The U.S. Supreme Court, declining to step back into the contentious arena of gun regulation, refused on Monday to review the constitutionality of California’s restrictions on the concealed and open carry of guns.
The justices’ refusal to take up Peruta v. California came on the heels of the June 14 shooting in Virginia that wounded five, including a congressman, at a baseball practice. The court last took up a major Second Amendment challenge seven years ago.
In 2010 in McDonald v. City of Chicago, a 5-4 court applied the Second Amendment to the states. The McDonald decision followed the justices’ landmark 5-4 decision in 2008—District of Columbia v. Heller—holding that the amendment guarantees an individual right to possess a handgun for self-defense in the home.
The high court has turned away a number of Second Amendment cases, often over the dissenting voices of Justices Clarence Thomas, Samuel Alito Jr. and the late Antonin Scalia. Thomas, in his dissents, has charged that the Second Amendment was becoming a nullity based on its treatment by lower courts. Trial and appellate judges generally have upheld local regulations.
Thomas on Monday, joined by Justice Neil Gorsuch, had voted to hear the challenge to California’s gun laws. Thomas wrote:
For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.
Peruta was filed on behalf of Edward Peruta, four other individuals and the California Rifle and Pistol Association Foundation. The petition was brought on their behalf by former George W. Bush Solicitor General Paul Clement of Kirkland & Ellis.
The challenge asks the justices this question: “Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.”
California regulates open carry and concealed carry of guns in public. Open carry is generally prohibited, with a few exceptions. Anyone applying for a concealed-carry license must show, among other requirements, that “good cause” exists for the license. The state’s counties may decide what constitutes “good cause.”
Peruta, a San Diego resident, was refused a concealed-carry license. He and the other petitioners in the high court, sued San Diego County and the San Diego sheriff, claiming that the concealed-carry policy violated their Second Amendment rights.
The en banc U.S. Court of Appeals for the Ninth Circuit narrowly examined “whether the Second Amendment protects, in any degree, the ability to carry concealed firearms in public.” It did not reach the question whether the right to bear arms existed outside of the home.
In a 7-4 opinion on June 9, 2016, the en banc court said the historical evidence shows that the Second Amendment does not protect concealed carry.
The Peruta petition argued that the San Diego sheriff’s interpretation of “good cause” is so restrictive that the typical law-abiding resident on the county cannot get a concealed-carry license. “And because California law prohibits openly carrying a handgun outside the home, the result is that the typical law-abiding resident cannot bear a handgun for self-defense outside the home at all.”
Clement argued there are “few unresolved constitutional questions of greater legal and practical significance than whether the Second Amendment entitles ordinary law-abiding citizens to bear handguns outside the home for self-defense.” Lower courts, he said, have split three ways, with some recognizing the right outside the home, some rejecting it, and some adopting a hybrid approach.
California had countered that the Ninth Circuit decision was limited to whether the Second Amendment protects a specific right to carry concealed weapons in public and was correct “in light of the long history of restrictions on concealed carry.” It also accuses Peruta of presenting different and broader questions of whether the Second Amendment applies outside the home.
The appellate court decision, the state said, “does not create or deepen any conflict among the lower courts, or impair the flexibility of states in deciding how to accommodate any public-carry right.”