Did the 9th Circuit Court just kill gun control?

Last year, after the U.S. 7th Circuit Court of Appeals struck down Illinois’ blanket ban on the carrying of “ready to use” guns outside the home, a Los Angeles Times editorial said this:

“Even if it were affirmed by the Supreme Court, the 7th Circuit’s decision probably wouldn’t threaten most state laws that impose sensible restrictions on the carrying of firearms. (In California, applicants for a ‘carry a concealed weapon’ permit must prove that they are of ‘good moral character,’ have sufficient cause to carry a weapon and have received firearms training.)”

We were wrong — sort of. The Supreme Court never got to rule on the Illinois law because that state’s legislature took the appeals court’s advice and enacted a new and more permissive law. But on Thursday, the 7th Circuit’s decision was cited (along with lots of other cases) in a decision by the U.S. 9th Circuit Court of Appeals striking down San Diego County’s system for issuing concealed-carry permits.

San Diego County requires that applicants for a concealed-carry permit demonstrate that they have good cause for carrying a concealed weapon. But a generalized concern for one’s personal safety doesn’t qualify as “good cause.”

The 9th Circuit saw that as a fatal flaw. Writing for the majority, Judge Diarmuid O’Scannlain said that the policy abridged the right to bear arms in self-defense recognized by the Supreme Court in 2008 in District of Columbia vs. Heller.

Heller was the case in which a divided court said that the 2nd Amendment’s language about a right to “keep and bear arms” protected an individual right. That ruling, and a subsequent decision involving a gun control law in Chicago, involved bans on possessing guns in the home. But, following the 7th Circuit, O’Scannlain concluded that the right to bear arms in self-defense “could not rationally be limited to the home.”

That’s probably the right reading of Heller. But there is a second issue in the San Diego case: whether government may ban the concealed carrying of firearms. In his dissent, Judge Sidney Thomas cited a passage in the Heller majority opinion noting that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the 2nd Amendment or state analogues.”

But O’Scannlain has a comeback for that argument: Because California doesn’t allow its residents to carry guns in public openly, concealed carrying is the only way a Californian can assert his 2nd Amendment right to self-defense.

So is this decision (assuming it survives an appeal) a fatal blow to gun control? Not necessarily. States and counties could satisfy the court by accepting that a generalized interest in self-defense is a “good cause” justifying a concealed-carry permit.

But that wouldn’t prevent authorities from enumerating factors that would disqualify an applicant for a permit: mental illness, a criminal record or presence at a school or other sensitive location. In Heller, Justice Antonin Scalia made it clear that “nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

The 9th Circuit’s decision will displease advocates of gun control. But their real quarrel is with the Supreme Court’s belated discovery that the 2nd Amendment protects an individual right, not just the ability of states to form “well-regulated militias.” Once that principle was established, it was clear, for good or ill, that gun-control regulations would have to be carefully drawn.

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