9th Circuit Strikes Down "May Issue" Concealed carry In California

So California had a "may ssue" concealed carry licensing system, in which it was left up to the opinion of the local sheriff whether or not the license was issued. San Diego County, for all intents and purposes, denied this right to every applicant - unless, of course, you had the appropriate political connections. The 9th Circuit just tossed that law out the window, ruling that self defense outside the home was a core right guaranteed by the 2nd Amendment's right to bear arms.



The ruling.



Some relevant passages:

Quote:

Our conclusion that the right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense is perhaps unsurprising—other circuits faced with this question have expressly held, or at the very least have assumed, that this is so. Put simply, a law that destroys (rather than merely burdens) a right central to the Second Amendment must be struck down. We thus disagree with those courts—including the district court in this case—that have taken the view that it is not necessary (and, thus, necessary not) to decide whether carrying a gun in public for the lawful purpose of self-defense is a constitutionally protected activity. See, e.g., Drake, 724 F.3d at 431; Woollard, 712 F.3d at 876; Kachalsky, 701 F.3d at 89; cf. Masciandaro, 638 F.3d at 475. Understanding the scope of the right is not just necessary, it is key to our analysis. For if self-defense outside the home is part of the core right to “bear arms” and the California regulatory scheme prohibits the exercise of that right, no amount of interest-balancing under a heightened form of means-ends scrutiny can justify San Diego County’s policy.

And the 8th criticized recent 2nd, 3rd, and 4th Circuit Court decisions upholding "may issue":

Quote:

Our reading of the Second Amendment is akin to the Seventh Circuit’s interpretation in Moore, 702 F.3d at 936–42,20 and at odds with the approach of the Second, Third, and Fourth Circuits in Drake, 724 F.3d at 431–35, Woollard, 712 F.3d at 876, and Kachalsky, 701 F.3d at 89, 97–99. a We are unpersuaded by the decisions of the Second, Third, and Fourth Circuits for several reasons. First, contrary to the approach in Heller, all three courts declined to undertake a complete historical analysis of the scope and nature of the Second Amendment right outside the home. Compare Heller, 554 U.S. at 605 (examining the post-ratification interpretations of the Second Amendment because “the public understanding of a legal text in the period after its enactment or ratification” is “a critical tool of constitutional interpretation” (emphasis omitted)), with Drake, 724 F.3d at 431 (noting that the court was “not inclined to address [text, history, tradition and precedent] by engaging in a round of fullblown historical analysis” and relying on the Second Circuit’s conclusion that “[h]istory and tradition do not speak with one voice” (quoting Kachalsky, 701 F.3dat 91)); Woollard, 712 F.3d at 874–76 (declining to “impart a definitive ruling” regarding the scope of the Second Amendment right), and Kachalsky, 701 F. 3d at 91 (refusing to look at “highly ambiguous history and tradition to determine the meaning of the Amendment”). As a result, they misapprehend both the nature of the Second Amendment right and the implications of state laws that prevent the vast majority of responsible, law-abiding citizens from carrying in public for lawful self-defense purposes. For example, in Kachalsky, the Second Circuit’s perfunctory glance at the plaintiffs’ historical argument misunderstood the historical consensus regarding the right to bear arms outside the home. Relying on three cases, the court concluded that “history and tradition [did] not speak with one voice” regarding the ability to restrict public carry because at least three states “read restrictions on the public carrying of weapons as entirely consistent with constitutional protections.” Kachalsky, 701 F.3d at 90–91 (citing Fife v. State, 31 Ark. 455 (1876), English, 35 Tex. at 473, and Andrews v. State, 50 Tenn. 165 (1871)). But in its brief historical analysis, the court missed a critical factor: the cases it cites in favor of broad public carry restrictions adhere to a view of the Second Amendment that is and always has been incorrect. Cf. Moore, 702 F.3d at 941 (referencing “disagreement . . . with some of the historical analysis in [Kachalsky because] we regard the historical 65 issues as settled in Heller”). All three cases interpret the Second Amendment as a militia-based (rather than a self-defense-centered) right; they uphold regulations on carrying pistols in public because pistols are not the type of weapons that would be used by militia men. See Fife, 31 Ark. at 461 (upholding a prohibition against carrying pistols in public because such weapons are “used in private quarrels and brawls” and are not “effective as a weapon of war, and useful and necessary for ‘the common defense’”); English, 35 Tex. at 475 (“[W]e shall be led to the conclusion that the [Second Amendment] protects only the right to ‘keep’ such ‘arms’ as are used for purposes of war, in distinction from those which are employed in quarrels and broils, and fights between maddened individuals . . . .”); Andrews, 50 Tenn. at 186–87 (affirming the constitutionality of a law regulating public carry of certain weapons which were not the “usual equipment of the soldier” but remanding for consideration of whether a revolver was the “character of weapon” used in warfare). Because the Second Amendment has always been an individual right to defend oneself, cases that—like these—uphold gun regulations because they do not offend the militia-based nature of the right are inapposite and should not factor into a historical analysis of the right’s scope. See, e.g., Heller, 554 U.S. at 605. And with these cases off the table, the remaining cases speak with one voice: states may not destroy the right to bear arms in public under the guise of regulating it. See, e.g., Kachalsky, 701 F.3d at 90 (recognizing that some state courts “offered interpretations of the Second Amendment” consistent with the plaintiffs’ position that “though a state may regulate open or concealed carrying of handguns, it cannot ban both”); see also Drake, 724 F.3d at 449 (Hardiman, J., dissenting) (noting that the “crux of the[] historical precedents[] endorsed by the Supreme Court, is that a prohibition against both open and concealed carry without a permit is different in kind, not merely in degree, from a prohibition covering only one type of carry”). In light of Heller, the Second Circuit erred in outright rejecting history and tradition as unhelpful and ambiguous, and the Third and Fourth Circuits erred in following suit.

A great victory for civil rights in California, now with the circuit split (7th and 9th cs. 2nd, 3rd, and 4th) clarification by the SCOTUS looks unavoidable, and I'm betting they rule consistent with Heller and the plain meaning of the 2nd Amendment.

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