The latest chapter in the battle pitting gun owners who want to carry their weapons in public against California sheriffs who rarely grant such requests played out Tuesday in the 9th Circuit Court of Appeals in San Francisco.
But the exchange was more humdrum than heated and, at the end of the oral arguments, more questions than answers remained. The future of concealed carry permits in California is now in the hands of the 11 judges, who are expected to reach a final decision in the coming months.
A 90-minute barrage of questions from the judges probed seemingly every corner of the two federal cases but didn’t linger on any one point for long, leaving few clues to their leanings.
At the core of the cases is whether simply claiming self-defense is a good enough reason to receive a gun carry permit. In many states it is – California is one of a handful of states that grant officials discretion to demand more.
“We think self-defense can satisfy the good cause requirement,” said Paul Clement, arguing on behalf of the lead plaintiff in the case against San Diego County who was denied a permit in 2009.
A judge quickly cut off Clement, and asked, “So any claim of self-defense should be justifiable?”
“No, I don’t think so,” Clement responded. “The county didn’t deny my client because our argument wasn’t good in the abstract. We were denied because the county has a strict policy.”
The case’s import could be seen in the draw of Tuesday’s hearing. The small courtroom was packed with spectators from around the state, with others turned away because there were no empty seats. At one point, courtroom staff had to bring in more chairs to accommodate all of the lawyers arguing the case.
One issue in the lawsuit that gained some traction concerned the dramatically different interpretations of state concealed gun law from county to county. That law leaves it up to local law enforcement agencies – typically the county sheriff – to approve or deny applications. As a result, more that half the state’s active concealed carry permits are clustered in seven counties, while others rarely issue permits.
Even though three other federal appeals courts have upheld state laws similar to California’s, Clement argued that the wide discretion given to county officials makes this case different.
While the focus of the cases initially centered on the strict policies of two county sheriffs, the court’s decision last year in favor of gun owners prompted the state attorney general’s office to intervene, arguing that the ruling undercut its ability to regulate permits across the California.
In a rare response, the court agreed to rehear the case, tossing out its previous decision.
The two cases, Peruta v. San Diego and Richards v. Prieto, were consolidated by the court because their arguments against the state’s “good cause” requirement are so similar. The outcome potentially could upend California’s system of issuing concealed gun permits, which currently gives local law enforcement agencies wide discretion to deny applicants. As a result, some counties, such as Sacramento, approve hundreds of permits a month, while others, such as San Francisco, deny almost every one.
“My client’s complaint is not with the (state’s) statutory scheme,” Clement said. “The scheme itself can be interpreted to respect Second Amendment rights. The source of the difficulty here isn’t with San Diego’s scheme; it’s with their interpretation (of state law). If my client was so fortunate to live in Sacramento County, there would be no objection.
The cases are considered by many to be the most important gun-related lawsuits in the country, with the potential to expand on a 2008 U.S. Supreme Court ruling that found the Second Amendment guaranteed the right to own a gun for self-defense in the home. That decision fundamentally shifted the court’s interpretation of the Second Amendment, finding it “was clearly an individual right, having nothing whatever to do with service in a militia.”
It stopped short of addressing whether the right to a gun extends to public spaces. This left room for a challenge such as the Peruta or Richards cases, which argue that California’s two primary requirements for a concealed carry permit – that applicants demonstrate “good cause” and are of “good moral character” – violate the Second Amendment.
While state Solicitor General Edward DuMont acknowledged at one point during Tuesday’s oral arguments that the Second Amendment “may apply outside the home,” he was adamant that didn’t make California’s rules unconstitutional.
“There’s a long and rich tradition of regulating guns in public,” DuMont told the judges, adding that the Supreme Court’s previous rulings on gun-related cases “make clear that restrictions on concealed carry weapons … don’t conflict with the Second Amendment.”
“What California is doing here is regulation,” DuMont said. “It’s not a ban.”
It remains unclear if the court will grant the attorney general’s request to intervene in the Peruta case on behalf of San Diego County. Before DuMont could begin making his argument, Judge Consuelo Callahan cut in, asking him, “Where were you when we argued this case before?”
Judge N. Randy Smith repeatedly asked whether the ability for Californians to carry guns openly and without a permit – currently limited to certain unincorporated, rural areas of the state – affects the plaintiffs’ argument that restricting the number of concealed carry permits holders effectively amounts to a complete ban on carrying guns.
Clement said it should be up to states to decide how to regulate both open and concealed guns. When pressed for restrictions on concealed guns that he would accept as constitutional, Clement dodged the question.
“I don’t know if there are particularly obvious ones. … They may have options in how they go about licensing, training. Beyond that, I think we’d have to see what the policy is first,” Clement said.
Both cases were filed in 2009. The 9th Circuit is expected to issue its final decision later this year, and lawyers on both sides have said they will appeal the case to the Supreme Court if they lose.
The court only holds en banc hearings like Tuesday’s for cases it deems to be “exceptionally important.” Lawyers were given just 30 minutes to make their arguments. There is no timetable for when a decision on either case will be published, though both are expected to come at the same time.
“The 9th Circuit moves slowly,” said Mike McLively, an attorney at the San Francisco-based Law Center to Prevent Gun Violence who has followed the cases closely. “I’d be surprised if this was decided before the end of the summer.”
If the 9th Circuit upholds its decision last year in favor of Peruta, the Supreme Court is more likely to hear the case because a clear split would exist between the 9th Circuit and other federal appeals court decisions, he said.
James Chapin, lawyer for San Diego County Sheriff William Gore, said he expects the judges to decide the case based more on the arguments made in the myriad paper filings in the past five years than on anything said in court Tuesday.
“Frankly, 30 minutes of oral argument isn’t going to change anyone’s mind,” Chapin said. “Not with 50 amicus briefs and years of legal arguments.”
Gore was the one who denied a concealed carry permit to Edward Peruta in 2009, setting the case in motion. After the 9th Circuit ruled in favor of Peruta last year, finding that the state’s permitting rules “amounted to a destruction of the Second Amendment,” Gore took a back seat as the constitutionality of the state’s law became the focal point.
“I’ll be an old man before this is settled,” Peruta said. He already holds concealed carry gun permits in Florida and his home state of Connecticut. But neither are recognized in California, where he said he spends part of the year living with his wife in an RV or at his in-laws’ house.
“If I can’t get a pistol permit, I don’t even want to be in Southern California,” Peruta said before today’s hearing. “I have a very good reputation here in Connecticut. I can carry my firearm and do what I do. People know who I am, and they don’t fight me anymore because they know that I fight back and it’s a lot easier to just give me what I’m asking for.”
At the core of both Peruta’s case and the case against Yolo County Sheriff Ed Prieto is a debate over whether the Second Amendment applies outside the home. If it does, the question then becomes whether gun owners have a right to carry concealed guns under the Second Amendment, and whether California law infringes on that right.
Chief Judge Sidney Thomas, who wrote the lone dissenting opinion in court’s 2014 decision in favor of Peruta, found that states have been regulating people’s ability to carry concealed weapons since the early 1800s, and that the issue was never before a question of constitutional rights.
There are more than 16,000 concealed carry applications in California that are in limbo pending a final decision by the court. Many experts believe there will be a surge of applications if the court’s initial decision in the Peruta case is upheld.