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SECOND AMENDMENT RIGHT TO CARRY A CONCEALED WEAPON IN PUBLIC

Peruta et al. v. County of San Diego et al., ____ F.3d ___ (9th Cir. 2014), Case Number 10-56971, is a Second Amendment case.   Ed Peruta challenged the concealed carry license issuing policies in San Diego County. He applied to obtain a conceal carry license but was denied. He desired to carry a gun for self-defense and to protect his family.

Peruta issue: “We are called upon to decide whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.”

On February 13, 2014, the Ninth U.S. Circuit Court of Appeals three judge panel ruled in a 2 to 1 decision that California law requiring “good cause” to obtain a concealed-carry firearms permit violates the Second Amendment.  Such requirement prohibits law-abiding citizens from obtaining permits based on a generalized desire to defend themselves.  It is unconstitutional to confine the “right to bear arms” solely to the home.

“California has one of the most restrictive gun regulatory regimes in the nation.”

“…a law that destroys (rather than merely burdens) a right central to the Second Amendment must be struck down.”

“For if self-defense outside the home is part of the core right to ‘bear arms’ and the California regulatory scheme prohibits the exercise of that right, no amount of interest-balancing under a heightened form of means-ends scrutiny can justify San Diego County’s policy.”

San Diego County’s policy of likening “good cause” with heightened “special need,” such as, for example, specific dangers or threats, violates the right to “bear arms” as envisioned by the framers of the Second Amendment.

The history of Second Amendment case law, most recently, District of Columbia v. Heller (2008) 554 U.S. 570 (federal level application) and McDonald v. City of Chicago (2010) 130 S.Ct. 3020 (nationwide application), hold that the Second Amendment protects the rights of individuals to protect themselves.  The right is not limited to collective self-defense through the organized militia.

“…with Heller on the books, the Second Amendment’s original meaning is now settled in at least two relevant respects. First, Heller clarifies that the keeping and bearing of arms is, and has always been, an individual right. Second, the right is, and has always been, oriented to the end of self-defense. Any contrary interpretation of the right, whether propounded in 1791 or just last week, is error.”

The Peruta ruling further asserted that “...the Second Amendment secures an individual right...to carry in case of confrontation means nothing if [it does]not [include] the general right to carry a common weapon outside the home for self-defense.” 

Further, “[a]s the historical sources have repeatedly noted, the state has a right to prescribe a particular manner of carry, providing that it does not cut off the exercise of the right of the citizen altogether to bear arms, or under the color of proscribing the mode, render the right itself useless.”

The majority stated that it is "well aware that, in the judgment of many governments, the safest sort of firearm-carrying regime is one which restricts the privilege to law enforcement with narrow exceptions."  But the Second Amendment’s constitutional protections take certain policy decisions off the table.

Only one other federal appeals court, the Seventh Circuit, has ruled that the constitutional right to have a gun for personal use continues when one leaves home.  Other appeals courts have refused to guarantee a right to carry a gun beyond the walls of the home.  Therefore, there is a strong probability that the U.S. Supreme Court ultimately will resolve the issue.

See also  Does the Bible infer or proclaim any fundamental right to bear arms?

Does the Second Amendment of the U.S. Constitution recognize a fundamental, individual's right to bear arms?

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