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June 13, 2016

Case Analysis: Second Amendment Does Not Protect Concealed Carry

by WSBA
Man drawing a handgun from under his jacket.
The 9th Circuit Court of Appeals ruled last week that the Second Amendment does not include the right to concealed carry.

Man drawing a handgun from under his jacket.The 9th Circuit Court of Appeals ruled June 9, 2016, in Peruta v. County of San Diego that the Second Amendment does not include the right to concealed carry. The court heard the case en banc and decided 7–4.

Under California law, no one may carry a concealed weapon without first receiving a license to do so. To obtain a permit for concealed carry, the applicant must show “good cause” to carry concealed. California law allows county sheriffs to establish the meaning of “good cause.” The sheriffs of San Diego and Yolo counties required a particularized reason why an applicant needs to carry concealed for self-defense.

Residents of those two counties sued, arguing that the need for a particularized reason violates their Second Amendment right to bear arms. The district court granted summary judgment, ruling that the good cause requirements did not violate the Second Amendment. The 9th Circuit initially reversed in a 2–1 split, holding that California’s restrictions on concealed carry violated the Second Amendment, but then granted rehearing en banc.

On rehearing, the court applied the historical inquiry set out by the U.S. Supreme Court in Heller and McDonald. Reaching back to 1299, the court embarked on a detailed rendition of firearm regulations as they existed in England before the Second Amendment’s ratification and concluded that concealed carry of a weapon in public has never been lawful. Likewise, the court conducted an analysis of concealed carry laws pre-Constitution and state court decisions post-Constitution to conclude that state courts have been upholding concealed carry restrictions since the inception of the Union. Most importantly, the court cited the Supreme Court’s 1897 opinion in Robertson v. Baldwin. There, the high court stated, “The right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.” Given the volume and consistency of historical data on the question of concealed carry, the court held that the “Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public.”

It’s important to note that the 9th Circuit held only that the Second Amendment does not protect concealed carry. The court expressly admitted that the question of whether the Second Amendment may protect a person’s ability to open carry in public remains unresolved.

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