The Peruta Case: A Massive Gun Rights Victory in CA

Until quite recently, it was lawful to openly carry unloaded firearms in California cities. An unloaded firearm is not particularly useful for self-defense, but at least if the legislature had left this alone, they could have pretended that there was still a right to bear arms. But they closed this loophole. The Peruta decision points out that there was no longer a legal method for a law-abiding adult to carry a gun for self-defense, and that even the unloaded open carry was not particularly useful for that purpose.

The Peruta decision relies heavily on D.C. v. Heller (2008), McDonald v. Chicago (2010), and Moore v. Madigan (7th Cir., 2012) to hold that the right to bear arms means the right to carry them for self-defense. (I am also pleased to report that the Peruta decision cites two of my law review articles.) If you can’t carry a firearm openly and loaded, and you need a permit that you can’t get to carry concealed, then your right to bear arms under the Second Amendment has been denied.

What does this mean? If you live in California, I would not rush out to apply for a carry permit quite yet. The state of Illinois, when it lost a similar case before the 7th Circuit, had the good sense not to appeal. Instead, they passed a shall-issue concealed weapon permit law. It isn’t perfect, but shortly, law-abiding Illinoisans will be carrying concealed, even in Chicago.

California, I suspect, is going to fight this case.

They will doubtless seek an en banc hearing by the 9th Circuit Court of Appeals. There is a good chance that this case, along with similar cases in the 2nd, 3rd, and 4th Circuit Courts of Appeals (for New York, New Jersey, and Maryland), will be heard by the U.S. Supreme Court, because we now have a “circuit split.” Two circuits have found that the Second Amendment protects a right to shall-issue concealed carry permits; three circuits have found otherwise.

Taking this case to the Supreme Court now is a good idea. The five justices who ruled for gun rights in Heller and McDonald are still there. However, I can say with some certainty that any future justices appointed by President Obama or his near-certain successor Hilary Clinton will not be so friendly.

UPDATE: The San Diego Sheriff’s Department has decided not to the appeal the ruling. The good news is that California sheriffs are going to have to move towards shall-issue, and some are already doing so. It will also force Hawaii to go that same direction. The bad news is that without that appeal, we may not get the U.S. Supreme Court to impose that standard on the Northeastern states.