Gun owners received disappointing news on Monday when the U.S. Supreme Court declined to review a decision by the U.S. Court of Appeals for the Ninth Circuit that effectively let stand California’s “may-issue” permitting regime. The upshot of this decision is that law-abiding Californians in many areas of the state will be effectively denied the right to “bear” arms in public for self-defense.
But there was a silver lining to this development as Justice Neil M. Gorsuch – President Trump’s pick to replace the late, great Antonin Scalia – came out strongly in favor of the Second Amendment by joining a dissent from the court’s decision penned by Second Amendment stalwart Justice Clarence Thomas. Gorsuch’s participation in the dissent confirmed that he, unlike so many of his colleagues in the federal judiciary, is indeed prepared to take the Second Amendment seriously.
The underlying case was Peruta v. San Diego. The plaintiffs had complained of being arbitrarily denied concealed carry permits, the only way for law-abiding persons in California to exercise the right to carry loaded, operable firearms in public for self-defense. Each plaintiff met all the qualifications for a permit but one: they could not show an extraordinary need for self-protection that distinguished them from the general population, as required by licensing officials in their counties of residence.
The case therefore presented the court with an opportunity to clearly state whether or not the Second Amendment extends its protections beyond the home. Indeed, the three-judge panel that originally heard the case in the Ninth Circuit recognized that its defining issue was “whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.”
The panel answered that question affirmatively, stating: “the Second Amendment does require that the states permit some form of carry for self-defense outside the home.” The panel also noted that it was California’s own decision to make concealed carry permits the only lawful path to do so. It therefore held the plaintiffs could prevail with “a narrow challenge to the San Diego County regulations on concealed carry, rather than a broad challenge to the state-wide ban on open carry ….”