In preparation for my lawsuit as part of my exposé on gun rights in NYC (Part I, Part II), I’ve been watching Peruta v. San Diego. The reason is that the federal courts of appeals, divided into 13 circuits that each have jurisdiction over a different chunk of the United States, have been struggling to determine to what extent the Second Amendment (“…the right of the People to keep and bear arms…”) guarantees the right to not just keep (own guns in your home), as the Supreme Court made clear is covered by the Second Amendment in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010), but the right to bear arms — that is, the right to carry them around with you.
Here in New York, the 2nd Circuit Court of Appeals has ruled that to whatever extent the Second Amendment gives us the right to bear arms, that right is not “fundamental” and is therefore subject to any restriction that furthers a government interest, subsequently concluding that a state may restrict the right to bear arms to those who show a “good reason” to carry them. Kachalsky v. Cacace, 701 F.3d 81 (2nd Cir. 2012).
However, in the 7th Circuit Court of Appeals, legendary judge Richard Posner wrote the majority opinion invalidating an Illinois statute that required a “good reason.” Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). And, judges in several other circuits have suggested, without ruling, that they would lean the same.
Peruta was another court upholding the right to bear arms, the 9th Circuit Court of Appeals. But, after a 3-judge panel upheld that right, the other judges in the court voted to rehear it en banc — in front of 11 judges — and last month overturned the 3-judge panel and allowed California to require a “good reason” before issuing a carry license.
The biggest problem with Peruta is that the judges, in their 190 page (!!) opinion entirely side-stepped the question. You see, courts have been fairly consistent in ruling that a state may restrict open-carry, or restrict concealed carry, but they have not typically allowed a state to restrict both. In other words, the general rule, save for the Kachalsky aberration in the 2nd Circuit, was that a state must guarantee your right to bear arms, but can tell you whether you must conceal your handgun or make it visible. And so, the Peruta en banc court once again said that a state may ban concealed carry without deciding whether it may simultaneously ban open carry. The attorneys in Peruta clearly argued the point that they are seeking the right to bear arms (either open or concealed), and felt compelled to spend 190 pages without ruling on that point. (Peruta’s attorneys have moved the court to re-hear arguments and consider the true question, a motion likely to be declined.)
In fairness, of those 190 pages, many of them are written by 4 judges of the 11 that dissented from the majority opinion, and given the split in this case, plus the circuit split (2nd & 9th Circuits vs. 7th Circuit), the Supreme Court may hear it (and Peruta’s lawyers almost certainly will ask them to). I have to ponder whether I want to file my case in New York before that happens or right now. I shall give it some thought.