Gun rights in California: court to hear another showdown

By Howard Mintz

hmintz@mercurynews.com

It is time for another duel over gun rights in California.

In a hearing set for Tuesday in San Francisco, a special 11-judge federal appeals court panel will consider whether to side with the gun lobby's effort to dramatically loosen California's restrictions on carrying concealed firearms.

While the case involves challenges to regulations in San Diego and Yolo Counties, it has implications for local gun control efforts across the state, including most Bay Area counties that have similar restrictions in place.

And depending on how the 9th U.S. Circuit Court of Appeals rules, the outcome could force the U.S. Supreme Court to address what many legal experts consider one of the most important unresolved issues in the gun debate -- how far the constitutional right to bear arms extends outside the home.

Concord resident Alany Helmantoler carries her unloaded firearm as she waits to have dinner outside a restaurant in this 2011 file photo. (Ray Chavez/Bay Area News Group archive)

"It may be the biggest unanswered question in the Second Amendment," said UCLA law professor Adam Winkler. "This is a big question and an important one."

The 9th Circuit case has attracted national attention, in part because the court is reconsidering an earlier ruling that broke new ground by invalidating San Diego's strict but common guidelines for issuing concealed-carry gun permits. In that ruling last year, a divided three-judge panel found San Diego's restrictions trampled on the Second Amendment rights of private citizens to carry a gun for self-defense.

After a tortured procedural battle, prompted by San Diego abandoning defense of the law, the 9th Circuit voted on its own to rehear the case. Most legal experts predict the court is likely to uphold the regulations, particularly given that much of the 11-judge panel is comprised of liberal to moderate Democratic appointees.


The judges in recent months have been inundated with legal arguments pitting the gun lobby against gun control advocates and Attorney General Kamala Harris, who urged the 9th Circuit to uphold such regulations.
The case was triggered by a former police officer, Edward Peruta, who is backed by groups such as the National Rifle Association. Peruta sued San Diego County in 2010 when he was denied a concealed carry permit because authorities found he did not prove "good cause" for needing one.
Twenty-one states have jumped into the case backing Peruta, arguing that regulations such as San Diego's violate the right to bear arms in self-defense. Among other arguments, gun rights groups say their position is backed by two major U.S. Supreme Court decisions over the past decade striking down bans on handguns in the home.
Chuck Michel, a top lawyer for the NRA, said gun control groups are waging war on those rulings in the lower courts.
"They want to make (them) mean essentially nothing," he said. "That it's no protection at all of those (Second Amendment) rights."
But gun control groups argue that local law enforcement has a right to restrict concealed carry of weapons to protect public safety. Major California law enforcement organizations have backed gun control groups in the case.
"The reality is that this completely affects the law throughout the state," said Mike McLively, attorney for the Law Center to Prevent Gun Violence.


Striking down such restrictions would be a sea change for most Bay Area counties, where sheriffs generally require applicants to show evidence their safety is at such great risk that it can only be addressed by giving them a permit to carry a gun.
State law generally discourages concealed weapons in public but leaves it to local authorities to regulate exceptions. By state law, requirements for concealed-carry permits include demonstrating "good moral character," taking a training course and establishing "good cause." Gun rights groups say those requirements arbitrarily result in gun owners being denied permits.
Harris, however, argued that imposing strict limits is constitutional, telling the court they "do not burden the core Second Amendment right to use arms in defense of hearth and home."
Three other federal appeals courts have already upheld such regulations, making it unclear whether the Supreme Court might get involved. Legal experts say the high court is reluctant to take on new gun rights cases, citing the justices' refusal last week to hear a hotly contested challenge to a San Francisco gun control law.
But if there is anything the two sides in the debate agree on, it's that the Supreme Court might have no choice but to clarify its previous rulings, in 2008 and 2010, finding a right to possess guns in the home for self-defense. And the Peruta case may be the right legal vehicle.
"After (those decisions), one of the big questions is does the Second Amendment apply outside the home," said McLively. "Getting an answer to that question is important in terms of policy."