Since the landmark 2008 Supreme Court decision in District of Columbia v. Heller, the SCOTUS has declined to hear any significant firearm cases. That must change with Peruta v. County of San Diego, a 7-4 decision handed down on June 9 by the Ninth Circuit Court of Appeals that upheld a concealed carry ban. California, which has also effectively banned open carry, has essentially made it illegal for anyone to carry a firearm outside his home. Californians now have a legal right to self-defense only within the confines of their residence; if they ever venture out, they would do well to hang whistles around their necks.
In Heller, the late Associate Justice Antonin Scalia wrote:
“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Scalia also wrote:
“[S]ince this case represents this court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field,” and “Like most rights, the right secured by the Second Amendment is not unlimited.”
An argument can be made that Scalia, who held the opinion that the Second Amendment could stand with more interpretation that he, an originalist who was not at the time willing to offer, bears some blame for lower court opinions that uphold bans and restrictions on firearms. If Judge William A. Fletcher’s opinion in Peruta is not overturned, then Californians no longer enjoy Second Amendment protections, and thus their Fourteenth Amendment rights are being violated as well.
Fletcher is taking advantage of the Second Amendment’s history of ambiguity, done no favors by Scalia, to interpret it in a way that denies Californians their right to bear arms. Writing for the majority in Peruta, he stated:
“The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment. Therefore, because the Second Amendment does not protect in any degree the right to carry concealed firearms in public, an prohibition or restriction a state may choose to impose on concealed carry – including a requirement of ‘good cause,’ however defined – is necessarily allowed by the Amendment. The en banc court stated that there may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public, but the Supreme Court has not answered that question.”
Yet, Scalia’s opinion in the Heller decision begins with:
“1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home… The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms… The prefatory clause comports with the Court’s interpretation of the operative clause. The ‘militia’ comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved…”
Fletcher twists himself into a pretzel when he uses historical precedents as evidence to support the firearm ban. Because Scalia described the Second Amendment as having a foundation in part as a “right inherited from our English ancestors,” Fletcher makes countless references in his opinion to several bans and regulations of firearms various English kings and queens had burdened their subjects with. This is the sort of irony that would cause a Level Five Hipster to stroke his beard and mouth “wow” in admiration. It shouldn’t matter one bit what sort of restrictions on firearms English monarchs had foisted on the populace since we fought a bloody war for independence from the capricious laws of those very tyrants, and the Battles of Lexington and Concord were fought to prevent a regiment of British soldiers from confiscating a cache of firearms and other supplies from Massachusetts Patriots.
Gun rights activists point to the text of the Second Amendment, particularly the phrase “well regulated Militia” as proof the Founders did not intend for firearms to be in the hands of anyone not in law enforcement or in the armed services. They, of course, are wrong, and it is another example of irony that Fletcher is willing to incorporate legal precedents hundreds of years old in a country whose laws we are not bound to but refuses to interpret the Amendment as it was written. “Keep” “bear” and “well regulated Militia” are indeed archaic terms, and unfortunately only Clarence Thomas remains on the bench as a staunch originalist who would interpret the language according to the definitions of the words at the time the Founders committed them to parchment.
If the point of the Second Amendment was to ensure government cannot confiscate privately-owned firearms required by citizens for purposes of self-defense and in order to form militias for the common defense of the nation, then the right to bear arms in public, regardless if they are concealed or visible to the eye, is implied. Militias form and fight in public, not in the privacy of one’s home.
It is vitally important that the plaintiffs in Peruta appeal their case to SCOTUS, but again, the specter of Scalia looms large over that possibility, as SCOTUS does not bother to hear Second Amendment cases if they can avoid it. Four votes from the justices are required to hear this case, and if they do not, Peruta stands, and Scalia can no longer cast his.
The Ninth’s opinion is that the Second Amendment does not provide for a member of the “general public” to carry a concealed weapon in public without a license, which is granted when a California resident can show “good cause” to do so, as in if he has been threatened with bodily harm or he is in a profession where there is potential harm to his person or property. Fletcher is half right, that the Second Amendment doesn’t specifically say a citizen may carry a concealed weapon… but it does say you have a right to keep (possess in private quarters) and bear (carry in public) arms, so the question of concealment is a moot point. It’s sort of like asserting somebody has a right to eat fruit, but they don’t have a right to eat apples. To borrow from Scalia, Fletcher’s opinion is “pure applesauce.”
This post was written by Dillon Eliassen.
The views expressed here belong to the author and do not necessarily reflect our views and opinions.
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