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The Peruta Case: A Massive Gun Rights Victory in CA

Gun rights advocates just received a glorious St. Valentine’s Day gift: Peruta v. County of San Diego (9th Cir. 2014).

California is one of a small number of American states where issuance of a concealed weapon permit is entirely at the discretion of the sheriff or police chief. In some counties, permits are available to almost any resident with a clean criminal record and no mental illness history. Unfortunately, in many of the counties that have substantial violent crime problems (Los Angeles, San Diego, the entire Bay Area) and thus where carrying a gun is a darn good idea, sheriffs and police chiefs abuse their discretion on issuing permits in outrageous ways. The Peruta suit was an attempt at fixing this problem -- and the resulting decision looks like it will indeed fix it.

The abuse of the issuance process in California varies quite a bit from county to county. In some counties, there is a very strong overlap between those with concealed carry permits, and those who made big contributions to the last sheriff’s election campaign. This is one of the reasons that news organizations in California have done a lot of suing over the years to keep concealed weapon permit information as public records.

When I lived in Sonoma County in the 1980s, it was not necessary to be a big contributor to get a permit, but it certainly helped. There was an embarrassing situation that developed where a big contributor to the sheriff’s campaign received a permit even before the background check was complete, and over the strong objections of some of the deputies who had knowledge of the contributor’s character. It turned out the contributor had a felony conviction -- for child molestation. (A friend who was a deputy sheriff was not surprised; he had warned the sheriff that the inside of the contributor’s home was decorated with pictures of naked little boys.) Eventually, the sheriff lost his re-election bid, although not for this reason.

In other counties, permits are not issued unless you can demonstrate that you have a higher than average risk of attack. This usually means that you run a business that involves transporting large quantities of cash or other valuables (such as a jeweler, or a merchant in a cash-rich business), or have been the victim of a serious attack and the attacker is still free.

Self-defense alone was not a sufficient reason; this is what the Peruta decision has overturned.

Until 1967, California allowed open carry of a firearm in cities. That year, the Black Panthers demonstrated the great political acumen for which they were known by walking into the California legislature heavily armed while they were debating a bill to ban open carry. (Yes, the bill was aimed specifically at the Black Panthers.) This caused the bill’s immediate passage over the objections of conservatives, and its signing by Governor Ronald Reagan.

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.