In a recent 9th Circuit case, the Circuit Court struck down parts of California’s restrictive laws governing the carry of concealed guns. This case runs counter to several other Circuits, and we can expect that the US Supreme Court will eventually pick a case to weigh in on. Until that time, Peruta v. County of San Diego is currently the most detailed analysis of the 2nd Amendment and the historical right to carry firearms.
The Court basically takes the view of an old Georgia case where the Court said that the manner of carry could be regulated, but not strictly forbidden. Applying that to the case at hand, the Circuit Court determined that Californians have no right to carry openly, and concealed carry is only possible with a license. The crux of the challenge was that a license may issue at the discretion of the Sheriff, and the Sheriff was denying applications based on a general right of self defense.
Assuming, from the earlier US Supreme Court case of Heller, that the 2nd Amendment protects a personal right of self defense, the Circuit Court determined that Californians must be able to exercise that right in some manner outside of the home. Peruta did not challenge the ban on open carry, so the Circuit Court looked to the regulations on concealed carry and determined such restrictions were too restrictive to pass constitutional muster.
The Circuit Court then struck down the County’s restrictive interpretation that prevented applicants from receiving a concealed carry licenses merely for self defense purposes. In short, the Circuit Court ordered California to become a shall issue state.
In the dissent, Judge Thomas analyzes the cases proffered by the majority and concludes that early courts, as a rule, believed that legislatures could regulate, or forbid, the carrying of concealed firearms. However, to get here Judge Thomas had to do two things: A) he admits that open carry was generally, if not always, allowed without any regulations, and B) he failed to examine the state version of the 2nd Amendment in question in each case.
Judge Thomas’ argument would support open carry without regulation, and this is far from a liberal view. However, even to get there, he had to ignore that many states, in their 2nd Amendments language, specifically allowed the legislature to regulate concealed carry. While these cases reveal the views on some gun rights, they are not definitive on concealed carry because the US constitution has no such exception.
Though I do not have a crystal ball, I suspect that some of the next cases we see will regard regulations on open carry. States such as South Carolina and California, both who completely forbid the open carrying of handguns, will be prime targets for Constitutional challenges.
Ultimately, the Supreme Court will have to wade into the fray and weigh in with its opinion. Until then, this case will serve as an excellent example of a well argued, and well reasoned opinion on the issue of the right to bear arms.