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Ninth Circuit Sends Conflicting Messages on Gun Rights

Two recent decisions from the United States Court of Appeals for the Ninth Circuit send conflicting messages on gun rights.

In the earlier case, San Diego County required applicants for a concealed carry permit to show good cause for carrying a concealed weapon.  It was the County’s position that a generalized need for personal safety did not satisfy this requirement.  In February of this year, the  Ninth Circuit Court of Appeals found that the County’s policy abridged the right to bear arms recognized by the United States Supreme Court in the 2008 case of District of Columbia vs. HellerHeller focused on an individual’s right to keep and bear arms in their home for personal protection.  In the San Diego case, the Ninth Circuit built upon this and found that the right to keep and bear arms in self-defense “could not rationally be limited to the home.”  Accordingly, the Court found that a generalized need for self defense outside the home satisfied the good cause requirement, and rejected the County’s contrary position.

Many gun rights advocates view this as a major victory, at least in part because the decision comes from a Court that has historically been largely hostile to gun rights.  However, the Ninth Circuit’s decision is not necessarily a significant blow to unreasonable gun control regulations.  States and counties could satisfy the requirements of the Court’s decision by accepting that a generalized need for self defense satisfies the good cause requirement while, at the same time, enacting any number of factors that would automatically disqualify individuals from obtaining concealed carry permits.  This approach would effectively accept the proposition that a generalized need for self defense constitutes good cause for a concealed carry permit, but still allow the authorities to disqualify applicants for other purportedly unrelated reasons that would presumably be listed in the applicable State statute(s).  Such reasons could include a criminal record for an extremely minor, non-violent offense, or the proximity of the applicant’s home or workplace to a school, park, or other facility where small children congregate.

Additionally, the fight on this issue is probably not over.  The ruling runs contrary to decisions from Courts in New York, New Jersey and Maryland, but is consistent with a decision from Illinois.  Because of this conflict among the Courts and the importance of the issue, there is a strong likelihood that this case will go to the United States Supreme Court, and a final decision on the issue could still be years away.  Thus, gun rights advocates may find the Ninth Circuit case encouraging, but must also bear in mind that it probably is not the final word on the subject.

Further, the Court’s February concealed carry decision contrasts with a March decision finding that San Francisco did not inhibit Second Amendment rights by requiring gun owners to lock up or disable their weapons, and in banning hollow point bullets.  The former requirement stemmed from the so-called “Safe Storage Law”, which mandated that handguns be stored in locked containers when not being carried, even within private homes.  The other issue was the prohibition within the City of the sale of fragmenting and expanding (“hollow-point”) bullets, which can cause more damage than standard ammunition.  The Court found that the City carried its burden of demonstrating a significant Government interest supporting the need for the subject regulations, and that the regulations withstood Constitutional scrutiny because they limited, but did not destroy, Second Amendment rights.

As with the concealed carry case, this case could also be reviewed by the full Ninth Circuit sitting en banc, or by the United States Supreme Court.  Thus, reading too much into either of these cases at this juncture is probably premature.  Gun rights advocates must therefore adopt a “wait and see” approach until truly final rulings are issued.