SAN FRANCISCO — In a significant victory for gun owners, a divided federal appeals court Thursday struck down California rules that permit counties to restrict as they see fit the right to carry a concealed weapon in public.
The 2-1 ruling by a U.S. 9th Circuit Court of Appeals panel would overturn restrictions on carrying concealed handguns, primarily affecting California's most populated regions, including Los Angeles, Orange County, San Diego and San Francisco.
The majority said the restrictions violate the 2nd Amendment's guarantee of the right to bear arms because they deny law-abiding citizens the ability to carry weapons in public unless they show they need the protection for specific reasons.
"We are not holding that the Second Amendment requires the states to permit concealed carry," Judge Diarmuid O'Scannlain, a Reagan appointee, wrote for the panel. "But the Second Amendment does require that the states permit some form of carry for self-defense outside the home."
The decision was hailed by gun rights advocates, who said citizens must have the right to protect themselves in public. Proponents of stricter gun control described the ruling as an aberrant and reckless expansion of law that would lead to more gun violence.
California's rules will remain in effect for the foreseeable future, pending appeals. Officials in San Diego County said they may seek a rehearing before a larger 9th Circuit panel, and experts said the issue would eventually be decided by the
Thursday's decision stems from a change in state law in 2012 that took away the right of residents to carry unloaded guns in public, with ammunition toted separately. Before the ban was enacted, courts routinely upheld restrictions on carrying concealed weapons. Gun owners argued that the ban and restrictions on concealed weapons made it impossible to defend themselves in public.
California leaves it to counties to decide permit requirements for carrying concealed weapons in public, and the rules in the state's urban centers are more restrictive than in other areas.
Gun owners who were denied permits by San Diego County sued, charging their federal constitutional rights had been denied. Although they were trained in gun use and had met background checks, they could not cite specific reasons why they needed the weapons.
"Given this requirement, the `typical' responsible, law-abiding citizen in San Diego County cannot bear arms in public for self-defense," wrote O'Scannlain, who was joined by Judge Consuelo Callahan, an appointee of former President George W. Bush.
The ruling, by two of the 9th Circuit's most conservative judges, conflicted with holdings in most other circuits and established gun rights beyond what the U.S. Supreme Court has guaranteed. The high court has applied the 2nd Amendment in the context of possessing guns in the home, not in the streets, experts said.
Judge Sidney Thomas dissented, arguing that Thursday's decision "upends the entire California firearm regulatory scheme" and "needlessly intrudes and disrupts valid and constitutional legislative choices."
Thomas, a Clinton appointee, said the 2nd Amendment has never been interpreted to protect concealed carrying of guns in public and noted that the state of California was not named as a defendant, though its rules were effectively being struck down.
Senior Deputy San Diego County Counsel James Chapin, who represented San Diego in the case, called the lawsuit that led to Thursday's decision an "end run" against the state's new ban on openly carrying guns in public.
"What they really want to do is strike down California's open carry ban," Chapin said. "That's really what this is about."
Erwin Chemerinsky, a constitutional law expert at
"They have been seeking the right to carry concealed weapons for years now," Winkler said.
Citing the 2012 ban on the open carrying of guns, Winkler said: "Gun control advocates have no one but themselves to blame for this ruling. You have to give someone some option to carry a gun."
He said that the ban on openly carrying unloaded guns affected relatively few people because most gun owners don't want the attention and questions that guns in public attract. But many more people might apply to carry concealed weapons, he said. "If you don't want many guns on the street, the answer is open carry," Winkler said.
Chuck Michel, who represented the gun owners in the case, said the suit targeted the San Diego sheriff because the county has an "active client base" of 2nd Amendment supporters. He said the county's rules discouraged gun owners from even applying for a concealed weapon permit.
The ruling affects only California and Hawaii among 9th Circuit states because the others have rules that favor the granting of permits to carry guns in public, according to Eugene Volokh, a professor of constitutional law at UCLA.
"California's rules are essentially unconstitutional because the rule is, your right to carry a gun is at the mercy of the sheriff," Volokh said.
Dianne Jacob, chairwoman of the San Diego County Board of Supervisors, said her initial reaction was positive."I have no problem with law-abiding citizens carrying concealed weapons in the name of self-defense," Jacob said.
Gun control advocates expressed hope the decision would be overturned.
"The parents of Jordan Davis [a Florida teen allegedly slain for playing rap music too loudly at a gas station] and Trayvon Martin, whose children were killed by licensed concealed-carry holders, could educate the court about the real dangers posed by this legal error," said Jonathan Lowy, director of the Legal Action Project for the Brady Center to Prevent Gun Violence.