Even if you accept the notion that the 2nd Amendment confers an individual right to bear arms — a proposition we wish the Supreme Court had rejected — states should be able to place reasonable restrictions on that right in the interests of public safety. One such restriction is California's requirement that permits to carry a concealed weapon be issued only for "good cause." Last week, a federal appeals court needlessly weakened that provision.
By a 2-1 vote, a panel of judges of the U.S. 9th Circuit Court of Appeals ruled in favor of five residents of San Diego County who had challenged the county's interpretation of the good cause requirement, which denies permits to applicants who can't cite some specific threat to their safety. (Los Angeles County has a similarly restrictive policy.)
Writing for the court, Judge Diarmuid O'Scannlain said that the county's strict rules on concealed weapons, coupled with California's almost complete ban on the open carrying of firearms, violated the 2nd Amendment's protection of "some form of carry for self-defense outside the home."
There are two problems with this conclusion. In 2008, the Supreme Court did rule that the 2nd Amendment protected an individual right to "keep and bear arms" — a decision that upended a long-standing consensus that the amendment was intended only to provide for a "well-regulated militia." But Justice Antonin Scalia's majority opinion made clear that the case involved only prohibitions on handguns "in the home."
Equally important, Scalia acknowledged that the right to bear arms is "not unlimited." He specifically noted 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."
In his dissent last week, 9th Circuit Judge Sidney Thomas rightly argued that his colleagues should have confined their inquiry to the questions of whether the 2nd Amendment protected the concealed carrying of handguns in public and whether San Diego's rules infringed on that right. That approach would have yielded a different result.
In some circumstances, permitting a citizen to carry a concealed weapon is justified. But holders of such permits sometimes misuse their weapons, as a Florida jury concluded Michael Dunn did when he fired into an SUV after a dispute about loud music. (On Saturday, the jury convicted Dunn of attempted murder but failed to reach a verdict on the charge that Dunn murdered 17-year-old Jordan Davis.)
Given the dangers posed by a proliferation of guns in public, states and counties should be able to insist that applicants demonstrate good cause before receiving a permit. We hope that San Diego County seeks a review of this ruling by a larger group of 9th Circuit judges or by the Supreme Court.