Tick, Tick, Tick

What’s that ticking sound?  It’s the clock on restrictive gun control—at least in its most absurd forms—ticking away the time that it has left.  I’ve tried very hard not to get too overly optimistic, even after D.C. v. Heller (2008), but some of what is happening in the courts just leaves me utterly thrilled.

The case that has me giddy with excitement is Peruta v. County of San Diego, currently under way in federal court in California.  For those of you who are fortunate enough to live in most of the United States, let me explain that in California, if you apply for a concealed weapon permit, even if you have a completely spotless history, and good reason to carry a gun, there is no requirement that the sheriff issue you a permit.  The sheriff has nearly unlimited discretion as to whether to issue you a permit—and generally, if you live in one of the California counties where carrying a gun for self-defense might be a good idea, there is little chance that you will get a permit.

You have no idea how good it feels to have to explain this to my readers—some of whom will find this startling.  As recently as 1987, California’s situation was also the situation in every state except Washington and Vermont.  We, as gun rights activists, changed this absurdity in most of America, almost entirely by lobbying our legislators.  But California, like New York, Maryland, and a few other benighted states, is still stuck with a law originally passed as part of a package to disarm Chinese and “our people who are of Latin descent.”1

Unfortunately, California is one of those states where the legislature (and unfortunately, much of the population) is fiercely antigun.  The chances of success through the legislative process are slim.  To fix California’s concealed weapon permit law requires a lawsuit—and most importantly, requires the courts to recognize that the Second Amendment applies to the states.  

We’re still waiting on the U.S. Supreme Court to hear and decide McDonald v. Chicago, which we expect will result in the Court ruling that the Second Amendment applies to the states, and at least guarantees that you have a right to have a handgun in your home for self-defense.  But in the meantime, there are federal judges who are not waiting around—they see the strength of our arguments.

Edward Peruta maintains a residence in San Diego County, but spends quite a bit of time traveling the country in a motorhome, taking photographs as a freelance journalist.  Because he was often traveling in remote areas of California with valuable photographic equipment, he applied to the San Diego County Sheriff for a concealed weapon permit—and was turned down.  Peruta filed suit, alleging that his civil rights were violated, and asking a federal judge to rule that under the Second Amendment, he had a right to bear arms for self-defense.

Let me explain: well before a case like this gets decided, there will be a variety of motions filed by both sides.  In this case, the Sheriff filed a motion arguing that Peruta’s case was so defective that it should simply be dismissed—that there was no legal basis for his claim.  Judge Irma Gonzalez looked at the arguments—and decided that there was actually sufficient basis for a suit to allow it to go forward.  Her reasoning on why should make all gun owners quite thrilled.

First of all, she acknowledged what everyone now knows: the Second Amendment protects an individual right to keep and bear arms.  She also acknowledged that while the Heller decision had only addressed the question of having a handgun in your home, that other decisions of the courts have recognized that the Second Amendment includes a right to bear arms as well.  Most crucially, she acknowledged that because California prohibits open carry of loaded firearms in cities, the state’s authority to regulate concealed carry is subject to judicial review.  If California allowed open carry, the government might be free to prohibit concealed carry, or use very restrictive licensing of it.  But having prohibited open carry of loaded firearms, there are constitutional issues at play when they strictly regulate concealed carry as well.

As some of my previous columns have pointed out, there are “standards of review” used by the courts to decide at what point a government’s legitimate regulatory powers become less important than an individual’s rights.  I don’t think very highly of the whole “standards of review” theory that the federal courts largely invented in the 1960s; if there is a right to do something, then this whole “balancing of interests” claim just becomes an excuse for judges to play games.

Still, at the higher standards of review, the government must demonstrate that they have a really good reason for regulating or infringing on an individual right.  It isn’t enough to say, “Because we like it.”  Judge Gonzalez’s argument is that one of the higher standards of review applies.  She takes the position that the Fourteenth Amendment’s Equal Protection Clause requires that “”no State shall deny to any person within its jurisdiction the equal protection of the laws, which is ‘essentially a direction that all persons similarly situated should be treated alike.’… The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest…. This general rule gives way, however, where a statute classifies by race, alienage, or national origin, or impinges on personal rights protected by the Constitution.”  She argues that a law limiting an individual right—such as the right to carry a gun for self-defense—is subject to a demanding standard, one that requires a “compelling state interest.”2

That may not sound like much to you—but to those of us who follow constitutional law, it’s music to our ears.   “Compelling state interest” is a very high standard.  The government needs to demonstrate not just that this very strict regulation of concealed weapon permits is necessary for public safety, but it also implies that there is no less restrictive method of achieving that “compelling state interest.”  In practice, California will have to demonstrate that its restrictive licensing scheme is necessary for public safety—and the great success of the looser regulation common in the rest of America pretty well blows out that argument.

To paraphrase Winston Churchill’s remarks about the Battle of Britain: “This is not the end. This is not even the beginning of the end. But it is assuredly the end of the beginning.”


Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007), is available in bookstores.  His web site is http://www.claytoncramer.com.

1 “New Firearms Law Effective on August 7,” San Francisco Chronicle, July 15, 1923, p. 3.

2 Peruta v. County of San Diego, 09-CV-2371 - IEG (BLM) (S.D.Cal. 2010).