Neil Gorsuch, newly sworn in as an associate justice on the U.S. Supreme Court, is taking his seat at a busy time for the court. Beginning this week, the Court will meet in conference to decide what cases it will hear in the near future, and the future of the right to keep and bear arms could depend on the outcome.
In the Peruta case, which is one of the cases up for consideration this week, the 9th Circuit Court of Appeals originally concluded in a 2-1 decision that San Diego County is violating the constitutional rights of residents by not recognizing self-defense as a valid reason to acquire a concealed-carry license. The judges found that the denial of a concealed-carry license, coupled with California’s ban on the open carrying of firearms, amounts to an infringement on the right to keep and bear arms. However, that decision was overturned by a broader panel of judges on the 9th Circuit. In the en banc decision, the 9th Circuit held that “there is no Second Amendment right to carry a concealed firearm in public.” What about the open carry ban? The en banc review claimed that the question was beyond the scope of the lawsuit and would require additional litigation before the constitutionality of an open carry ban could be addressed. To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald.
If the Supreme Court doesn’t agree to hear Peruta, then the en banc decision will remain in force throughout the western states that comprise the 9th Circuit. A new challenge to the state’s open carry ban has been filed, but it will be years before it gets to the Supreme Court for an appeal. In the meantime, millions of Americans will have their Second Amendment rights curtailed by a court that refuses to examine the real question: Do we have a right to bear arms for self-defense outside of the home?
Increasing the chances that the Supreme Court might hear Peruta is the fact that there is a significant split among the courts of appeals on the issue of bearing arms for self-defense outside of the home. In Moore v. Madigan, the 7th Circuit Court of Appeals concluded: “A Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress. But Illinois wants to deny the former claim, while compelled by McDonald to honor the latter. That creates an arbitrary difference. To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald.”
Illinois Attorney General Lisa Madigan decided not to appeal the 7th Circuit’s decision to the Supreme Court, and instead the state moved to adopt a “shall-issue” concealed-carry law (It’s interesting to note that Illinois didn’t adopt a law similar to California’s, even though anti-gun sentiment runs strong in the state legislature). If the Supreme Court had the chance to consider this case back in 2013, perhaps the Peruta case would be superfluous. It’s not. It’s the best chance the Supreme Court will have in years to put to rest the idea that the right to keep and bear arms exists only inside the home. Let’s hope with the addition of Neil Gorsuch to the Supreme Court that there are four justices ready to vote to hear the case.
Cam Edwards is the host of “Cam & Co.,” which airs live 2-5 p.m. EST on NRATV and midnight EST on SiriusXM Patriot 125. He lives with his family on a small farm near Farmville, Va. Follow him on Twitter and Instagram @camedwards.