by Charles C.W. Cooke - Friday, July 22, 2016
This feature appears in the August ’16 issue of NRA America’s 1st Freedom, one of the official journals of the National Rifle Association.
In early June, the 9th Circuit Court of Appeals ruled en banc that the state of California had acted legally when it all but excised the word “bear” from the Second Amendment to the United States Constitution. The decision was a major blow to gun owners in the country’s most populous state, and a slap in the face to a Supreme Court that has affirmed that the right of the people to keep and bear arms must not be treated as a “second-class” or optional protection.
At specific issue in the case was the constitutionality of the many “may-issue” concealed-carry standards that apply within certain districts in California. Because California both prohibits open carry and makes it all but impossible for many residents to get a concealed-carry permit in lieu, the plaintiffs complained that American citizens in certain jurisdictions were being flatly denied a key element of an enumerated constitutional right. In sum, the challengers contended, it was time for California—and, in particular, San Diego and Yolo counties—to take D.C. v. Heller seriously.
“Whatever the scope of [the Second Amendment’s protection] may be,” it “simply does not extend to the carrying of concealed firearms in public by members of the general public.”Despite garbled media reports to the contrary, the plaintiffs did not argue that the Second Amendment protects the right to carry concealed weapons per se. Rather, they submitted that state regulators are constitutionally limited to making one of two choices: Either California can permit open carry but restrict or prohibit concealed carry, or it can permit concealed carry but restrict or prohibit open carry. It cannot, however, do both simultaneously, as to do so would effectively obviate the people’s capacity to “bear” arms outside of the home.
With this sensible and straightforward argument, the plaintiffs were seemingly on solid ground. Last year, a three-judge panel within the same 9th Circuit ruled in their favor, holding that the Second Amendment requires that “the states permit some form of carry for self-defense outside the home,” and that California’s “overall [statutory] scheme” fell short of this requirement. Tracking the challengers’ argument almost perfectly, the majority opinion in that decision established that the combination of a blanket ban on open carry and a “good cause” requirement for concealed carry added up to an illegal denial of the Second Amendment’s core protections. (A similar verdict was reached in the 2013 case Moore v. Madigan; the fact that Illinois at the time had essentially no provision for legal carry outside the home made the court’s decision in that case even more clear-cut.)
Alas, it seems that “sensible” and “straightforward” are not always good enough—especially when such virtues run headfirst into those with hardened agendas. En banc, the court overturned the decision of its three-man panel, and ruled instead for the state. Consequently, those who had hoped that the Bill of Rights had finally reached the West Coast intact have been left to fight another day.
To read the majority and the dissenting opinions in the case is to gain a master class in the role that emphasis and framing plays in shaping practical outcomes. In and of itself, the majority’s reasoning is not especially offensive. Writing for the majority, Judge William Fletcher observed repeatedly that there is little in the historical record to suggest that the Second Amendment contains a freestanding right to carry concealed guns. Indeed, Fletcher notes, throughout both British and American history, restrictions on concealed carry were commonplace, and only once were they struck down in court. As a result, he concludes that “whatever the scope of [the Second Amendment’s protection] may be,” it “simply does not extend to the carrying of concealed firearms in public by members of the general public.”
Yet by steadfastly limiting its attentions to the question of whether concealed carry itself is protected—rather than to the question of whether a state may effectively wipe out the right to “bear arms”—the court was able to ignore the relevant standard laid out in Heller, and to leave in place a set of rules that impose a now-verboten “severe restriction” on the Second Amendment.
That the majority elected to erect a tall wall between these two questions is openly—even proudly—conceded. The governing opinion concludes: “The Second Amendment may or may not protect to some degree a right of a member of the general public to carry a firearm in public. If there is such a right, it is only a right to carry a firearm openly. But plaintiffs do not challenge California’s restrictions on open carry; they challenge only restrictions on concealed carry. If there is a Second Amendment right of a member of the general public to carry a firearm openly in public, and if that right is violated, the cure is to apply the Second Amendment to protect that right. The cure is not to apply the Second Amendment to protect a right that does not exist under the Amendment.”The Second Amendment is a natural, individual right, and individual rights are not to be selectively upheld.
This, I’d venture, is too clever by half, for, as Judge Consuelo Callahan noted in her dissent, such an approach not only “sets up and knocks down an elaborate straw argument by answering only a narrow question,” but runs “contrary to Heller, and contrary to the prescribed method for evaluating and protecting broad constitutional guarantees.” As did the plaintiffs, Judge Callahan readily accepts that the historical record “indicates that concealed-weapons prohibitions may be proper as long as individuals retain other means to exercise their Second Amendment right to bear arms for self-defense.” But she also noted correctly that “where other ways of exercising one’s Second Amendment right are foreclosed”—as they are in California, which has a blanket open-carry ban—“a prohibition on carrying concealed handguns constitutes a ‘severe restriction’ on the Second Amendment right, just like the District of Columbia’s unconstitutional handgun ban in Heller.”
Most important of all, Callahan reminds the majority that Heller does not accord carte blanche to those who would eliminate the “bear” component from the amendment’s operative clause, but instead uses “concealed weapons prohibitions as an example of regulating the manner in which individuals can exercise their right to keep and carry a firearm for self-defense.” And she notes for posterity that “a prohibition on carrying concealed handguns in conjunction with a prohibition of open carry of handguns would destroy the right to bear and carry arms.” California, she concluded, has destroyed that right.
Practically speaking, it remains the case that the majority of advances in carry rights over the past 30 years have been won at the legislative level and not in the courts, and the most effective bulwark in favor of bearing arms is not the integrity of America’s judges, but the consistency of public opinion. Consequently, most Americans would not be affected by this ruling even if the U.S. Supreme Court were to affirm it and apply it to the country at large.
That said, those who are jealous of their liberties should by no means fall victim to complacency or nonchalance. That a constitutional right is being denied even to just a small percentage of the population in no way makes its abridgement acceptable. The Second Amendment is a natural, individual right, and individual rights are not to be selectively upheld. Moreover, the casual manner in which the en banc court breezed past the time-old standards recognized by Heller should be a cause for concern for anybody who values the rule of law and who hopes to see it applied universally. Reading the dissents, it is difficult to avoid the feeling that the majority has played a cynical parlor game here—a game that would not have been played had another part of the Bill of Rights been at stake.
And, ultimately, that should be the takeaway here. There were a host of ways in which the court could have ensured that American citizens were not being deprived of their unalienable right to self-defense, yet it opted for precisely none of them. Had it so wished, the en banc majority could have applied intermediate or strict scrutiny, which would without question have rendered the “may-issue” standard a dead letter (there is no evidence that “good cause” requirements have any effect whatsoever on crime); it could have remanded the matter to the lower courts so that California’s open-carry ban, passed in the interim, could be taken into account; and it could have elected to approach the matter as it would, say, a First Amendment case, and inquired as to whether the overall regulatory scheme had the practical consequence of freezing the right out of existence. That it did none of these things is sadly indicative of the recalcitrant attitude that many jurisdictions have adopted toward their post-Heller jurisprudence.
For now, it falls to everyday citizens to fill in the gaps that our judges in the 9th Circuit and beyond are willing to leave be. Long before there was a 9th Circuit, Alexis de Tocqueville and Edmund Burke were writing paeans to the extraordinary civil society that undergirds America’s unique liberty. In the absence of judicial relief, there are legislative fights to be won. What are we waiting for?
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