For now, potential Supreme Court gun-rights case is in limbo

On Tuesday, the Supreme Court yet again took no action on a potential landmark gun-rights case from California and the Ninth Circuit. But when it does act, there will surely be attention paid to how an acceptance or denial of the case with affect the Second Amendment's future.

The case of Peruta v. California has been on the Court’s private conference list four times. At least four Justices must agree to accept an appeal, which in this instance is from a group of people from San Diego seeking to carry concealed weapons in public, in opposition to a decision from that county’s sheriff restricting that right.

For now, the Court hasn’t accepted the appeal or rejected the Peruta case outright. The petitioners see a broader Second Amendment issue at stake, and they point to conflicting rulings around the country about the “constitutional right to bear arms outside the home for self-defense in some manner.”

A divided Ninth Circuit Appeals Court, earlier meeting en banc in June 2016, upheld a decision by San Diego’s sheriff that the petitioners had to show “good cause” to carry concealed weapons in public places, citing the state’s gun laws.

That decision, said the Peruta legal team (led by veteran Court litigator Paul Clement), only added to the national debate about the issue. “In reaching that conclusion, the Ninth Circuit added to the sharp division among the lower courts over whether the Second Amendment allows ordinary, law-abiding citizens to be deprived of all means of carrying a handgun for self-defense,” Clement’s team argued in its petition to the Court, filed in January 2017.

The Peruta petitioners find fault with how the state law is defined and implemented. “Rather than defining ‘good cause,’ the State has delegated that task to each sheriff or police chief. Consistent with the concealed-carry regimes that govern in the vast majority of states, many sheriffs have reasonably (and constitutionally) concluded that an individual’s desire to carry a handgun for self-defense in case of confrontation qualifies as ‘good cause.’ And the State treats that policy judgment as a permissible interpretation of ‘good cause,’” they argue.

San Diego requires that concealed-carry applicants “demonstrate the specific situation that places them in danger and submit evidence of current incidents which documents their claim.”  The result of that policy seemingly violates a broad Second Amendment right, the petitioners say. “The net effect of this restrictive interpretation of ‘good cause’ is that the typical law-abiding resident of San Diego County cannot obtain a concealed-carry license,” they conclude.

The state of California doesn’t want the Supreme Court to hear the appeal and it argues that the question actually before the Court is about “a specific right to carry a concealed handgun in public spaces in cities and towns, based only on a general desire for self-defense.”

While agreeing with the Ninth Circuit’s en banc decision, the state also argues that the same question has been presented to the Supreme Court before without success. “This Court has previously denied review in three cases assessing similar state regulations on public carry. There is no reason for a different result here, especially while other courts continue to consider comparable issues. In the continued absence of any conflict, review in this case would be at best premature,” the state argues.

The Peruta case had been considered before three courts before the current appeal.  Initially, a district court said that San Diego’s rationale for its good cause requirement didn’t violate the Second Amendment. A three-judge Ninth Circuit panel overturned that decision in a divided ruling, citing the Supreme Court’s Heller and McDonald decisions as indicating a right to self-defense wasn’t confined to a home.

The 7-4 Ninth Circuit majority en banc decision held that “that there is no Second Amendment right for members of the general public to carry concealed firearms in public.” The dissenting judges pointed to California’s law banning the opening carrying of firearms as an important factor. “The Sheriff’s refusal to issue concealed carry licenses to ordinary, law-abiding citizens was ‘tantamount to [a] complete ban on the Second Amendment right to bear arms outside the home for self-defense,’” they said.

If the Supreme Court takes the Peruta case, it would be one of the biggest cases of the next term, which starts in October.