I tend to stay away from politics on this blog, since I prefer to stick to the actual subject of shooting. But I do pay attention to the political winds, as well as important court cases. Right now, the 9th Circuit is setting to hear an en banc review of the Peruta decision in California.
The 9th had previously ruled against the State of California, which has a “may issue” type of concealed carry permit. The contention is that the “may issue” statute means that county sheriffs have discretion to decide is an individual has “good enough cause” to be issued a permit. “Self Defense” is not a good enough cause, by the way. The real issue pops up when one sheriff was sued recently and had to release all of their documentation about what constituted “good cause” for them to issue a permit. The finding was that the cause was irrelevant, and who received a permit had more to do with political contribution or notoriety.
Since the 9th ruled against the state, the Attorney General filed for an En Banc review– which basically means she didn’t like the ruling, and wants a new group of judges to look at the case again. Regardless of the outcome, this case will head to the Supreme Court next.
In any event, the filing process for briefs has begun. The brief filed by the governor of Texas particularly caught my eye. I’ll post an excerpt below, but do read the whole thing if you can.
The question presented is whether the State of California can single out one group of disfavored citizens—namely, gun owners—and impose unique burdens on their fundamental rights. If this were a case about speech, the right to counsel, or any of the myriad rights protected by the Fourteenth Amendment, every federal court in this country would reject California’s arguments out of hand. Indeed, no other group of private citizens has to prove—to the satisfaction of a government official vested with unreviewable and boundless discretion—that they really need to exercise their fundamental constitutional freedoms.
California’s only purported justification is that guns are somehow different because they pose unique “public safety” concerns. That blinks reality. It cannot be disputed that concealed-carry permit-holders are disproportionately less likely to pose threats to “public safety.” And empirical evidence proves that concealed-carry laws either reduce crime or have no effect on it. Given that it cannot be justified by facts, California’s efforts to ban the carriage of guns “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Romer v. Evans, 517 U.S. 620, 634 (1996).
That animus or irrational fear is no less unconstitutional here than it would be in any other area of constitutional law. As the Supreme Court has held, the Second Amendment does not create “a second-class right.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010).
I. CALIFORNIA IS WRONG ON THE LAW
A. Outside of the context of guns, no federal court would countenance any effort by a State to condition the constitutional rightsof its citizens on the unreviewable discretion of a sheriff to find “good cause” for their exercise. Imagine if California did any of the following:
- No speech unless a sheriff finds “good cause” for it;
- No public assembly unless a sheriff finds “good cause” for it;
- No religious exercise unless a sheriff finds “good cause” for it;
- Compelled quartering of soldiers if a sheriff finds “good cause” for it;
- Compelled searches, seizures, and arrests if a sheriff exercises unreviewable discretion to find “good cause” for them;
- No grand juries unless a sheriff finds “good cause” for them;
- No protection against double jeopardy if a sheriff finds “good cause” for dispensing with it;
- Compelled taking of private property if a sheriff finds “good cause” for it;
- No speedy trials if a sheriff finds “good cause” for dispensing with them;
- No public trials if a sheriff finds “good cause” for dispensing with them;
- No impartial juries if a sheriff finds “good cause” for dispensing with them;
- No right to confront witnesses if a sheriff finds “good cause” for dispensing with it;
- No right to counsel if a sheriff finds “good cause” for dispensing with it;
- No right to avoid excessive bail if a sheriff finds “good cause” for dispensing with it; No right to avoid excessive fines if a sheriff finds “good cause” for dispensing with them;
- No right to avoid cruel and unusual punishment if a sheriff finds “good cause” for dispensing with it; or
- No right to anything protected by the Fourteenth Amendment if the sheriff finds “good cause” for dispensing with it.
Lawyers and non-lawyers alike would agree that those hypotheticals are absurd.
But when it comes to regulating gun rights, California thinks that the State can do things that would be unthinkable in other areas of constitutional law. To take just one of the examples above, it is well settled that the government cannot give public officials unbridled discretion to determine whether a would-be speaker has good cause to speak; that is because “unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.” Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757 (1988); see also Saia v. New York, 334 U.S. 558 (1948); Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v. New York, 340 U.S. 290 (1951); Staub v. City of Baxley, 355 U.S. 313 (1958); Freedman v. Maryland, 380 U.S. 51 (1965); Cox v. Louisiana, 379 U.S. 536 (1965); Shuttlesworth v. Birmingham, 394 U.S. 147 (1969); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123 (1992). As the Supreme Court held more than a half-century ago:
It is settled by a long line of recent decisions of this Court that an ordinance which . . . makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official—is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. Staub, 355 U.S. at 322.
B. When it comes to gun freedoms, though, California gives its sheriffs the same unbridled discretion that is anathema to other areas of constitutional law. To get a permit to carry a firearm, a Californian first must prove to the sheriff that he or she has “good moral character”—a vacuous standard that has an ignominious pedigree. For example, “[i]n 1960 the Mississippi state constitution was amended to add a new voting qualification of ‘good moral character,’ an addition which it is charged was to serve as yet another device to give a registrar power to permit an applicant to vote or not, depending solely on the registrar’s own whim or caprice, ungoverned by any legal standard.” United States v. Mississippi, 380 U.S. 128, 133 (1965) (footnote omitted).
Second, a Californian who wants to carry a gun also must prove to the sheriff’s satisfaction “good cause” for exercising his or her constitutional rights.1F 2 Crucially, “concern for one’s personal safety alone is not considered good cause.” Panel Op. at 7 (emphasis added). Rather, to establish “good cause,” the applicant must supply “supporting documentation” that proves that the applicant faces a “unique risk of harm.” Id. at 49. Examples of such “supporting documentation” include “restraining orders, [and] letters from law enforcement agencies or the [district attorney] familiar with the case.” Id. at 7. “If the applicant cannot demonstrate ‘circumstances that distinguish [him] from the mainstream,’ then he will not qualify for a concealed-carry permit.” Ibid.
But that conception of “good cause” would turn the Constitution’s text and meaning on its head. The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. That is, the right belongs to “the people,” not to some subset of “unique” people who can successfully convince a sheriff that they (unlike their more-common neighbors) really need to carry a firearm. See also District of Columbia v. Heller, 554 U.S. 570, 579-80 (2008). Thomas Cooley, the leading constitutional scholar after the Civil War, explained it this way:
When the term ‘the people’ is made use of in constitutional law or discussions, it is often the case that those only are intended who have a share in the government through being clothed with the elective franchise. . . . But in all the enumerations and guaranties of rights the whole people are intended, because the rights of all are equal, and are meant to be equally protected.
THOMAS M. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 267-68 (1880; reprint 2000) (interpreting the First Amendment); see also id. at 270-71 (interpreting the Second Amendment); THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE AMERICAN UNION 350 (1880) (same); Heller, 554 U.S. at 617-19 (same). California’s approach to carrying firearms—that the right extends only to some, and only to those who are somehow “unique”—flagrantly violates these principles.
California offers only one justification for treating the Second Amendment differently from all other constitutional provisions: “public safety.” But the Supreme Court has emphatically rejected the notion that the government can use “public safety” concerns as a pretense for discriminating against gun rights. See McDonald, 561 U.S. at 782-83 (rejecting Chicago’s argument “that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety”). Thus, California is wrong to suggest that its public safety concerns give the State a legal basis to impose special and draconian burdens on Second Amendment rights.