Peruta v. California

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THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
EDWARD PERUTA, ET AL. v. CALIFORNIA, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 16–894. Decided June 26, 2017
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
dissenting from the denial of certiorari.
The Second Amendment to the Constitution guarantees
that “the right of the people to keep and bear Arm[s] shall
not be infringed.” At issue in this case is whether that
guarantee protects the right to carry firearms in public for
self-defense. Neither party disputes that the issue is one
of national importance or that the courts of appeals have
already weighed in extensively. I would therefore grant
the petition for a writ of certiorari.
I
California generally prohibits the average citizen from
carrying a firearm in public spaces, either openly or con­
cealed. With a few limited exceptions, the State prohibits
open carry altogether. Cal. Penal Code Ann. §§25850,
26350 (West 2012). It proscribes concealed carry unless a
resident obtains a license by showing “good cause,” among
other criteria, §§26150, 26155, and it authorizes counties
to set rules for when an applicant has shown good cause,
§26160.
In the county where petitioners reside, the sheriff has
interpreted “good cause” to require an applicant to show
that he has a particularized need, substantiated by docu­
mentary evidence, to carry a firearm for self-defense. The
sheriff ’s policy specifies that “concern for one’s personal
safety” does not “alone” satisfy this requirement. Peruta
v. County of San Diego, 742 F.3d 1144, 1148 (CA9 2014)
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THOMAS, J., dissenting
(internal quotation marks omitted). Instead, an applicant
must show “a set of circumstances that distinguish the
applicant from the mainstream and cause him to be placed
in harm’s way.” Id., at 1169 (internal quotation marks
and alterations omitted). “[A] typical citizen fearing for
his personal safety—by definition—cannot distinguish
himself from the mainstream.” Ibid. (emphasis deleted;
internal quotation marks and alterations omitted). As a
result, ordinary, “law-abiding, responsible citizens,” Dis-
trict of Columbia v. Heller, 554 U.S. 570, 635 (2008), may
not obtain a permit for concealed carry of a firearm in
public spaces.
Petitioners are residents of San Diego County (plus an
association with numerous county residents as members)
who are unable to obtain a license for concealed carry due
to the county’s policy and, because the State generally
bans open carry, are thus unable to bear firearms in public
in any manner. They sued under Rev. Stat. §1979, 42
U.S. C. §1983, alleging that this near-total prohibition on
public carry violates their Second Amendment right to
bear arms. They requested declaratory and injunctive
relief to prevent the sheriff from denying licenses based on
his restrictive interpretation of “good cause,” as well as
other “relief as the Court deems just and proper.” First
Amended Complaint in No. 3:09–cv–02371, (SD Cal.)
¶¶149, 150, 152. The District Court granted respondents’
motion for summary judgment, and petitioners appealed
to the Ninth Circuit.
In a thorough opinion, a panel of the Ninth Circuit
reversed. 742 F.3d 1144. The panel examined the consti­
tutional text and this Court’s precedents, as well as histor­
ical sources from before the founding era through the end
of the 19th century. Id., at 1150–1166. Based on these
sources, the court concluded that “the carrying of an oper­
able handgun outside the home for the lawful purpose of
self-defense . . . constitutes ‘bear[ing] Arms’ within the
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THOMAS, J., dissenting
meaning of the Second Amendment.” Id., at 1166. It thus
reversed the District Court and held that the sheriff ’s
interpretation of “good cause” in combination with the
other aspects of the State’s regime violated the Second
Amendment’s command that a State “permit some form of
carry for self-defense outside the home.” Id., at 1172.
The Ninth Circuit sua sponte granted rehearing en banc
and, by a divided court, reversed the panel decision. In
the en banc court’s view, because petitioners specifically
asked for the invalidation of the sheriff ’s “good cause”
interpretation, their legal challenge was limited to that
aspect of the applicable regulatory scheme. The court thus
declined to “answer the question of whether or to what
degree the Second Amendment might or might not protect
a right of a member of the general public to carry firearms
openly in public.” Peruta v. County of San Diego, 824
F.3d 919, 942 (2016). It instead held only that “the Sec­
ond Amendment does not preserve or protect a right of a
member of the general public to carry concealed firearms
in public.” Id., at 924 (emphasis added).
II
We should have granted certiorari in this case. The
approach taken by the en banc court is indefensible, and
the petition raises important questions that this Court
should address. I see no reason to await another case.
A
The en banc court’s decision to limit its review to
whether the Second Amendment protects the right to
concealed carry—as opposed to the more general right to
public carry—was untenable. Most fundamentally, it was
not justified by the terms of the complaint, which called
into question the State’s regulatory scheme as a whole.
See First Amended Complaint ¶63 (“Because California
does not permit the open carriage of loaded firearms,
4 PERUTA v. CALIFORNIA
THOMAS, J., dissenting
concealed carriage with a [concealed carry] permit is the
only means by which an individual can bear arms in pub­
lic places”); id., ¶74 (“States may not completely ban the
carrying of handguns for self-defense”). And although the
complaint specified the remedy that intruded least on the
State’s overall regulatory regime—declaratory relief and
an injunction against the sheriff ’s restrictive interpreta­
tion of “good cause”—it also requested “[a]ny further relief
as the Court deems just and proper.” Id., ¶152.
Nor was the Ninth Circuit’s approach justified by the
history of this litigation. The District Court emphasized
that “the heart of the parties’ dispute” is whether the
Second Amendment protects “the right to carry a loaded
handgun in public, either openly or in a concealed man­
ner.” Peruta v. County of San Diego, 758 F. Supp. 2d 1106,
1109 (SD Cal. 2010). As the Ninth Circuit panel pointed
out, “[petitioners] argue that the San Diego County policy
in light of the California licensing scheme as a whole
violates the Second Amendment because it precludes a
responsible, law-abiding citizen from carrying a weapon in
public for the purpose of lawful self-defense in any man­
ner.” 742 F.3d, at 1171. The panel further observed that
although petitioners “focu[s]” their challenge on the “li­
censing scheme for concealed carry,” this is “for good
reason: acquiring such a license is the only practical ave­
nue by which [they] may come lawfully to carry a gun for
self-defense in San Diego County.” Ibid. Even the en banc
court acknowledged that petitioners “base their argument
on the entirety of California’s statutory scheme” and “do
not contend that there is a free-standing Second Amend­
ment right to carry concealed firearms.” 824 F.3d, at 927.
B
Had the en banc Ninth Circuit answered the question
actually at issue in this case, it likely would have been
compelled to reach the opposite result. This Court has
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THOMAS, J., dissenting
already suggested that the Second Amendment protects
the right to carry firearms in public in some fashion. As
we explained in Heller, to “bear arms” means to “ ‘wear,
bear, or carry upon the person or in the clothing or in a
pocket, for the purpose of being armed and ready for offen­
sive or defensive action in a case of conflict with another
person.’ ” 554 U.S., at 584 (quoting Muscarello v. United
States, 524 U.S. 125, 143 (1998) (GINSBURG, J., dissent­
ing); alterations and some internal quotation marks omit­
ted). The most natural reading of this definition encom­
passes public carry. I find it extremely improbable that
the Framers understood the Second Amendment to protect
little more than carrying a gun from the bedroom to the
kitchen. See Drake v. Filko, 724 F.3d 426, 444 (CA3
2013) (Hardiman, J., dissenting) (“To speak of ‘bearing’
arms solely within one’s home not only would conflate
‘bearing’ with ‘keeping,’ in derogation of the [Heller]
Court’s holding that the verbs codified distinct rights, but
also would be awkward usage given the meaning assigned
the terms by the Supreme Court”); Moore v. Madigan, 702
F.3d 933, 936 (CA7 2012) (similar).
The relevant history appears to support this under­
standing. The panel opinion below pointed to a wealth of
cases and secondary sources from England, the founding
era, the antebellum period, and Reconstruction, which
together strongly suggest that the right to bear arms
includes the right to bear arms in public in some manner.
See 742 F.3d, at 1153–1166 (canvassing the relevant
history in detail); Brief for National Rifle Association as
Amicus Curiae 6–16. For example, in Nunn v. State, 1 Ga.
243 (1846)—a decision the Heller Court discussed exten­
sively as illustrative of the proper understanding of the
right, 554 U.S., at 612—the Georgia Supreme Court
struck down a ban on open carry although it upheld a ban
on concealed carry. 1 Ga., at 251. Other cases similarly
suggest that, although some regulation of public carry is
6 PERUTA v. CALIFORNIA
THOMAS, J., dissenting
permissible, an effective ban on all forms of public carry is
not. See, e.g., State v. Reid, 1 Ala. 612, 616–617 (1840) (“A
statute which, under the pretence of regulating, amounts
to a destruction of the right, or which requires arms to be
so borne as to render them wholly useless for the purpose
of defence, would be clearly unconstitutional”).
Finally, the Second Amendment’s core purpose further
supports the conclusion that the right to bear arms ex­
tends to public carry. The Court in Heller emphasized
that “self-defense” is “the central component of the [Second
Amendment] right itself.” 554 U.S., at 599. This purpose
is not limited only to the home, even though the need for
self-defense may be “most acute” there. Id., at 628. “Self­
defense has to take place wherever the person happens to
be,” and in some circumstances a person may be more
vulnerable in a public place than in his own house. Vo­
lokh, Implementing the Right To Keep and Bear Arms for
Self-Defense: An Analytical Framework and a Research
Agenda, 56 UCLA L. Rev. 1443, 1515 (2009).
C
Even if other Members of the Court do not agree that
the Second Amendment likely protects a right to public
carry, the time has come for the Court to answer this
important question definitively. Twenty-six States have
asked us to resolve the question presented, see Brief for
Alabama et al. as Amici Curiae, and the lower courts have
fully vetted the issue. At least four other Courts of Ap­
peals and three state courts of last resort have decided
cases regarding the ability of States to regulate the public
carry of firearms. Those decisions (plus the one below)
have produced thorough opinions on both sides of the
issue. See Drake, 724 F.3d 426, cert. denied sub nom.
Drake v. Jerejian, 572 U. S. ___ (2014); 724 F.3d, at 440
(Hardiman, J., dissenting); Woollard v. Gallagher, 712
F.3d 865 (CA4), cert. denied, 571 U. S. ___ (2013); Ka-
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THOMAS, J., dissenting
chalsky v. County of Westchester, 701 F.3d 81 (CA2 2012),
cert. denied sub nom. Kachalsky v. Cacace, 569 U. S. ___
(2013); Madigan, 702 F.3d 933; id., at 943 (Williams, J.,
dissenting); Commonwealth v. Gouse, 461 Mass. 787, 800–
802, 965 N.E.2d 774, 785–786 (2012); Williams v. State,
417 Md. 479, 496, 10 A.3d 1167, 1177 (2011); Mack v.
United States, 6 A.3d 1224, 1236 (D. C. 2010). Hence, I do
not see much value in waiting for additional courts to
weigh in, especially when constitutional rights are at
stake.
The Court’s decision to deny certiorari in this case re­
flects a distressing trend: the treatment of the Second
Amendment as a disfavored right. See Friedman v. High-
land Park, 577 U. S. ___, ___ (2015) (THOMAS, J., dissent­
ing from denial of certiorari) (slip op., at 6) (“The Court’s
refusal to review a decision that flouts two of our Second
Amendment precedents stands in marked contrast to the
Court’s willingness to summarily reverse courts that
disregard our other constitutional decisions”); Jackson v.
City and County of San Francisco, 576 U. S. ___, ___
(2015) (same). The Constitution does not rank certain
rights above others, and I do not think this Court should
impose such a hierarchy by selectively enforcing its pre­
ferred rights. Id., at ___ (slip op., at 1) (“Second Amend­
ment rights are no less protected by our Constitution than
other rights enumerated in that document”). The Court
has not heard argument in a Second Amendment case in
over seven years—since March 2, 2010, in McDonald v.
Chicago, 561 U.S. 742. Since that time, we have heard
argument in, for example, roughly 35 cases where the
question presented turned on the meaning of the First
Amendment and 25 cases that turned on the meaning of
the Fourth Amendment. This discrepancy is inexcusable,
especially given how much less developed our jurispru­
dence is with respect to the Second Amendment as com­
pared to the First and Fourth Amendments.
8 PERUTA v. CALIFORNIA
THOMAS, J., dissenting
* * *
For those of us who work in marbled halls, guarded
constantly by a vigilant and dedicated police force, the
guarantees of the Second Amendment might seem anti­
quated and superfluous. But the Framers made a clear
choice: They reserved to all Americans the right to bear
arms for self-defense. I do not think we should stand by
idly while a State denies its citizens that right, particularly
when their very lives may depend on it. I respectfully
dissent.