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John J. Bastiat / Jun. 10, 2016

Another Second Amendment Clown Act by the Ninth Circus

"There is no Second Amendment right to carry concealed firearms."

“The great object of my fear is the federal judiciary. That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is ingulfing insidiously the special governments into the jaws of that which feeds them.” —Thomas Jefferson, letter to Judge Spencer Roane, 1821

A little over two years ago, we wrote about a surprisingly rational decision by the Ninth Circuit Court of Appeals, a.k.a. the “Ninth Circus” — so named for its consistently asinine decisions, especially those dealing with the U.S. Constitution and its interpretation. The title of our missive was “The Ninth Circus Gets One Right.” Except not so fast. The wheels of injustice are slow but steady over at the Ninth, and after wending its way through the system as a 2-1 Ninth Circuit panel “win” for the Second Amendment, the surprisingly rational decision was reversed by the en banc court (i.e., the full court). In revisiting Peruta v. City of San Diego, the Ninth ruled that “there is no Second Amendment right for members of the general public to carry concealed firearms in public.”

It’s a Supreme Court layup, if at this point a very dangerous one.

Under the court’s twisted line of reasoning, though a Second Amendment right to keep and bear arms does exist — as Supreme Court decisions District of Columbia v. Heller (2008) and McDonald v. Chicago (2010) definitively ruled — under California law, applicants for concealed-carry licenses must show “good cause” to state law enforcement officials to actually exercise that right by carrying a concealed firearm.

The court then issued one of the most mealy-mouthed sentences in the history of jurisprudence: “The Second Amendment may or may not protect, to some degree, a right of a member of the general public to carry firearms in public.” What? “May or may not”? “Some degree”? “Member of the general public”? “In public”?

Along those lines, let us just say that we may or may not, to some degree, understand anything the Ninth is trying to say. So let’s recap: 1) A right to keep and bear arms exists under the U.S. Constitution; but 2) That right doesn’t really exist in California. If it did, an utterly subjective “good cause” would not be necessary to exercise it.

As to the question of open-carriage of firearms, it should go without saying — at least in our minds — that if the Ninth is going to deny concealed carry (after all, who can meet the ever-exacting “good cause” standard?), despite SCOTUS having ruled a right to “keep and bear arms” indeed exists, then open-carry should be a-ok. Maybe, maybe not. To some degree. For some in the “general public.” Sure. Whatever.

Dissenting Judge Consuelo María Callahan noted, “[T]he defendant counties’ limited licensing of the right to carry concealed firearms is tantamount to a total ban on the right of an ordinary citizen to carry a firearm in public for self-defense. Thus, plaintiffs’ Second Amendment rights have been violated.” And that is exactly the effect this ruling would have if upheld by the Supreme Court.

Indeed, this sad tale of judicial wrongheadedness once again reminds us of how great the loss of Justice Antonin Scalia was, and how critical will be the election of the next president of the United States. A solid, centered Supreme Court is required to maintain constant vigilance against the stupidity of decisions like this one from the Ninth, which tends to have more than its fair share of such decisions. In any case, one thing is certain: If Hillary Clinton wins, she’ll appoint progressives to replace Justice Scalia and two or three more justices. And with that, we can all say goodbye to the Second Amendment as we know it.

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