The Second Amendment's Defining Moment

In March 2008 I chatted with a silver-haired law school professor under the marble pillars of the U.S. Supreme Court building. He was very excited. The court was to about hear Heller v. D.C. The case would decide whether the Second Amendment to the U.S. Constitution protects an individual right to own and carry guns. He had 20 law students with him. He said anxiously, When I put in the paperwork to get seats months ago I didnt know wed get to see one of the last unresolved constitutional questions debated. He said this while looking at a line of people hoping to get seats that went down the block, around a corner and out of sight.

Hours later a mainstream reporter next to me in the press section gasped, Oh no, when Justice Anthony Kennedy hinted that he believed the Second Amendment to be an individual right while asking the governments attorney a question.Months later, when the high court ruled 5-4 that the Second Amendment protects an individual right from government infringement, the media was paying attention. Many, however, are missing whats happening now. The Second Amendment is having its defining moment in history. The decisions now percolating up to the Supreme Court are deciding what guns the Second Amendment covers, when requirements become infringements and more.

Gun-rights and gun-control groups understand that these court decisions illustrate how much elections matter, as the federal judges making these decisions are nominated by the president and voted on by the senate. However, two recent federal court decisions from judges appointed by former president Bill Clinton show how difficult these decisions can be to handicap.

In one just-decided case, California Senior U.S. District Court Judge Anthony W. Ishii found that 10-day waiting periods of Penal Code violate the Second Amendment as applied to people who fall into certain classifications. He found this arbitrary wait time burdens the Second Amendment rights of the plaintiffs. (The decision can be read here.) This court decision orders the California Department of Justice to allow the unobstructed release of guns to those who pass a background check and possess a California license to carry a handgun, or who hold a Department of Justice-issued Certificate of Eligibility and already possess at least one firearm known to the state. Basically, it says if someone already legally has a gun in California the state cant make that person wait 10 days for a second gun just because it wants to. If that sounds like common sense to you, youre right, but common sense isnt a given in the courts.

Brandon Combs, a plaintiff in the case who is also director of the executive director of the Calguns Foundation, said the decision clears the way for them to challenge other irrational and unconstitutional gun-control laws. We look forward to doing just that.

United States Supreme Court building. (Photo credit: Wikipedia)

A flurry of such challenges began right after Heller, led to McDonald v. Chicago (2010) and are still ongoing. In an important example, in February 2014 the Ninth Circuit Court of Appeals confirmed that the Second Amendment protects an individual right to carry firearms for self-defense in public. The decision came in Peruta v. San Diego County. The majority opinion in Peruta said, We are called upon to decide whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.

The California Rifle and Pistol Association Foundation brought the case on behalf of five individuals who were denied the right to carry a handgun by the San Diego sheriff. According to California law, a person applying for their Second Amendment right to carry a concealed handgun must: (1) be a resident of their respective city or county; (2) be of good moral character; (3) have good cause for such a license; and (4) pass a firearms training course. Many rural California counties accept self-defense as good cause for a person to get a license to carry a handgun, but some urban sheriffs and chiefs of police disagreed. In those jurisdictions the few who attain permits had to beg, plead, and show imminent danger to their lives before they could exercise their right to bear arms.

The Ninth Circuit decided 2 to 1 that the restrictive good cause policy of the San Diego County Sheriffs Department was unconstitutional. The majority opinion accepted that the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Rather, it is a right subject to traditional restrictions, which themselvesand this is a critical pointtend to show the scope of the right.

The majority decision in Peruta said, Our reading of the Second Amendment is akin to the Seventh Circuits interpretation [in Shepard v. Madigan] and at odds with the approach of the Second, Third, and Fourth Circuits. We are unpersuaded by the decisions of the Second, Third, and Fourth Circuits for several reasons. First, contrary to the approach in Heller, all three courts declined to undertake a complete historical analysis of the scope and nature of the Second Amendment right outside the home. As a result, they misapprehend both the nature of the Second Amendment right and the implications of state laws that prevent the vast majority of responsible, law-abiding citizens from carrying in public for lawful self-defense purposes.

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The Second Amendment's Defining Moment