California can’t challenge ruling on concealed guns, court says

SAN FRANCISCO —  Relaxed rules for carrying concealed guns in public may not be challenged by California state officials or advocacy groups, a federal appeals panel decided Wednesday.

The decision was another victory for gun rights advocates, but it was not likely to be the last word. The state has the right to appeal Wednesday’s order and legal analysts expect the state to do so. There is another pending gun case involving the right to carry concealed weapons in California and a ruling in that case could resolve the debate.

In its 2-1 ruling Wednesday, the U.S. 9th Circuit Court of Appeals denied an attempt by Atty. Gen. Kamala D. Harris, a gun control group and law enforcement associations to intervene in a case that struck down San Diego County’s policy of tightly restricting the carrying of concealed guns. Gun owner Edward Peruta was the lead challenger of the San Diego rules.

State law allows county law enforcement agencies to set rules that limit permits for concealed guns. The 9th Circuit panel that ruled Wednesday decided on the same split vote in February that San Diego County’s policy requiring law-abiding gun owners to show a specific need for protection violated the 2nd Amendment’s guarantee of the right to bear arms.

Though the pro-gun ruling technically applied only to San Diego, it is being cited as a precedent in other gun challenges and some California counties have already chosen to follow it. San Diego and Orange counties relaxed their rules after the ruling and issued scores of permits to carry concealed guns in public.

Harris and the other groups decided to intervene after San Diego County Sheriff William D. Gore refused to appeal the 9th Circuit’s decision.

Judges Diarmuid F. O’Scannlain and Consuelo M. Callahan — Republican appointees who are considered the most conservative jurists in the 9th Circuit — said Harris and the others waited too long to get involved. The majority also said that its February ruling did not question the constitutionality of a state law, only the way San Diego County chose to regulate guns under California law.

Judge Sidney R.Thomas, a Clinton appointee, dissented. He said the February decision affected the entire state, and California had a right to defend its policies.

“That the opinion primarily addressed state regulation of handguns could hardly be clearer,” he wrote.

David Madden, a spokesman for the 9th Circuit, said California has the right to ask an 11-judge panel to review Wednesday’s decision.

In that case, said UCLA law professor Adam Winkler, an expert on gun law, “There is a long way to go before this is settled.”

UC Irvine Law Dean Erwin Chemerinsky said Wednesday’s decision would have little effect on whether a larger panel of the 9th Circuit agrees to review the February ruling. If a majority of judges believes the pro-gun ruling should be reconsidered by a larger “en banc” panel, the judges will permit the state to intervene, he said.

“I don’t think this order changes anything,” Chemerinsky said.

Harris refused Wednesday to say what she will do. Gun advocates have only mildly opposed Harris’ intervention. They believe the Peruta case is the best vehicle to persuade the Supreme Court to strike down restrictive open carry regulations throughout the country, and an appeal would move the case closer to the Supreme Court.

“The attorney general can now decide whether the Peruta case ends here,” said Chuck Michel, a lawyer who represented gun owners in the case.

Even if Wednesday’s ruling in the Peruta case were not appealed, the 9th Circuit could take up the issue en banc in a similar concealed weapons case out of Yolo County.

Jonathan Lowy, director of legal action for the Brady Campaign to Prevent Gun Violence, said the court misinterpreted the law when it denied California and others the right to challenge the February ruling.

“We are now considering our options,” said Lowry, whose group also sought to intervene.

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