There was a lot of action at the Supreme Court yesterday, hidden among which were decisions to take a pass on two Second Amendment cases.
One of them, Peruta v. California, involved that state’s strict standards when it comes to public gun-carrying; applicants for a concealed-carry permit must show “good cause” to the satisfaction of county law enforcement, and open carry is banned almost entirely. The Ninth Circuit upheld the “good cause” requirement as interpreted by the plaintiffs’ local sheriff — the only provision the plaintiffs directly challenged, though they also requested “any further relief as the Court deems just and proper” — and that ruling will now stay in effect in that circuit. Justices Thomas and Gorsuch protested the decision, essentially endorsing the idea that there is a Second Amendment right to carry a gun and saying the Ninth Circuit should not have limited its analysis to the “good cause” requirement, as opposed to the right to carry in general.
That distinction is important. As I noted last month in my piece about concealed-carry reciprocity, it’s hard to argue there’s a right to bear a concealed weapon, because concealed-carry bans have a long history and have typically been upheld against challenges under the Second Amendment and similar state constitutional provisions. There is a good case, however, that open carry is a constitutional right, or at least that states must allow one or the other. The plaintiffs in the case should have more explicitly challenged the regime as a whole rather than focusing on their sheriff’s interpretation of “good cause.”
In the other case, Sessions v. Binderup, the Third Circuit had reached a pro-gun decision, holding that two men convicted of nonviolent misdemeanors had not committed “serious crimes” and could not be barred from gun ownership. (Though misdemeanors under Pennsylvania law, the crimes — corruption of a minor and carrying a handgun without a license — carried long enough potential sentences to be considered “felonies” under the federal law against felon gun possession. Both men ended up paying fines but doing no jail or prison time.) Justices Ginsburg and Sotomayor would have heard the case but did not issue an opinion explaining their reasons.