Dissent from Disappointing Decision by SCOTUS to Not Hear an Important 2A Case

Written by Alexander J. Segal on

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On June 26, 2017, the Supreme Court of the United States denied a petition for writ of certiorari (to hear on appeal) a case titled Peruta v. California, No. 16-894 (U.S. June 26, 2017). The issue in Peruta was whether the Second Amendment to the United States Constitution includes a general right for ordinary and law-abiding citizens to carry guns outside of the home for self-defense. In Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc) [PDF version], in a decision that now stands, the full United States Court of Appeals for the Ninth Circuit, held that the Second Amendment does not entitle such individuals to carry handguns outside of the home for self-defense. Interestingly, the en banc Ninth Circuit thereby reversed the original decision of a three-judge panel of the Ninth Circuit in Peruta v. County San Diego, 742 F.3d 1144 (9th Cir. 2014) [PDF version], which had held that the Second Amendment does include within its scope the guarantee of the right to carry handgun outside of the home for self-defense.

Justice Clarence Thomas filed an opinion dissenting from the denial of the petition to hear Peruta at the Supreme Court. He was joined in his dissent by Justice Neil Gorsuch. In this post, I will examine Justice Thomas's dissent before explaining why I agree with his reasoning. The dissent only numbers eight pages and it is well worth reading in full in addition to this post [see dissent].

Second Amendment

Dissent from Denial of Petition for Certiorari: Justice Thomas

Part I of Justice Thomas's dissent focused on the facts and procedural history of Peruta.

First, he explained that open carry of handguns is generally prohibited in California by sections 25850 and 26350 of the Cal. Penal Code Ann. However, the issue in Peruta was not California's restrictions on open carry, but rather its restrictions on concealed carry by average citizens in public for the purpose of self-defense. Under sections 26150 and 26155 of the Cal. Penal Code Ann., an individual must show “good cause,” among other criteria, in order to be licensed or permitted to carry a concealed handgun. Section 26160 authorizes individual counties to interpret the “good cause” provision.

The county where the petitioners in Peruta resided interpreted “good cause” narrowly. The sheriff's policy, for example, was that “concern for one's personal safety” was not sufficient for establishing “good cause.” 742 F.3d at 1148. An individual was instead required to show “a set of circumstances that distinguish the applicant from the mainstream and cause him to be placed in harm's way.” Id., at 1169. The result of the sheriff's policy was that the average citizen in San Diego County would be prohibited from obtaining a permit to carry a concealed handgun for self-defense. The sheriff's policy instead restricted the allocation of concealed carry permits to individuals whom he deemed distinguishable from the average person, or the “mainstream,” they having demonstrated a heightened risk of danger to his or her personal safety.

The petitioners in Peruta challenged certain aspects of California's statutory scheme and the particular sheriff's policy, arguing that they violated their Second Amendment right to bear arms. After San Diego County prevailed in District Court, a three-judge panel of the Ninth Circuit held that carrying an operable handgun outside of the home for self-defense falls within the scope of the Second Amendment. It held further that the sheriff's reading of the “good cause” provision in conjunction with other aspects of California's statutory scheme violated the Second Amendment requirement that California “permit some form of carry for self-defense outside the home.” Id. at 1172.

The en banc Ninth Circuit held that because the petitioners had challenged the sheriff's interpretation of “good cause,” the case before the court was limited only to that aspect of California's regulatory scheme. Accordingly, it declined to address whether the Second Amendment protects the right of members of the general public to carry firearms openly in public. 824 F.3d at 942. The en banc Ninth Circuit held that the Second Amendment neither preserves nor protects the right of members of the general public to carry concealed firearms in public. Id. at 924.

In Part II of the dissent, Justice Thomas argued that the Supreme Court erred in declining to grant certiorari in Peruta.

Justice Thomas argued that the approach of the en banc Ninth Circuit was “indefensible.” He criticized the Ninth Circuit for limiting its review to whether the Second Amendment protects only the right to open carry as opposed to a general right to public carry. In addition to describing the approach as “untenable,” Justice Thomas asserted that “it was not justified by the terms of the complaint,” which challenged California's statutory scheme more broadly. He added that both the District Court in Puerta v. County of San Diego, 758 F.Supp.2d 1106 (SD Cal. 2010) [PDF version], and the three-judge panel of the Ninth Circuit had correctly considered whether California's licensing scheme as a whole violated the Second Amendment in its effective prohibition of carrying a weapon for self-defense by responsible and law-abiding citizens.

Justice Thomas then took the position that “[h]ad the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result.” To this effect, Justice Thomas cited to the Supreme Court's landmark decision in District of Columbia v. Heller, 554 U.S. 570, 580 (2008)1 [PDF version], wherein the Court held that the Second Amendment protects the right of individuals to possess arms for lawful purposes, with one example being self-defense within the home. Justice Thomas — a member of the five-justice majority in Heller - stated that Heller suggested that the Second Amendment “protects the right to carry firearms in public in some fashion.” Justice Thomas cited to a dissenting opinion by Judge Thomas Hardiman2 in a Third Circuit case titled Drake v. Filko, 724 F.3d 426, 444 (3d Cir. 2013) (Hardiman, J., dissenting) [PDF version], in which Judge Hardiman took the position that reading Heller as only covering “bearing” arms in one's home was improper. Justice Thomas also cited to Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012) [PDF version], wherein the Seventh Circuit reached a similar conclusion to that of Judge Hardiman.

Justice Thomas agreed with Judge Hardiman and the Seventh Circuit that the relevant history of the Second Amendment supports the understanding that the Second Amendment's right to bear arms includes the right to bear arms in public in some manner. He cited to Nunn v. State, 1 Ga. 243 (1846), a decision relied upon the Court in Heller, as instructive on the proper meaning of the right to bear arms. In Nunn, the Georgia court struck down a ban on open carry while upholding a ban on concealed carry. Citing to State v. Reid, 1 Ala. 612, 616-617 (1840), Justice Thomas suggested that other cases from the era indicate that, while some restrictions on public carry are permissible, an effective ban on public carry is not.

Justice Thomas added that in Heller 554 U.S., at 599, the Court held that “self-defense” is “the central component” of the Second Amendment's right to bear arms. In his opinion, this core right of self-defense cannot be limited to the home, although it may be “most acute” in the home. Id., at 628.

Justice Thomas stated that even if a majority of the Supreme Court does not agree that the Second Amendment protects a right to public carry, the Court ought to answer the question definitively. He noted that twenty-six states had joined in asking the Court to resolve the question in Peruta. He added that four Courts of Appeals and three state courts of last result have addressed the issue, all the while reaching different conclusions. For these reasons, Justice Thomas saw no reason to wait for more lower court decisions on the issue, “especially when constitutional rights are at stake.”

Finally, Justice Thomas argued that the Court's decision was part of a “distressing trend” wherein the Court has treated the Second Amendment “as a disfavored right.” He argued that “the Constitution does not rank certain rights above others.” Justice Thomas referred to his dissent from denial of certiorari in Friedman v. Highland Park, 577 U.S. __, __ (2015) (Thomas, J., dissenting from denial of certiorari) (slip op., at 6) [PDF version], wherein he criticized the Court for declining to hear cases that “flout” the Court's decisions in Heller and McDonald while being willing “to summarily reverse courts that disregard our other constitutional decisions.” Justice Thomas accused the Court of “impos[ing] a hierarchy by selectively enforcing its preferred rights.” He added that since the Court had last addressed the Second Amendment in 2010 in McDonald, it has heard 35 cases where the question turned on the First Amendment and 25 cases where the question turned on the Fourth Amendment. He described the discrepancy as “inexcusable,” especially in light of the fact that the Court's jurisprudence on the Second Amendment is comparatively under-developed.

Conclusion

Justice Thomas concluded his dissent with the following passage:

“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent”

I agree in full with Justice Thomas's dissenting opinion from the Court's disappointing decision to again decline to hear an important Second Amendment case. Although the Court did not address the right to carry specifically in the controlling opinions in Heller and McDonald, Justice Thomas — who was in the majority in both occasions — is correct in noting that the Court has held that the central point of the “right to bear arms” is self-defense, citing to a substantial corpus of evidence to that effect. For lower courts, this should indicate strongly that jurisdictions are not permitted to effectively ban all types of carry to normal law-abiding citizens, reserving it only for those deemed worthy to exercise their constitutional rights by local authorities. Furthermore, Justice Thomas was correct in noting that, even if five justices do in fact agree with the Ninth Circuit, Peruta was ripe for consideration by the Supreme Court considering both that it involves a constitutional right and the fact that there is already a split among the lower courts of appeals on the issues presented.

In a final note, it was heartening to see Justice Gorsuch — who thus far has lived up to his billing as a terrific addition to the Supreme Court [see article] — join Justice Thomas in dissent. Justice Thomas and the late Justice Antonin Scalia — whose position at the Court Justice Gorsuch now fills — have been the staunchest defenders of the Second Amendment on the Court in recent years. This is one issue where it is very encouraging to see Justice Gorsuch step into Justice Scalia's shoes.

The Court will inevitably be forced to take a case involving the issues raised in Peruta. We can only hope that the Court decides to — as Justice Thomas implored — expeditiously begin to treat the Second Amendment with the same respect that it treats other constitutional provisions.

I look forward to blogging about other Second Amendment issues and litigation in the near future.

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  1. The Supreme Court subsequently extended its reading of the Second Amendment to the States in McDonald v. Chicago, 561 U.S. 742 (2010) [PDF version].
  2. In an interesting aside, recall that Judge Hardiman was reportedly one of the three judges under consideration by President Donald Trump for the vacant Supreme Court seat that was ultimately filled by Justice Neil Gorsuch [see blog].