And a State’s misunderstanding. Fortunately, the Ninth Circuit, that bastion of conservatism, corrected the State’s misapprehension and struck its law regarding a man’s right to carry a firearm outside his home. The Ninth’s dissenter, though, is illuminating, and worrisome.
The situation is this. California is a “may issue” state, meaning that local authorities are allowed to use their discretion in deciding whether to issue a concealed carry permit or license that would authorize a California citizen to carry a firearm outside his home. California is even more restrictive in that “may issue” bit, though; it requires its citizens to satisfy those local authorities that the supplicant applicant has “good cause” for being permitted. That’s the State’s misunderstanding, corrected by the Ninth.
San Diego County residents, including the six plaintiffs in this case, were forced to sue for their licenses because the sheriff’s department, the “local authority” here, routinely—universally—denied licenses because the sheriff could never be satisfied that “good cause” existed. The case made its way to the Ninth with the above victory for the plaintiffs. The majority opinion held, in part, that
One of Heller’s most important lessons is that the Second Amendment “codif[ies] a pre-existing right….”
…a law that destroys (rather than merely burdens) a right central to the Second Amendment must be struck down.
And [citations generally omitted, emphasis in the original]:
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. 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. See Heller (“The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”).
And [citation omitted, emphasis in the original]:
But the fact that a small group of people [e.g., retired cops, and others suggested in the opinion] have the ability to exercise their right to bear arms does not end our inquiry. Because the Second Amendment “confer[s] an individual right to keep and bear arms,” we must assess whether the California scheme deprives any individual of his constitutional rights. Thus, the question is not whether the California scheme (in light of San Diego County’s policy) allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding “no.”
Certainly, reasonable men can disagree about the degree of burden that’s appropriate (demonstrating a reasonable proficiency with firearms, akin to demonstrating a reasonable proficiency with cars as a prerequisite to being issued a driver’s license, for instance; at the other end of the scale, four states have no licensing requirements at all), but clearly that burden cannot become a barrier, as the appellate court acknowledged.
This is where the dissenter’s misunderstanding comes in. Judge Sidney Thomas argued this:
The Supreme Court has instructed that the core of the Second Amendment is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller…. Carrying concealed weapons in public by definition does not inherently involve defense of hearth and home, so the core of the Second Amendment is not implicated.
But this is a misreading of the Supremes’ opinion as well as of the 2nd Amendment itself. What the Supreme Court said, more fully, in that cite is this:
And whatever else it [the 2nd Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
Plainly, “defense of hearth and home” was offered as an example of what is protected by the 2nd, not an enumeration of the total reach of it. Beyond that, this is the 2nd Amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Not only is “defense of hearth and home” not numbered here, it cannot be: limiting the security of a free State to defense of points of property prevents on its face the ability to see to the security of the State: those arms must be borne where the threats exist (including preemptively)—by the citizens acting individually, as is the duty of every citizen in a free State, as well as collectively through a militia (or today’s professional armed forces)—for when the threat reaches a domicile’s doorstep, the State’s security already is lost.
But the right to “keep and bear Arms” is an individual right, as well as the collective right of the individuals’ militia, as the Supreme Court also has acknowledged, and for much the same reason. If the individual citizen cannot “keep and bear Arms” nearly anywhere he may choose to go, then he cannot see to his own security (not only his own defense). And if the individual is not secure, then the aggregation of them that is a “free State” cannot be secure.
But the matter goes beyond even that. What is “security?” It’s far more than merely self-defense. Pedantically, the first definition of “security” in Johnson’s Dictionary, contemporaneous with the writing and ratification—by the people of the United States—of our Constitution, is “freedom from fear.” We have to go all the way to the third definition (of five) to get to “Protection; defence [sic].”
And it is exactly that. Any infringement of this right, any limit a Court might presume to place on this Amendment, can only reduce that freedom from fear. Fear comes from many sources, not only from an immediate attack on one’s person. Fear also comes from limitations on individual responsibilities, it also comes from limitations on individual liberty, it also comes from sources only tenuously, if at all, related to politics or general society.
This makes the permissible purposes for carrying firearms very broad, indeed, deliberately vaguely put in the Amendment, and beyond the ability of government to prescribe; they are not limited to “hunting,” or to “personal defense,” or to…. For a government—any branch of it—to determine what permissible purposes may be is to enumerate what can only be a subset of the 2nd Amendment’s range of purposes, and that is a very dangerous determination.
Unfortunately, the Ninth’s majority judges also seem to misunderstand the reach of the 2nd Amendment, focusing as they do on the “purpose” of self-defense, but they got to the correct immediate decision, at least.