In a case that will almost certainly go before the U.S. Supreme Court, the Ninth Circuit Court of Appeals has ruled that Americans don’t have the right to carry a concealed handgun.
The case shows just how high the stakes are in this presidential election.
“The Ninth Circuit Court of Appeals ruled Thursday that the Second Amendment does not protect a right for ordinary citizens to carry concealed firearms in public, a major decision on the constitutional boundaries of gun rights that could elicit review by the U.S. Supreme Court,” The Atlantic reported. “In his 52-page majority opinion in Peruta v. County of San Diego, Judge William Fletcher laid out an exhaustive history of British and American laws prohibiting concealed weapons, tracing a continuous thread from a decree by Edward I to his sheriffs in 1299 to a series of state supreme court decisions in the 19th century.”
Fletcher concluded, “Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment - whatever the scope of that protection may be - simply does not extend to the carrying of concealed firearms in public by members of the general public.”
The issue in question is a California law that said citizens who wish to carry a handgun must “show good cause” - for example, if they regularly carry large amounts of money for their business.
But the bigger issue is the Second Amendment. Four judges in the 11-judge panel assembled by the Ninth Circuit said as much in a dissent.
“In the context of present-day California law, the Defendant counties’ limited licensing of the right to carry concealed firearms is tantamount to a total ban on the right of an ordinary citizen to carry a firearm in public for self-defense,” Judge Consuelo Callahan wrote. “Thus, Plaintiffs’ Second Amendment rights have been violated. While states may choose between different manners of bearing arms for self-defense, the right must be accommodated.”
They see the Ninth’s ruling as a threat to the U.S. Supreme Court’s Heller decision, which struck down a D.C. law as being the equivalent of an outright ban, and noted the Second Amendment “protects an individual right to keep and bear arms.”
Here’s where it gets scary. Heller was a 5-4 decision. The dissenters in Heller do not see any such right.
“Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution,” the justices wrote.
With the death of Justice Antonin Scalia, the court is now at 4-4 on the issue. Whoever replaces Scalia will be the deciding vote. The next president will likely make that choice.
Now, do not read this as an endorsement of Donald Trump, who has promised to appoint a conservative justice.
Trump breaks his promises easily and with an arrogant frequency.
Yet if he sticks with his list of candidates - which includes Texas Supreme Court Justice Don Willett, an excellent choice - then there’s a good chance Scalia’s replacement will hold the Constitution in the same high regard.