Since Heller and McDonald settled the issue of firearms in the home, dozens of cases have challenged state and local ordinances limiting firearms rights in other places. As the author of this brief article, I must admit my views are clearly in line with one side of this debate. The Second Amendment Foundation, one of my employers, has led many of the efforts on this issue. The mission of this piece is not to convince anyone of the public-policy merits of carrying firearms for self-defense. Rather, now is likely a good time for us to review where this issue stands in the various federal circuits to predict where litigation on this issue is likely to go.
In filing and promoting these challenges, gun-rights advocates have argued that, while the Second Amendment protects the “right to keep and bear arms,” the Supreme Court has addressed only the first portion, the “right to keep” arms. From the perspective of numerous firearms-civil-rights plaintiffs, the bearing of arms means the freedom to carry a firearm for any American who seeks to exercise this right and is not otherwise prohibited from possessing guns. Some cases in this realm have challenged outright bans on the carrying of arms, but most challenge discretionary licensing schemes that allow some, but not all, qualified applicants to be permitted to carry. The primary counterargument to those challenges has been that the carrying of firearms outside the home is not a right and, therefore, requirements for a special showing of “proper cause,” “justifiable need,” “good and substantial reason,” or some other discretionary hurdle before a license may be granted are not unconstitutional. As those cases stand now, the Second, Third, and Fourth Circuits have upheld discretionary-licensing schemes, while the Seventh and Ninth Circuits have struck out in the opposite direction, deciding that the Second Amendment secures the right to carry arms for self-defense outside the home and that all qualified Americans should be permitted to carry.
Discretionary-Licensing Schemes Upheld in Three Circuits
In the Second Circuit, Alan Kachalsky and a number of other plaintiffs filed an as-applied challenge to New York’s requirement that they demonstrate “proper cause” to obtain a “full-carry” handgun license. Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 89 (2d Cir. 2012) cert. denied, 133 S. Ct. 1806, 185 L. Ed. 2d 812 (U.S. 2013). Though the challenged law itself did not define proper cause, both case law and Westchester County’s practices made it clear that proper cause required “a special need for self-protection” and a need that is “distinguishable from that of the general community or of persons engaged in the same profession.”
The Second Circuit panel followed a two-step process that has become the pattern for many courts evaluating Second Amendment cases. Under this analysis, the court first asked if the challenged regulation implicated protected conduct. Looking to Heller and McDonald, the court acknowledged that the Second Amendment at least touches on the carrying of arms. However, it struggled with step two, selecting the proper level of means-end scrutiny to review the New York law. The court noted that Heller and McDonald did not explicitly settle whether the Second Amendment secures a right to carry guns outside the home: “What we do not know is the scope of that right beyond the home and the standards for determining when and how the right can be regulated by a government.“ Seizing upon this opening, the court held that the right to carry arms outside the home is less protected than within the home, where “Second Amendment guarantees are at their zenith.” For that reason, the court purported to apply intermediate scrutiny in its review of the statute.
In fact, the court applied a weaker standard of review, seemingly a hybrid of rational-basis review and intermediate scrutiny. The court acknowledged that intermediate scrutiny requires a regulation to be “substantially related to the achievement of an important governmental interest,” and noted that New York had an undisputedly important governmental interest in public safety. However, the court did not explain how the statute's requirement to demonstrate “proper cause” to obtain a “full-carry” handgun license was “substantially related” to the state's interest in public safety. It noted simply that “substantial deference to the predictive judgments of [the legislature]’ is warranted,” and that public-policy judgments fall under the legislature’s purview. Thus, the court essentially applied rational-basis review, considering whether the law was reasonably, rather than substantially, related to an important governmental interest.
The Fourth Circuit reached a similar conclusion, using similar reasoning in Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) cert. denied, 134 S. Ct. 422, 187 L. Ed. 2d 281 (U.S. 2013). Raymond Woollard filed suit, challenging Maryland’s “good-and-substantial-reason requirement for obtaining a handgun permit.” Citing Kachalsky, the Woollard court also acknowledged that the right to carry firearms is protected by the Second Amendment but then chose to apply the diet version of intermediate scrutiny in reviewing the challenged statute. Again, the “governmental objectives of protecting public safety and preventing crime” were found to be sufficient, and the remaining analysis focused on the fit between the regulation and those goals. In only a very slightly more robust examination than the Kachalsky court, the Fourth Circuit said the regulation fit the state's objectives, essentially because the police and state told them so.
The Third Circuit’s decision in Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) is most interesting as the reasoning outlined by the court appears unprecedented. Countless bloggers and pundits thought this was going to be the case the U.S. Supreme Court would take to resolve this issue. Nonetheless, just a few weeks ago, the Court denied certiorari after considering the case at three separate conferences. See Drake v. Jerejian, 2014 WL 117970 (U.S. Jan. 9, 2014) (No. 13–827).
The Third Circuit’s reasoning in Drake starts familiarly, but quickly becomes radically different from the other cases discussed here. The Third Circuit majority professed faith to the two-step test. However, unlike the other courts, it found that carrying arms for self-defense is “outside the scope of the Second Amendment’s guarantee.” The majority referred to a passage in Heller that presumes certain long-standing firearms prohibitions are constitutional and ended its analysis there. Purportedly following Heller, the court concluded that, because the state's discretionary-licensing scheme, including a requirement to show “proper cause” to obtain a “full-carry” handgun license, had been around for approximately 100 years, the laws were therefore presumptively constitutional. Leading Second Amendment attorney and counsel in Drake, Alan Gura, recently paraphrased the court’s holding as follows: “In other words, because the law is incompatible with the concept of a constitutional right, the constitutional right must not exist, for the law’s enactment proves that no such right was historically understood.” The court went even further, explaining that the law could not be unconstitutional, because legislators at the time of its writing did not have the benefit of Heller and McDonald to guide them in understanding the meaning of the Second Amendment.
It is likely this unprecedented legal reasoning that made many Second Amendment attorneys believe Drake had a strong chance of being the Supreme Court’s vessel to settle the carry issue.
Right to Carry Firearms in Public Recognized by Two Circuits
In contrast to the Second, Third, and Fourth Circuits, other federal circuit courts have been receptive to arguments that the Second Amendment secures a constitutional right to carry firearms. In 2012, just a few weeks after the Second Circuit decided Kachalsky, the Seventh Circuit reached a distinctively different conclusion concerning the right to carry firearms in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). Judge Posner authored the opinion in Moore, which consolidated two lower-court challenges to Illinois’ outright ban on carrying firearms outside the home. Judge Posner’s analysis focused on the fact that Illinois was the only state in the union to completely ban the carrying of firearms, with no permit process available.
Referring to the Second Circuit’s opinion in Kachalsky, the Seventh Circuit expressly rejected the “suggestion that the Second Amendment should have much greater scope inside the home than outside simply because other provisions of the Constitution have been held to make that distinction.” Instead, the court focused on law-abiding citizens’ need for self-protection, noting that it could arise as much within the home as outside it. Additionally, the Seventh Circuit was the first of the courts to look at empirical evidence. The court did not officially select any of the standard levels of constitutional scrutiny, but, finding that “the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law,” it implicitly concluded that Illinois' ban on carrying guns outside the home would be unconstitutional under any form of heightened review. Accordingly, the Seventh Circuit struck down Illinois’ prohibition and essentially forced Illinois to adopt a handgun-carry permitting scheme.
While the Seventh Circuit rejected an outright ban on carrying of arms in Moore, the Ninth Circuit’s recent carry decision in Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014), addressed a discretionary-licensing scheme that was similarly designed to those challenged in Kachalsky, Woollard, and Drake. However, the methodology and result in Peruta were strikingly different than in those cases. California’s carry licensing scheme defers to local governments to define “good cause” for issuing a license. In San Diego’s case, there was no bright-line rule, but the sheriff’s internal licensing policy and practice made clear that merely seeking to protect “one's personal safety alone is not considered good cause.”
Judge O’Scannlain’s opinion in Peruta started by following the same two-step analysis outlined above: first, looking to whether the challenged regulation implicates protected conduct, and second, determining the appropriate level of scrutiny for review. The similarities ended there. In examining whether the carrying of arms is an activity protected by the Second Amendment, the opinion jumped, head first, into an in-depth historical analysis that firearms-freedom advocates lauded and gun-control supporters decried. Judge O’Scannlain’s thorough analysis was not concerned with discussing modern political outcomes, or balancing interests, or assigning some particular tier of scrutiny to the case. Instead, as in Heller, the decision clarified that when a restriction equates to a complete ban on protected conduct, it cannot survive any level of scrutiny. The San Diego policy fit into that category as it prohibited members of the general public from getting a permit to carry firearms absent some showing of specific danger.
The opinion clarified that the court was “not holding that the Second Amendment requires the states to permit concealed carry. But the Second Amendment does require that the states permit some form of carry for self-defense outside the home.” Judge O’Scannlain admonished other courts to follow the precedent laid out by the Supreme Court in Heller and McDonald and avoid relegating the Second Amendment right to second-class status among its peers in the Bill of Rights.
Interestingly, in the face of the Peruta opinion, San Diego County decided not to appeal the matter or seek en banc review. In the weeks after the opinion was issued, the State of California moved to intervene in the case and sought en banc review. The case remains pending as of early May 2014. The Peruta decision in February 2014 was followed by similar results in other Ninth Circuit challenges to similar laws and policies in Yolo County, California (Richards v. Prieto, 11-16255, 2014 WL 843532 (9th Cir. Mar. 5, 2014)) and in Hawaii (Baker v. Kealoha, 12-16258, 2014 WL 1087765 (9th Cir. Mar. 20, 2014)). In both of these cases, the actual defendants are seeking en banc review. As a result, it appears likely that, even if Peruta is not reheard en banc because San Diego has essentially withdrawn from the matter, the Ninth Circuit will be able to reexamine the issue en banc if it so chooses.
The only way to conclude discussion of this issue is to acknowledge that the debate has not been settled. The Supreme Court may address the carrying of arms in the coming years with Peruta or Richards, or with one of the many other cases that are percolating through the courts. Until then, whether the Second Amendment protects the right of individuals to carry handguns for self-defense or if discretionary-licensing schemes and bans may limit this practice to only a select handful of people who have “cause” to do so, will remain a hotly debated and litigated question.
Keywords: civil rights litigation, Second Amendment, gun control, gun rights, firearms, right to bear arms
Miko Tempski is an attorney with Tempski Law Firm, P.S., in Bellevue, Washington. He is also the chair of the Second Amendment Litigation Subcommittee of the Section of Litigaiton Civil Rights Committee, and is general counsel with the Second Amendment Foundation.