Edward Peruta v. County of San Diego
824 F.3d 919
| 9th Cir. | 2016Background
- Plaintiffs (San Diego and Yolo County residents and gun-rights organizations) applied for concealed-carry licenses; their applications were denied under county "good cause" policies that require a particularized need for self-defense.
- California law generally prohibits concealed carry but authorizes county sheriffs to issue carry licenses upon showing good moral character, training, residency, and "good cause." Sheriffs must publish licensing policies.
- District courts granted summary judgment to defendants; a three-judge Ninth Circuit panel reversed in Peruta, but the Ninth Circuit granted rehearing en banc.
- En banc Ninth Circuit majority holds the Second Amendment does not protect a right of the general public to carry concealed firearms in public and affirms district courts.
- The State of California was permitted to intervene after a sheriff declined to seek rehearing en banc; the court analyzed intervention under Fed. R. Civ. P. 24(a)(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Second Amendment protects a public right to carry concealed firearms | Peruta/Richards: the Second Amendment secures at least some public-carry right for self-defense; county good-cause rules effectively ban that right in context of California law | Counties/State: historical and doctrinal precedent permits prohibitions or regulation of concealed carry; good-cause licensing is lawful | Held: No Second Amendment protection extends to carrying concealed firearms in public by the general public; restrictions (including good-cause requirements) are permissible under the Amendment |
| Whether plaintiffs’ challenge must be assessed in the broader context of California's overall carry scheme (open + concealed carry) | Plaintiffs: California's combined restrictions on open and concealed carry leave no practical means to bear arms in public for self-defense | Counties/State: plaintiffs challenged only concealed-carry policies; historical law distinguishes concealed carry as regulable | Held: Court did not decide whether any public-carry right exists generally (open carry left open); but even assuming other questions, concealed carry itself has never been protected historically and thus need not be protected now |
| Standard and level of review for challenged regulations | Plaintiffs (dissent): if the law burdens a protected right, heightened (intermediate or strict) scrutiny should apply and counties have not met it | Defendants/ concurrence: even if Second Amendment applies, intermediate scrutiny would be satisfied because good-cause rules reasonably promote public safety | Held: Majority avoided applying scrutiny by deciding the historical scope question first—no Second Amendment right to concealed carry—so heightened scrutiny was unnecessary; concurrence agreed intermediate scrutiny would uphold the laws if applied |
| Timeliness and right to intervene by the State of California | California: has a significant protectable interest and was timely to intervene once county sheriff declined further defense; no party adequately represented state interests | Plaintiffs: did not oppose intervention | Held: California may intervene as of right under Rule 24(a)(2); intervention granted |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (held the Second Amendment protects an individual right to possess firearms for self-defense in the home; noted that prohibitions on carrying concealed weapons have historically been upheld)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (held Second Amendment incorporated against the states via the Fourteenth Amendment)
- Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014) (panel opinion addressing county concealed-carry policy; later vacated for en banc review)
- Robertson v. Baldwin, 165 U.S. 275 (1897) (stated that laws prohibiting carrying concealed weapons do not infringe the Second Amendment)
- Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) (upheld Maryland "good and substantial reason" requirement for handgun carry under a framework assuming Second Amendment applies)
- Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) (upheld New Jersey "justifiable need" restriction on public carry under an assumed-application of the Second Amendment)
- Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) (upheld New York "proper cause" requirement for concealed-carry licensing under intermediate scrutiny analysis)