Bench Memos

Ninth Circuit Confirms a 2nd Amendment Right to Carry

As I reported here and here, federal appellate judges around the nation have been inconsistent on the matter of carrying firearms outside the home. Most states in the U.S. have a “shall issue” policy, which means they will issue a permit for carrying a firearm to law-abiding applicants who have cleared a background check and passed a safety course. Some jurisdictions, however, opt for “may issue” policy, which allows them to pick which citizens will enjoy their Second Amendment rights and which will not.

You can add the U.S. Court of Appeals for the Ninth Circuit into the mix, which ruled yesterday that San Diego County could refuse to establish a “shall issue” open-carry policy or a “shall issue” concealed-carry policy, but not both.

In short, the ruling reminds San Diego County that there is a Second Amendment, and that it applies to citizens regardless if they are inside their home or away from it. The three-judge panel noted (internal citations omitted and hyperlink added):

Speakers of the English language will all agree: “bearing a weapon inside the home” does not exhaust this definition of “carry.” For one thing, the very risk occasioning such carriage, “confrontation,” is “not limited to the home.” Moore v. Madigan. One needn’t point to statistics to recognize that the prospect of conflict—at least, the sort of conflict for which one would wish to be “armed and ready”—is just as menacing (and likely more so) beyond the front porch as it is in the living room. For that reason, “[t]o speak of ‘bearing’ arms within one’s home would at all times have been an awkward usage.” Id. To be sure, the idea of carrying a gun “in the clothing or in a pocket, for the purpose . . . of being armed and ready,” does not exactly conjure up images of father stuffing a six-shooter in his pajama’s pocket before heading downstairs to start the morning’s coffee, or mother concealing a handgun in her coat before stepping outside to retrieve the mail. Instead, it brings to mind scenes such as 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.

In D.C. v. Heller, the U.S. Supreme Court held that “the inherent right of self-defense has been central to the Second Amendment right.” Here, the Ninth Circuit panel reasoned that the “most acute” need for the Second Amendment described in Heller implies that there is a less acute need outside the home, but a need nonetheless protected by our Constitution.

The Ninth Circuit notes the very relevant holding in Moore, namely that “to confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald [v City of Chicago].

Many of the courts that have not upheld this right fail to give much of a substantive basis for their ruling. In 2011, for example, the Fourth Circuit sidestepped the question entirely in U.S. v. Masciandaro, stating, “We think it prudent to await direction” from the Supreme Court.

The Ninth Circuit panel also noted that, because Heller and McDonald focus on the self-defense aspect of the Second Amendment, their decision yesterday is cabined to the self-defense issue before them and is not to be used to suggest the outer limit of this Constitutional right. Readers may be interested to know that, in a dissent when the Ninth Circuit rejected an en banc hearing to review Silveria v. Lockyer, Judge Alex Kozinski offered a possible answer to the outer limit of the Second Amendment:

The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

I will keep Bench Memos readers up to date on developments on this case, as further appeals seem likely. In the meantime, readers can bookmark this excellent rundown over at the Volokh Conspiracy on how different courts have ruled on the matter of firearms outside the home. As for yesterday’s decision, you can read the whole 127-page ruling here

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