Peruta v. San Diego, Richards v. County of Yolo — Amicus Brief

Michael Harless Constitutional Law, Firearms Law, U. S. Court of Appeals, Ninth Circuit

Today our firm filed a brief supporting the right to “bear” arms in California. A panel of the U.S. Court of Appeals for the Ninth Circuit previously handed down an opinion striking down San Diego County’s policy under which “self-defense” was not considered to be a “good cause” allowing the issuance of a concealed carry permit. Now, the Ninth Circuit decided to re-hear the case en banc. The Peruta case was consolidated with another case, Richards v. County of Yolo, which challenged Yolo County’s “good cause” policy. Our brief addressed issues in both cases.

California almost completely prevents ordinary persons from carrying firearms in public. Permits are issued by sheriffs or police chiefs under a discretionary “may issue” system, whereby local heads of law enforcement have great latitude to issue permits to the rich and politically powerful, but to deny them to ordinary Californians who want a firearm for self-defense. Although neither set of Plaintiffs challenged the entire “may issue” system, whereby the government gets to decide who may exercise their rights, both sets of Plaintiffs asked the Court to modify the current system.

We argued that the Second Amendment explains when and how it applies, and comes with its own standard of review – “shall not be infringed.” Here, the Plaintiffs are members of “the People,” their weapons are protected “arms,” and they wish to “bear” those arms for what the Supreme Court has confirmed is a “legitimate” and constitutional purpose – self defense. California’s permitting system clearly “infringes” on the exercise of that right. One district court judge even believed that even after she found the county procedure “infringed” the Second Amendment – a right that “shall not be infringed” – it could be sustained under a balancing test.

We also argued against the use of any judicial “balancing test,” or judicial evaluation of “burden” on gun owners, or judicial consideration of how important California thinks its law is – the plain text of the Second Amendment requires that the law be struck down.

Our brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Inc., Policy Analysis Center, Institute on the Constitution, and Conservative Legal Defense and Education Fund.

Link to brief