Does the Second Amendment Protect Concealed Carry?

Author: Andrew Fernandez, Associate Member, University of Cincinnati Law Review

The Second Amendment of the United States Constitution protects an individual’s right to keep and bear arms.[1] The Supreme Court in Heller and McDonald held an individual maintains a right to possess a firearm and the right to possess a firearm is incorporated against the states through the Fourteenth Amendment.[2] This right, like many of the fundamental liberties Americans enjoy, has limitations.[3] The recent en banc decision by the Ninth Circuit in Peruta v. County of San Diego, provides an example of a federal court struggling to determine the constitutional limits on an individual’s right to keep and bear arms. The plaintiffs in Peruta asked the Ninth Circuit to determine whether San Diego and Yolo counties’ good cause requirement on their application for concealed carry violated the Second Amendment.[4] The Ninth Circuit determined the Second Amendment did not create a right to carry a concealed firearm and the counties’ restrictions did not violate the Second Amendment.[5] This decision was decried by the dissent in Peruta as inconsistent with the thinking of the Founding Fathers. Yet, there is overwhelming historical evidence that throughout American history, states have restricted the ability of individual’s to carry a concealed gun. The majority opinion in Peruta better applied the principles of originalism and the thinking of the Founder Fathers with its historical analysis of English common law and decisions of state courts throughout American history.

What is Originalism?

Originalism is a constitutional law theory that attempts to provide a framework to understand the Constitution.[6] Originalism assumes the original meaning of the Constitution is fixed and uses historical sources to aid interpretation of the Constitution.[7] This theory provides guidance for analyzing vague passages of the Constitution including what kind of evidence to present and what arguments should be considered.[8] While the theory is generally associated with the conservative movement, the theory itself does not always lead to conservative policy outcomes.[9]

Second Amendment Jurisprudence

The recent Supreme Court decisions of Heller and McDonald are the two seminal cases of modern Second Amendment jurisprudence. In Heller, a police officer applied to have a handgun at home for self-defense but was denied by the District of Columbia.[10] The District of Columbia enforced a law that made possessing an unregistered handgun a crime, but permitted the police chief discretion to administer one-year hand gun possession licenses to private citizens.[11] The Supreme Court ruled the Second Amendment provided for an individual right to own a gun and to utilize the gun for lawful purposes such as self-defense in the home.[12] The Court held the handgun ban amounted to a total ban on a weapon often used by Americans for self-defense and was therefore unconstitutional.[13]

Two years after Heller, in McDonald, plaintiffs sued the City of Chicago and the village of Oak Park for laws that essentially banned handgun possession for most citizens.[14] The plaintiffs sought a declaration that the law violated the Second Amendment.[15] The district court refused stating, among other reasons, Heller did not determine whether the Second Amendment was incorporated against the states.[16] The Seventh Circuit affirmed this decision.[17] The Supreme Court overruled this decision deciding the Fourteenth Amendment incorporated the Second Amendment against the states.[18]

Facts of Peruta v. County of San Diego

California law prohibits most citizens from carrying concealed firearms, loaded or unloaded, in public.[19] State law further prevents its citizens from open carrying loaded weapons and unloaded handguns in public. [20] “Under California law, a member of the general public may not carry a concealed weapon in pubic unless he or she has been issued a license.” [21] To obtain a concealed carry license in California, the applicant must possess good moral character, show “good cause” to obtain the license, maintain residence in the county or be employed in the county, and complete a training course.[22] The same law allows county sheriffs and municipal police chiefs to define good cause in the respective counties or cities.[23] San Diego County defined good cause “to be a set of circumstances that distinguish the applicant from the main stream and causes him or her to be placed in harm’s way”.[24] The plaintiffs, Edward Peruta and Adam Richards, both applied for concealed carry licenses in their respective counties but San Diego and Yolo counties denied their applications because they lacked “good cause.”[25] These two men, along with five other residents of San Diego and Yolo Counties and gun rights organizations, challenged the good cause requirement as interpreted and applied in the counties as violating the Second Amendment.[26] The Ninth Circuit held that despite the fact the plaintiffs had only challenged the concealed carry policy, the entirety of California laws concerning carrying firearms in public must be analyzed because open and concealed carry laws cannot be analyzed in isolation.[27] The court ruled the Second Amendment requires a form of carry for self-defense outside the home.[28] Because California law only permits concealed carry upon proving “good cause” and because there are restrictions on open carry, the counties’ definition of good cause violated the Constitution.[29] The Ninth Circuit agreed to rehear the case in banc.[30]

Majority Opinion in Peruta

The Ninth Circuit divided the plaintiff’s arguments into three main components. First, the ability of a member of the general public to carry firearms in public in some manner is protected by the Second Amendment.[31] Second, California’s combined restrictions on open and concealed carry violated the Second Amendment because it denied citizens the opportunity to defend themselves in public.[32] Finally, if San Diego and Yolo Counties’ interpretation of good cause was removed there would be adequate opportunity to carry firearms in public.[33] The Court chose only to answer whether the Second Amendment addressed their right to concealed carry because the plaintiffs only challenged laws that affected a right to conceal carry. [34] The Ninth Circuit stated the Supreme Court used the historical analysis as the definitive factor in interpreting the Second Amendment.[35] The Ninth Circuit proceeded to analyze acts of English Parliament and colonial legislation to demonstrate that before American independence concealed weapons were regulated by the English governments and Colonial legislatures.[36] The Ninth Circuit also cited state Supreme Court decisions both before and after the passing of the Fourteenth Amendment to illustrate there was no fundamental right to conceal carry. The circuit court also cited Baldwin, a Supreme Court decision in 1897, for the proposition the Bill of Rights were created to protect certain liberties subject to well recognized exceptions.[37] Concealed carry was recognized as one of those exceptions in Baldwin.[38] Additionally, the Supreme Court in Heller stated the majority of courts in nineteenth century America ruled restrictions on concealed weapons were constitutional.[39] The court in Peruta used this historical analysis to declare there is no Second Amendment right to concealed carry. [40]

Dissenting Opinion

There are three dissenting opinions in Peruta, but the opinion written by Justice Callahan is the most extensive and encompasses the arguments of the other two opinions. The dissent argued Heller and McDonald protected a right to keep and bear arms that extends beyond the home even if not explicitly stated in those cases.[41] The dissent argued many of the cited cases assumed a right to open carry or that these cases relied on a pre-Heller interpretation of the Second Amendment.[42] The dissent further maintained Heller held concealed weapon restrictions must be analyzed with open carry laws of the state to ensure the individual right for self-defense in public.[43] The dissent also refers to two state supreme court cases, Nunn and Andrews, cited in Heller to support its position the Second Amendment protects a general right to public defense.[44]

Why the Majority Opinion is the Better Example of Originalism

Originalism is the best way to interpret whether the Second Amendment protects a right to concealed carry because federal judges following the approach of originalism are less likely to dilute the separation of powers principles our nation was founded upon. Originalism focuses the judges on historical evidence to determine the original intention of the Second Amendment. Some may argue what the founders intended has little relevance in our modern society especially since weapons have fundamentally changed in the last two centuries. However, the Founders provided constitutional amendments as the outlet for evolution of constitutional law. Courts deciding laws without the benefit of looking at what the Founders intended are likely to interpret constitutional law through the prism of their own beliefs. This gives the Federal Courts tremendous power to create law and increases the power of the federal judges at the expense of the other branches. Looking at the original intention of the law better allows the evolution of Second Amendment jurisprudence to occur through constitutional amendments and state legislatures as opposed to legislating from the federal judiciary.

Many would assume the dissent opinion is a better example of originalism then the majority opinion in Peruta because the dissent’s result is a conservative policy outcome. However, the majority opinion’s historical analysis better applies the theory of originalism. The majority opinion marshalled extensive historical evidence from both English common law and American law to support its conclusion that the Second Amendment does not protect a right to concealed carry. This analysis is consistent with originalism’s tenet that the meaning of the Constitution is fixed and informed by historical analysis. The Founders were comfortable with concealed firearms being regulated despite the importance of firearms as a constitutional right.

In contrast, the dissent’s arguments were less focused on historical analysis and instead stretched statements from Heller into firm constitutional jurisprudence. For example, the dissent argued many of the historical cases cited by the majority opinion do not apply because the cases were interpreted before the Heller decision. This argument is an affront to originalism. In Heller and McDonald, the Court used extensive historical analysis to determine the Second Amendment protected a right to self-defense. The Court used cases before Heller to determine whether the Second Amendment has protected an individual right to bear arms. The same history should be used to determine if the Founder’s believed concealed weapons are protected by the Second Amendment.  The historical analysis used by the Court in Heller to declare that the Second Amendment protected the right to self-defense should also hold California’s concealed carry regulations as unconstitutional.

The dissent tried to get away from this conclusion by stating the Second Amendment protects a general right to self-defense outside the home. The dissent argued that concealed carry restrictions are only constitutional if there is another outlet for citizens to carry firearms in self-defense.  However, despite the best efforts of the dissent to stretch the holdings of Heller, the Supreme Court has not provided guidance on what restrictions on firearms in public violate the Second Amendment. The dissent does not show how California’s concealed carry regulations are unconstitutional because it cannot marshal the historical evidence to do so. Instead, it must stretch points made by Heller in order to accomplish its goals. Thus, the dissent’s argument is not consistent with the thinking of the Founding Fathers.

Conclusion

The majority opinion is the stronger originalist opinion. It is grounded in historical analysis from centuries of Anglo-American law that shows the individual right to own a gun does not protect a right to conceal carry. While this ruling does not lead to a “conservative” outcome it is very much an originalist opinion. Peruta is a prime example of how originalism does not always lead to strictly conservative opinions but instead follows the understanding of the Founding Fathers.  Following this understanding of the Founding Fathers is the correct interpretation of this Second Amendment issue because ruling otherwise would impose the views of the individual federal judges at the expense of state legislatures and the constitutional amendment process.

[1] District of Columbia v. Heller, 554 U.S. 570, 595 (2008).

[2] Peruta v. San Diego, 824 F.3d 919, 946-947 (9th Cir. Cal. 2015).

[3] See id at 924.

[4] Id.

[5] See id.

[6] Keith Whittington, Is Originalism Too Conservative?, 34 Harv. J.L. & Pub. Pol’y 29, 31 (2011).

[7] See id at 31-32.

[8] Id.

[9] See id at 34.

[10] Heller, 554 U.S. at 2785.

[11] Id.

[12] Id. at 2786.

[13] Id. at 2787.

[14] McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010).

[15] Id.

[16] Id.

[17] Id.

[18] See id.

[19] Peruta 824 F. 3d at 925.

[20] Id. at 925.

[21] Id. at 924.

[22] Peruta, 824 F. 3d at 926.

[23] Id.

[24] Id.

[25] Id at 924.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id. at 925.

[31] Id. at 927

[32] Id. at 927.

[33] Id.

[34] Id.

[35] Id. at 928.

[36] Id. at 929-939.

[37] Id. at 938 (citing Robertson v. Baldwin) 165 U.S. 275 (1897)).

[38] Id.

[39] Id. at 936.

[40] See id. at 939.

[41] Id. at 946.

[42] Id.

[43] Id.

[44] Id. at 948. In Andrews, the Tennessee Supreme Court held unconstitutional a statute that forbade open carrying a pistol even though the statute did not ban the carrying of long guns. The Tennessee Supreme Court equated the Tennessee constitutional provision under which the statue was overturned with the Second Amendment. Id. In Nunn, The Georgia Supreme Court overturned restrictions on carrying pistols openly even though the court had upheld restrictions on concealed carry. Id.

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