Judge Diarmuid O’Scannlain, U.S. Court of Appeals for the Ninth Circuit (Jason Doiy / The Recorder)
SAN FRANCISCO — In a decision sure to ignite a political firestorm, the Ninth Circuit ruled Thursday that the Second Amendment guarantees individuals the right to bear arms not only in the home, but also in public.
A divided panel led by Judge Diarmuid O’Scannlain ruled that, under the logic of the U.S. Supreme Court’s landmark 2008 decision in District of Columbia v. Heller, California must allow law-abiding citizens to carry weapons, and that the right is not subject to balancing against the state’s interest in public safety.
“To be clear, we are not holding that the Second Amendment requires the states to permit concealed carry,” O’Scannlain wrote in Peruta v. County of San Diego. “But the Second Amendment does require that the states permit some form of carry for self-defense outside the home.”
Further review from the Ninth Circuit seems likely. O’Scannlain acknowledged that several other circuits have ruled otherwise, and dissenting Judge Sidney Thomas accused O’Scannlain of manufacturing a new right without even giving California a chance to contest it. Within hours, the Brady Center to Prevent Gun Violence put out a press release calling Peruta “an aberrant, split decision that concocts a dangerous right.”
But O’Scannlain is one of the most influential conservative voices on the U.S. Court of Appeals for the Ninth Circuit, and his opinion appears tailor-made for a U.S. Supreme Court that emphasizes history-based interpretation of the Constitution.
O’Scannlain undertook a review of firearms laws and jurisprudence ranging from 14th-century England to Civil War Reconstruction. Read in the context of Heller, those precedents inform a Second Amendment right “to keep and bear arms” that extends beyond the home, he argued.
“The majority of 19th century courts agreed that the Second Amendment right extended outside the home and included, at minimum, the right to carry an operable weapon in public for the purpose of lawful self-defense,” wrote O’Scannlain, who was joined by Judge Consuelo Callahan.
California law generally forbids the open display of weapons in public, while delegating the regulation of concealed carrying to cities and counties. In Peruta, gun owners sued the San Diego County sheriff, who issues permits only on a showing of some special need for protection, such as the obtaining of a temporary restraining order.
The Second, Third, Fourth and Tenth circuits have ruled either that the Second Amendment does not extend beyond the home, or that courts must apply a balancing test that takes into account public safety. O’Scannlain faulted those courts for failing to consider historical context, and argued that a Seventh Circuit decision by Judge Richard Posner supports his view.
In dissent Thomas said the Supreme Court had emphasized in Heller that “the right secured by the Second Amendment is not unlimited” and that the need for self-defense is “most acute in the home.”
“Simply put, concealed carry presents an entirely different Second Amendment issue from possessing handguns in the home for self-defense,” Thomas wrote. “As the Supreme Court recognized in Heller, courts and state legislatures have long recognized the danger to public safety of allowing unregulated, concealed weapons to be carried in public.”
O’Scannlain replied by saying that though the right is “most acute” in the home, the Supreme Court implied “that the right exists outside the home, though the need is not always as ‘acute.’”
Paul Clement of Bancroft argued the appeal for the plaintiff gun owners and the California Rifle and Pistol Association Foundation. James Chapin, senior deputy attorney for San Diego County, argued for the county and Sheriff William Gore.
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