9th Circuit to reconsider concealed handgun issue

After ruling a year ago that the way two California counties determine who may carry a concealed handgun is unconstitutional, a federal appeals court has decided to take another look at the issue.

In challenges to laws and practices governing concealed-handgun permits in Yolo and San Diego counties, a split three-judge panel of the 9th U.S. Circuit Court of Appeals struck down local ordinances as so restrictive they violate a right to self-defense under the Second Amendment.

Yolo’s law and policy, much like San Diego’s and other California counties, requires law-abiding applicants for permits to show they face “credible threats of violence,” or that they carry large amounts of cash and need enhanced protection. The ordinances require a person to show “good cause” to obtain a permit, and not merely a desire to protect oneself, and they leave the decision up to local law enforcement agencies.

The two-judge majority of the appellate panel found that Yolo’s system “impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.” The San Diego finding by the same panel is essentially the same.

Judge Diarmuid F. O’Scannlain, who authored the 77-page majority opinion in the San Diego case, wrote that the right to bear arms “includes the right to carry an operable firearm outside the home.” The risk of armed confrontation “is not limited to the home.” He was joined by Judge Consuelo M. Callahan.

But, on Thursday, the circuit revealed that a majority of its 29 judges have voted to have an enlarged panel reconsider the issue, automatically preventing last year’s orders from taking effect.

A second round of oral arguments has been set in the two cases before an 11-judge panel during the week of June 15 in San Francisco.

The 2014 decisions were met with loud public outcries and calls for reconsideration by gun-control advocates and law enforcement agencies, including state Attorney General Kamala Harris. She is leading the charge for reversal of last year’s actions and has sought to intervene in the cases, arguing that local law enforcement officials must be allowed to decide who can carry a concealed weapon in their jurisdictions.

In addition, the 2-1 opinions by the panel were roundly criticized by its minority member, Judge Sidney R. Thomas, who has since been elevated to chief judge of the circuit. In a stinging dissent in the San Diego case, Thomas stated the county’s “good cause” policy, which mirrors Yolo’s, falls squarely within the U.S. Supreme Court’s definition of a regulatory measure that must be presumed to be lawful.

In the Yolo ruling, which came three weeks later, Thomas said that, absent the precedent set by the San Diego opinion, he “would hold that Yolo County’s ‘good cause’ requirement is constitutional because carrying concealed weapons in public is not conduct protected by the Second Amendment.”

The U.S. Supreme Court ruled in 2008 that the Second Amendment’s guarantee of a right to bear arms includes a right to keep a handgun in the home for self-defense, but the high court has not decided how the amendment applies outside the home.

A federal appeals court has said Illinois’ strict law on concealed weapons violates the Second Amendment, but federal appeals courts in New York, New Jersey and Maryland have upheld laws similar to those challenged in the California cases.

This story was originally published March 27, 2015 at 7:26 PM with the headline "9th Circuit to reconsider concealed handgun issue."