The Latest Victory for the Second Amendment

In theory, the bold, frequent use of civil liberties tends to protect them. But it’s no guarantee. Both of these statements find support in the recent history of gun-related legislation in California.

It was 2010. I was on the phone with a journalist. He was looking for comments on some proposed legislation that had been in the news. An assemblywoman from San Diego, Lori Saldaña, wanted to do away with Californians’ little-known right to carry unloaded guns openly. “She says it’s dangerous, because a cop might shoot one of those guys with guns on their hips; what do you think about that?” He was asking me for a counter-argument.

At that time, the California legislature was considering Saldaña’s bill to ban the open carry of unloaded firearms. The attempted legislation had been prompted by outraged reactions in California to the nationwide open-carry movement.[1] In the two years or so before the proposed ban, advocates of gun rights in California had been organizing small marches and meetings where they would very carefully and very openly exercise a right that few people in California knew they had — the right to openly carry unloaded firearms. Picture a half dozen men and women at a Starbucks with holstered, empty semi-automatic pistols on one hip and holstered, full clips of ammunition on the other. California law (with exceptions that aren’t important here) went like this: concealed carry of any gun, loaded or not, is illegal without a permit, and open carry of loaded guns is illegal without a permit. In most counties of California, permits were very hard to get. You had to show “cause,” and cause seemed to be whatever the issuing authority thought it should be. That left only the rarely used right to carry unloaded guns in public openly, without a permit.

“That argument is ridiculous and illogical,” I said to the journalist. “Cops are supposed to know the law and enforce it, not shoot people who are doing nothing wrong or illegal. The solution is to change the cops, not to change the law. You don’t take away rights just because the police are surprised to see somebody exercising them.”

This was in response to arguments advanced to support Assemblywoman Lori Saldaña’s bill to prohibit open carry. That bill didn’t pass, but soon a similar bill, AB 144, was introduced. The author of that bill, Assemblyman Anthony Portantino, made similarly bad arguments in its favor. For example, in an interview with Reason.tv, he said, “Just because one person is comfortable with their weapon, doesn’t mean that that gives that person the right to infringe on the rights of other people who aren’t comfortable.”[2] Was that some kind of sophisticated argument about competing civil rights: the right to bear arms and the right to be comfortable? No. There is no constitutional right to be comfortable. The argument was, in fact, as stupid as it sounded. Portantino also made and, finding it very clever, frequently repeated, a classic straw-man argument, saying “you don’t need a handgun to order a cheeseburger,” as though gun-rights activists were complaining that they could only get fast-food service at gunpoint.

AB 144 passed and was signed into law. The right to open carry (unloaded) was gone.

Something similar happened in California in the 20th century. By the 1960s, in urban areas of California it was rare to see people carrying loaded firearms in public. At the time, they had a legal right to. The law didn’t change, but the culture did. The Black Panthers knew this when, in 1967, they marched on the California state capitol toting loaded rifles and shotguns. They were not committing a crime. Public reaction to that scene made it easy for the legislature to pass a law banning open carrying of loaded guns.

Some civil libertarians thought that what the Black Panthers did in the 1960s and what the open-carry advocates did just a few years ago were counterproductive, because they provoked anti-liberal legislation. I disagree, for a couple of reasons. First, a civil right is of little value if nobody uses it. Second, Edward Peruta v. County of San Diego.[3]

Edward Peruta applied to the San Diego sheriff for a permit to carry a concealed firearm. The sheriff denied his application. Peruta then (2009) filed a lawsuit against the County of San Diego. He lost at trial and appealed to the United States Court of Appeals for the Ninth Circuit. A panel of the Ninth Circuit found that San Diego’s process for granting and denying gun permits infringed the Second Amendment. The court’s summary of its opinion begins in this way: “The panel reversed the district court’s summary judgment and held that a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.” Wow. If anything, the body of the opinion went further.

My first reaction was astonishment. In California of all places. In the Ninth Circuit of all jurisdictions. Wow, again. Reading the case, I soon saw the connection between AB 144 and Peruta. The legislative history of AB 144 shows that the NRA and the California Rifle and Pistol Association were prescient. They registered this argument against the bill:

In most areas of California, CCW [concealed-carry weapon]permits are rarely issued, and are usually reserved for those with political clout and the wealthy elite. Because of this reality, "open carrying" is the only method available to the overwhelming majority of law-abiding individuals who wish to carry a firearm for self-defense. Accordingly, by banning the open carrying of even unloaded firearms, SB 144 effectively shuts the door on the ability of law-abiding Californians to carry a firearm for self-defense at all.[4]

The California legislature heard that argument and replied, “so what?” The bill was law when Peruta reached the appeals court.

I believe that if open carry were not banned, the Ninth Circuit would not have overturned San Diego’s permitting rules and procedures for concealed carry. The court’s reasoning is almost mathematical. It relies heavily on Heller,[5] a 2008 Supreme Court decision that, according to the Ninth Circuit, implies that “a law-abiding citizen’s ability to carry a gun outside the home for self-defense fell within the Second Amendment right to keep and bear arms for the purpose of self-defense.” Then the Peruta court repeatedly points out that California bans open carry and severely restricts concealed carry.

The math goes like this:

(A) Heller = the Supreme Court says that the Second Amendment means individuals (versus “militia”) have a right to carry firearms in public for self defense.

(B) San Diego’s implementation of California’s concealed-carry laws + California’s ban on open carry = a general prohibition on carrying firearms in public for self defense.

(A) + (B) = unconstitutional.

It’s an amazingly simple and far-reaching opinion. It will be reheard by the Ninth Circuit sitting en banc. It will reach the Supreme Court. But right now, it’s the law in California. The state must permit law-abiding citizens to carry firearms in public for self defense, either openly or concealed or both.