Posted by Curt on 13 February, 2014 at 2:25 pm. 3 comments already!


Wow!…the most liberal court in the land gets it right:

The Ninth Circuit’s decision in Peruta v. San Diego, released minutes ago, affirms the right of law-abiding citizens to carry handguns for lawful protection in public.

California law has a process for applying for a permit to carry a handgun for protection in public, with requirements for safety training, a background check, and so on. These requirements were not challenged. The statute also requires that the applicant have “good cause,” which was interpreted by San Diego County to mean that the applicant is faced with current specific threats. (Not all California counties have this narrow interpretation.) The Ninth Circuit, in a 2-1 opinion written by Judge O’Scannlain, ruled that Peruta was entitled to Summary Judgement, because the “good cause” provision violates the Second Amendment.

The Court ruled that a government may specify what mode of carrying to allow (open or concealed), but a government may not make it impossible for the vast majority of Californians to exercise their Second Amendment right to bear arms.

Eugene Volokh may be too modest to say so, but the Court cites him four times, to his articles Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009); andThe First and Second Amendments, 109 Colum. L. Rev. Sidebar 97 (2009). I got one cite, for The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. Rev 1359 (1998). [Other modern scholars cited were Nelson Lund, Stephen Halbrook, Clayton Cramer, Joseph Olson, and Joyce Malcolm, all of whom are familiar to longtime VC readers.]

I had participated in the case by filing anamicus brief for the International Law Enforcement Educators and Trainers Association and the Independence Institute, although the particular issue addressed in the brief became irrelevant before the case was decided. At the time of the brief, California law allowed persons to carry an unloaded handgun openly for self-defense, without need for a permit. The District Court had said that this was sufficient for exercise of the right to bear arms for self-defense. The amicus brief explained the mechanics of defensive gun use, and why it is unrealistic to expect that most people will be able to load and use their firearms after the perpetrator has begun a violent felony attack. Subsequent to the filing of the brief, the California legislature changed the statute, so now defensive open carry in any form is also prohibited.

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