A 2-1 decision in the Ninth U.S. Circuit Court of Appeals rules that California will allow law-abiding citizens to carry concealed firearms in public. The decision strikes down the core of California’s permit guidelines for handguns.
State law will require gun-carrying residents to show “good cause” beyond self-protection in order to obtain a concealed-carry permit.
C.D. Michel, the lawyer for the National Rifle and Pistol Foundation, argued that “The right to self defense doesn’t end at your threshold.” The U.S. Supreme Court ruled in 2008 that citizens have the right to keep a handgun in their home for protection, but has not ruled on carrying weapons in public.
Should Californians have the right to carry concealed guns? How will the state regulate these weapons? How might this issue fare before the Supreme Court?
Chuck Michel, Attorney, Michel & Associates, lead attorney in the concealed carry case and lawyer for the National Rifle Association; author of "California Gun Laws: A guide to state and federal firearm regulations"
Adam Winkler, Constitutional law professor at UCLA; author of Gunfight: The Battle over the Right to Bear Arms in America (2011); writer for The Huffington Post & Daily Beast
Did you think you had a good chance to prevail in this?
Chuck Michel: "Well, you never know, that's like trying to predict what a jury's going to do when they come back in, there's so many intangibles, but we were obviously hopeful. We made all the arguments that the court accepted, a lot of the court's opinion adopted all the claims that we made in our brief, so it's a great ruling."
How soon will sheriffs in urban counties have to provide concealed carry permits?
CM: "We're a ways from this becoming an order. This is the court of appeals decision. The court of appeals reversed the district court, the trial court's, ruling that said that it wasn't a Second Amendment violation and sent it back down to the trial court. But before it goes back down to the trial court the county will have an opportunity to ask the Ninth Circuit to review the decision, and potentially to ask the Supreme Court to review the decision of the Ninth Circuit here, so, before this case goes back down to the trial court and the trial court issues an order, it has some other steps to go along the way.
That order would only apply in San Diego for now, but obviously this case establishes a precedent. We have a case in Orange County right now that makes the same claims. It's been stayed pending this opinion, so any city that has a similar requirement that you establish some special need to get a license, something beyond just the need for self defense is going to be vulnerable, but not automatically struck down by virtue of this opinion."
Does the ruling surprise you?
Adam Winkler: "It's surprising in one way. There are three other federal courts of appeals that have gone the other way, that have held that state or cities restrict concealed permits to only those who show good cause are Constitutionally permissible, so it's surprising in that way. It's not surprising in another way. A couple years ago in 2011, California passed a law banning people from carrying openly unloaded weapons. That law, when that was passed, my self included, warned that that would lead to today's ruling.
As the court said today, we need to give some people some opportunity to have a gun in public for self-defense under the Second Amendment. Because California took, I think a foolish step two years ago by banning open unloaded carry, it's going to make it a lot easier for people to get concealed carry permits and we're going to have a lot more guns on the streets of Los Angeles and San Diego than we would have ever had under open carry rules."
Do you think at some point that it's likely that sheriffs and police chiefs are just going to start issuing these routinely if they see the legal handwriting on the wall?
AW: "I think that may happen in some circumstances, but my sense is that most sheriffs, especially in places like Los Angeles and San Diego and San Francisco are going to really fight this to the very end. In fact, I think there's a good chance that this case tees up the question of concealed carry permits for the United States Supreme Court.
The court has ruled on two major Second Amendment cases in recent years, in both time suggesting that the right to bear arms protects the right to have a gun in your home. But not making it clear whether the Second Amendment applies outside of the home. I think the Supreme Court is likely to step in and sheriffs are going to try to pursue these cases until they get a Supreme Court ruling requiring them to give up those permits."
If there is an en banc review of a larger panel of the Ninth Circuit, do you think it would likely go to the Supreme Court after that regardless of what the larger panel decided:
AW: "I think it would be far more likely to go to the Supreme Court if the larger panel of affirms today's ruling and says that people have a right to get a concealed carry permit, even if they don't have good cause to get such a permit. If the larger court does not rule in that way, then you have the Ninth Circuit ended up being very consistent with the other circuits who have ruled on this...and that makes it less likely that the Supreme Court steps in."
Do you agree with this legal analysis?
CM: "Essentially, there is definitely a circuit split now between the Second, Third and Fourth circuits and the Ninth and Seventh circuits because we did have the Shepard and Moore cases out of the Seventh Circuit, which struck down Illinois ban on carrying firearms in public, and they've recently set up a licensing scheme for folks to be able to get the permits to carry in public. It's definitely going to be addressed by the Supreme Court sooner or later..."
Some listeners think this will increase gun violence on the streets. How do you respond to that?
CM: "Licensed carry of firearms in public is not the problem, in fact in the 40-odd states now that require the issuance of a license to carry a gun in public for self defense, the violent crime rate actually goes down, because the bad guys don't know who might have a gun and usually about 5 percent of the people in any given state actually get a license, less than 5 percent actually carry a gun because it's actually kind of a pain, literally...Interestingly sometimes property crimes go up because there's no human victim there that might shoot back. It's not the licensed firearms in public that are the problem, it's the unlicensed guns that are in the hands of criminals that are the problem."
In those must-issue states, do you see an increase in tensions and gun violence?
AW: "It doesn't happen very often. What we've seen is in states that allow concealed carry permits, there is some evidence that maybe some of the violent crime goes down. There have been some conflicting studies on this and studies supported by the gun control community, even those studies show that if there's any effect it's negligible, but more importantly, it's pretty clear that it doesn't lead to spikes in violence...We may see some incidents here and there, but overall its not going to make a big difference. I think Chuck is right, the people who are law abiding, licensed concealed carry holders are not really the people we need to worry about in terms of committing violence."
Full court ruling: