Peruta v. Gore, Part II: The Ninth Circuit Ruling

Editor’s note: This is the second part of a two-part piece on Peruta v. Gore and open carry vs. concealed carry. Please read case the opinion in its entirety for full insight to the majority’s opinion and the minority’s dissent. Only excerpts will be provided here.

An en banc ruling with the full panel of the Ninth Circuit District Court of Appeals was held, largely at the behest of California's Democrat Attorney General and Senate candidate, Kamala Harris. This overturned the pro-gun earlier ruling, which determined in the absence of legal open carry in California, concealed carry could not be prohibited, turning California into a de facto 'shall issue' state. This only applied in counties where the sheriffs had the moral fortitude to honor the opinion, rather than continue to infringe on the right to bear arms and stall until this decision affirmed their cowardly behavior. 

The insulting and maddening gist of the majority’s opinion: 

“The en banc court held that the history relevant to both the Second Amendment and its incorporation by the Fourteenth Amendment lead to the same conclusion: The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment. Therefore, because the Second Amendment does not protect in any degree the right to carry concealed firearms in public, any prohibition or restriction a state may choose to impose on concealed carry — including a requirement of ‘good cause,’ however defined — is necessarily allowed by the  Amendment. The en banc court stated that there may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public, but the Supreme Court has not answered that question.” 

“If there is a Second Amendment right of a member of the general public to carry a firearm openly in public, and if that right is violated, the cure is to apply the Second Amendment to protect that right. The cure is not to apply the Second Amendment to protect a right that does not exist under the Amendment.” 

Being so biased against the right to armed self-defense, the willingly ignorant fools in black dresses myopically ignored that the Second Amendment simply states “the right to bear arms […] shall not be infringed.” No method is specified or banned, but the encroachment upon the right to bear arms is specifically banned.

The fact of the matter is that no argument is too torturous, no defense too illogical, and no evidence too insurmountable, for them to ignore to promote their political agenda. These ‘justices’, blind to anything but their own biases, prejudices, and the wishes of those in their narrow circle, would do anything they could do to keep Californians disarmed. No doubt they will find an equal excuse to continue to prohibit open carry when the time comes.

While the cases cited in support of the majority opinion all held that concealed carry could be banned, it doesn’t make those cases or this decision right. Those old cases do uphold open carry as constitutional, and therefore above any legitimate legislative reproach. As for the logic behind the cases themselves, reasoning and thinking that has long since changed and been invalidated by historical evidence cannot and should not be used to justify the validity of these old arguments.

This anti-concealed carry attitude is based on a long-standing historical attitude that concealed carry was underhanded, unfair, and only something that criminals did. Coupled with modern attitudes and the lack of any compelling argument that especially licensed concealed carry leads or contributes to criminality, the old arguments hold no water.

The majority justices also use sparse examples and typical foolish anti-gun logic to support the fact that licensed, trained concealed carriers are somehow akin to the bandit roaming coast coach roads in 16th Century England or a poker shark with a Derringer up his sleeve. They ignore the fact that a criminal will concealed illegally anyway, often without a holster or even minimal training. The facts and the experiences especially of the last 20-50 years show the exact opposite. Popular opinion shows concealed carry to be preferred over open carry by most Americans who carry, for various reasons.

While the justices may have a point that "the uncontradicted historical evidence overwhelmingly shows, the Second Amendment does not protect, in any degree, the right of a member of the general public to carry a concealed weapon in public", the plain language of the Second Amendment invalidates that argument. "Shall not be infringed" was as clear in the 'olden days' as it is now and, as the examples from the concurring justices showed, have been consistently ignored by the courts. Such words are extraordinary clear. One would never seriously question the First Amendment's clause "Congress shall make no law..." Or as the dissent opined: "Defining the constitutional right to bear arms narrowly is inconsistent with judicial protection of other fundamental freedoms."

The idea that concealed carry is not constitutionally protected is laughable. Courts contain themselves to prior case law and only deviate from that to logic in the most momentous of cases, such as Brown v. Board of Education. Had the Warren Court relied on case law, separate but equal would still be the law of the land. Case law is not always right. Being California, the entrenched, liberal-activist justices of the Ninth Circuit would not rule any other way and this was the expected outcome.

It is no less heinous miscarriage of justice, even if phrased well and founded on case law. The trouble with English common law, the system which we practice, is limited by this near total reliance on what was done in the past. Strict textual scrutiny to the Constitution, combined with logic relying upon the totality of facts, should indeed be the guide. "Shall not be infringed" means just that, but the byzantine way the 'justice' system works is to look to an affirm years of poor decisions.

Had the justices wanted to believe that the Constitution means what it says and should be applied literally and strictly, this decision would not have been made. Yet personal and institutional bias came together to ignore contemporary evidence and feelings that invalidated the historical evidence in favor of banning concealed carry. Reaffirming outdated beliefs that have no basis in reality and in direct conflict with the Second Amendment's plain language are an affront to Americans of ordinary intelligence. The concurring justices are nothing more than dottering old fools seeking to preserve the liberal status quo because they lack integrity.

Basing a decision upon old fashioned notions of criminal behavior and beliefs from the beginning of the last Century is wrong. Simply because courts made the wrong decisions for centuries and a long, long time ago some people thought something was bad, doesn't mean we should keep making wrong decisions or believing something that facts do not support.

Had this been a decision about gays or minorities, relying on opinions that gays are all perverts or all minorities are stupid, inferior, violent thieves, protests would be choking the streets of San Francisco. You can't apply 18th and 19th Century beliefs in today's world. 

I want to be clear that the Constitution does not change in light of modern sensibilities or beliefs. The words and meaning stay the same and should be interpreted accordingly. But here the decision was tied to cases rooted in laughably outdated and uniformed opinions. Simply because concealed carry was long considered evil, and no longer is, does not mean that opinion should continue, chiefly in light that all available evidence points to concealed carry as a good thing.

This approach was totally ignored in preferring 19^th Century schools of thought. The dissent gets it right: 

"This evidence is of questionable relevance to the issues in this case because it does not
distinguish between firearm violence committed by people who are either concealed carry license holders or are qualified to obtain such a license and firearm violence committed by people who could not obtain a concealed carry license because of either their criminal record or because they have not completed the necessary course of firearms training. 

"There is simply no evidence in the record showing that establishing a licensing regime that allows trained law abiding citizens to carry concealed firearms in public results in an increase in gun violence. Indeed, the only evidence in the record shows the exact  opposite. Amici have provided evidence showing that concealed-carry license holders are disproportionately less likely to commit crimes – including violent crimes such as aggravated assault with a deadly weapon – than the general population, and that the adoption of a concealed carry licensing regime such as the one proposed by Plaintiffs in other areas of the country has either had no effect on violent crime or has helped reduce violent crime." 

Conclusion

With the loss of Justice Scalia, the chances of the Supreme Court doing the right thing and overturning the Ninth Circuit’s ruling, and hopefully affirming “shall not be infringed” means what it says, are slim. In fact, many speculate that the reason the Supreme Court has not taken a significant gun rights case recently is because Justice Breyer has been wishy-washy and his conservative colleagues fear he made side against the Second Amendment.

California’s and many jurisdictions’ only hope now resides with the Supreme Court exercising a power not delegated to it by the Constitution, but by itself. While the Second Amendment should be interpreted as clearly as the First Amendment is interpreted is, one cannot bet on this outcome. The Federal Judiciary is essentially a tyranny. Compare many Supreme Court or District Court rulings against the abuses Thomas Jefferson leveled against King George III in the Declaration of Independence. Hope is thin. At that point, only radical action, such as an unprecedented act of Congress or a constitutional amendment could reverse the action.

Now is the time to reform the system. All efforts should be made to politically force change, such as the states or Congress requiring federal judges be retired after ten years and requiring some sort of check on judicial power. Despite one’s own personal opinions, the only chance at filling the vacant ninth position on the Supreme Court is through a Trump presidency. Clinton’s appointee would surely be the most liberal that could pass through the Senate.

Given the dramatic changes to the country in the last eight years, anything short of radical action by the states or Congress would result in civil war and outright armed rebellion if the Second Amendment were eviscerated. Everything must be done to avoid the bloodshed that many conservatives and gun owners are beginning to fear is inevitable. This is it, time to get serious about gun rights or bury them in the backyard.