Giving no explanation, the U.S. Court of Appeals for the Ninth Circuit refused on Monday to assemble all 28 of its active judges for a new review of the constitutionality of California’s main gun-control laws. The high-stakes dispute is very likely to move on to the Supreme Court.
Lawyers for challengers to the state’s limits on carrying guns outside of the home have already given strong indications that they will press on with their challenge. Among other key arguments they are likely to make to the Supreme Court is that the Ninth Circuit Court’s view of the Second Amendment conflicts with rulings of other federal appeals courts.
In addition, they are expected to argue that, as matters now stand in the key California case, the Ninth Circuit Court majority in effect does not allow any carrying of guns outside of the home, because the restrictions are so tight.
California law generally bans the open carrying of guns, although it does allow some exceptions. It allows guns to be carried in public — loaded or unloaded — if concealed. However, a gun owner has to get a permit for concealed carrying in public, and, to do so, must show “good cause” to have that right and show “good moral character.”
Begun about eight years ago, the case that now bears the title of Peruta v. San Diego County (but now also includes s companion case from Yolo County) has already been decided by two trial courts, a three-judge panel of the Ninth Circuit Court, and by an 11-judge en banc court. (Although the Ninth Circuit typically limits en banc review to a bench of 11 judges, its rules also allow — in
“appropriate cases” — for full en banc rehearing. That means all 28 active judges, if none of them has to recuse. Sometimes called “super en banc,” this option is rarely allowed.)
In a 7-to-4 ruling on June 9, a regular en banc court ruled that the Second Amendment does not protect any right to carry a concealed gun in public. It traced that notion back to English history, and to early American history. While it said that it might be argued that the Second Amendment does protect a right to carry a gun openly in public, it declined to rule on that point, noting that the Supreme Court also has not yet settled that question.
Lawyers in both the San Diego and Yolo cases sought full en banc review, relying heavily on the4 argument that the regular en banc majority had decided an issue that it did not need to reach. While they were seeking easier access to licenses for concealed carrying of guns, all that they wanted the court to decide, they said, was that the Second Amendment protects a right to have a gun for self-defense in public, “in some manner.”
If that had been all that was decided, the en banc court could have left it to state and local officials to work out the best way to allow some form of public carrying, the challengers’ lawyers said.
The four dissenting judges argued, among other points, that the majority ruling amounted to a flat ban on any public carrying of guns, since open carrying is so limited under state law and the majority denied any right to carry a concealed gun in public.
The state of California was allowed to enter the case to defend its state laws, for two reasons: first, because the three-judge Ninth Circuit panel ruling in the San Diego case had put in doubt the entire state scheme of gun control, and, second, because the sheriff of San Diego County refused to remain involved in defending the licensing laws.
With the denial of super en banc review on Monday, the challengers have 90 days to ask the Supreme Court to review the case, although they also could ask for an extended deadline.
While the Supreme Court ruled in 2008 that the Second Amendment protects a personal right to have a gun, at least for self-defense in the home, it has refused repeatedly to review cases in which gun rights advocates have sought a ruling extending the right beyond the home. Some lower courts have ruled that there is such a right, while others have assumed that there is, without declaring that explicitly.