also increasing. Heroin also big in my county, it’s the go to if you run out of prescription narcs. I work in a big hospital and have personal experience dealing with these people.

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