case law update

Constitutional Individual Right to Carry Firearm Outside Home? Supreme Court Considers Hearing Case

The Supreme Court is considering whether to hear a case which asks whether the Second Amendment entitles ordinary citizens to carry handguns outside the home for self-defense. 

California allows only those individuals who obtain a license to lawfully carry a concealed handgun outside of the home. Concealed-carry licenses are issued by the sheriff or police chief in the county or city where the individual lives or works. The state requires applicants to meet a number of eligibility requirements, including passing a criminal background check and successfully completing a training course on handgun safety and California firearms laws. Applicants must also convince the sheriff or police chief that the applicant is of “good moral character,” and has “good cause” to carry a loaded handgun in public. The state leaves the definition of “good cause” to each sheriff or police chief.

Most sheriffs and police chiefs interpret “good cause” to include an individual’s desire to carry a handgun in self-defense in case of confrontation. The Sheriff of San Diego County does not. In San Diego County, an applicant is required to prove a particularized need to carry a handgun in public, with evidence demonstrating a specific situation that places the applicant in danger. Such evidence could include restraining orders, law enforcement referrals, or documented victim case incidents or threats. If an applicant cannot document a particularized threat distinguishing his or her need for self-defense from that of other citizens, the sheriff will not issue a concealed-carry license.

Edward Peruta and four other residents of San Diego County challenged that California law by filing a complaint in federal district court in October 2009, contending their sheriff’s application of the concealed-carry statute essentially prohibited ordinary residents from carrying a handgun for self-defense outside the home at all. As remedy, the residents asked for a declaration of the sheriff’s application of the California law as unconstitutional and an accompanying injunction on that application of law. The district court held against the residents, finding the sheriff’s interpretation constitutional, and they appealed to the U.S. Court of Appeals for the Ninth Circuit.

A three-judge panel of Ninth Circuit judges agreed with the petitioners, holding that San Diego County could not deprive residents of the ability to obtain concealed-carry licenses when California law prohibits open carry. But on rehearing en banc before the entire Ninth Circuit panel, in a 7-4 decision, the appeals court concluded the San Diego Sheriff’s policy of reserving concealed-carry licenses to those who can document a particularized need for self-defense was constitutional because individuals have no independent constitutional right to concealed carry.

On January 12, 2017, seven years into litigation and represented by a former Solicitor General of the United States, the San Diego residents petitioned the Supreme Court of the United States for writ of certiorari, to decide whether the Second Amendment guarantees an individual right to carry firearms outside the home for general reasons of self-defense. Petitioners argue the Supreme Court should hear their case because courts across the country have taken four different positions on the questions, ranging from applying the Second Amendment “with full force” outside the home to not applying outside the home “at all.”

More than twenty-five states, the National Rifle Association, and other interested groups filed amicus briefs in support of the petition. The respondents filed in opposition.

The Supreme Court has distributed the petition for conference six times, including May 11, 2017, to decide whether to hear the case. FedAgent will report on the Supreme Court’s decision whether to grant certiorari when the decision issues.

Read the petition for certiorari and associated briefs: Peruta v. California


This case law update was written by James G. Heelan, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.


Posted in Case Law Update

Tags: carrying firearms, purchasing a gun, second amendment


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