Sep 25, 2014 –
Millions more Americans will have the right to drive and walk around U.S. cities with hidden, loaded guns if freelance videographer Edward Peruta wins his fight to carry one on assignment.
The sheriff in San Diego rejected Peruta’s application for a permit to take his Colt 1911 .45 caliber pistol while traveling with cash and expensive equipment in high-crime California neighborhoods. He sued, and a three-judge panel of a federal appeals court ruled in February that any responsible, law-abiding citizen is entitled under the U.S. Constitution’s Second Amendment to possess a concealed firearm in public for self defense.
If the ruling stands after further review by the full court, it may put the scope of the right to bear arms back in front of the U.S. Supreme Court, six years after the justices struck down a District of Columbia law that banned handguns in the home.
Since that landmark decision, state and local government efforts to regulate gun possession have largely survived legal attack by gun-rights advocates. A victory for Peruta at the high court could reverse that trend and be used to attack strict public-carry laws in New York City, Boston, Baltimore and Washington. That would expand the number of people with concealed guns on city streets to as much as 5 percent, according to Adam Winkler, a law professor at the University of California at Los Angeles.
“It would mean that the discretionary permitting process in many major cities would be invalidated,” Winkler said. “You’re absolutely talking about millions more people having permits to carry guns.”
To the National Rifle Association, which is supporting Peruta’s case, more people packing pistols, revolvers and other sidearms may mean the difference between life and death. With 1.9 million of California’s 38 million residents armed, criminals would be deterred in the most populous state because they wouldn’t know who’s carrying a gun, said Chuck Michel, Peruta’s lawyer and the NRA’s West Coast counsel.
“No one is going duck hunting when 5 percent of the ducks might shoot back,” he said in an interview.
Gun control advocates say that math is dangerous, because without stringent permitting, the odds go up that guns will fall into the wrong hands.
“The more guns you have in public spaces, the more likely you are to have altercations between people that become deadly,” Mike McLively, a lawyer at the Law Center to Prevent Gun Violence, said in an interview.
While there’s plenty of debate about the causes and cures for gun violence, the U.S. murder rate dipped to a historic low last year while the number of concealed weapons permits nationwide soared to an all-time high.
There are now more than 11 million permit holders in the U.S., and the growth has accelerated with almost 1.5 million new permits issued in the past year, according to a July report by the Crime Prevention Research Center.
McLively credits the surge in permits to a concerted gun lobby push at statehouses across the country to radically weaken restrictions on concealed weapons over the past 30 years. In 1981, 19 states prohibited the carrying of concealed weapons. Now, all states allow the practice with varying degrees of regulation.
California is among about 10 states, including New York, Massachusetts, New Jersey and Maryland, that give local law enforcement agencies discretion to grant or deny concealed weapon permits, typically based on whether a person can show good cause to be armed. These are known as “may-issue” states.
Most other states hand out permits to anyone who meets minimum qualifications, including criminal and mental health background checks. Some states also require safety training. A handful, including Arizona, Alaska and Vermont, require no permit at all.
Deregulation has been good for the firearms industry, said Andrea James, a Minneapolis-based analyst for Dougherty & Co., who tracks gun manufacturers. Urban residents and women in particular are driving the trend as public perception about carrying guns has changed and females seek firearms for personal protection and as a measure of equality, she said.
“You’ve seen an explosion in the last few years of people wanting to carry for personal protection,” James said. “It’s absolutely a favorable trend for the firearms industry to have more concealed carry permit holders.”
The growing popularity of toting guns in public has prompted companies such as Target Corp. and Starbucks Corp. to ask customers not to bring weapons into their stores after some did, legally, in states that allow guns to be carried openly. How far states can go to restrict open carrying of guns remains an unsettled area of the law. Under the ruling in Peruta’s case, states must allow either concealed or open carry.
Illinois was the last state to end a complete ban on carrying a weapon in public after the U.S. Court of Appeals in Chicago ruled in 2012 that the law infringed on Second Amendment rights. Washington was the last city in the U.S. to to be forced to give up its prohibition when a federal judge in July declared the ban unconstitutional, citing the Peruta case.
Under a court-imposed deadline, the city this week adopted a new law modeled on those in New York and other states with “may-issue” permit systems.
Whether Washington’s new law can survive another court challenge depends on which side, gun rights or gun control, ultimately wins the constitutional battle over public-carry laws.
The Supreme Court has rarely waded into Second Amendment disputes, the 2008 case being the first in 70 years. In that ruling, the court in a 5-4 vote said for the first time that the Constitution protects individual gun rights, even if a person isn’t affiliated with a state-run militia. In a 2010 decision that expanded on that one, the court ruled 5-4 that states and cities are bound by the Second Amendment, as well as the federal government. Both cases involved handgun possession in the home, not in public.
Michel said it was his idea to flag Peruta’s 2009 lawsuit to the NRA as worthy of the organization’s institutional support because of its potential to reach the Supreme Court.
Peruta declined through Michel to comment on the case.
Peruta, a former police officer, now lives and works in Connecticut as an investigator for an attorney who handles firearm-related civil and criminal cases. On YouTube videos, he describes himself as an NRA instructor, a holder of gun permits in three states and the director of Connecticut Carry, a group dedicated to educating citizens, lawmakers and law enforcement officials about gun rights.
When Peruta applied for a concealed weapons permit in San Diego County, he said he and wife travel the country in a motor home carrying large sums of cash, valuables and equipment, making them a “target for violent crimes,” according to a court filing. He also makes videos for his own news service, American News and Information Services Inc., including one in which he argues with police at a Hartford, Connecticut, crime scene over whether he can film a dead body.
Peruta’s central claim was that San Diego County Sheriff William Gore overstepped his authority when he concluded Peruta didn’t demonstrate “good cause” to carry a concealed weapon. Gore rarely granted permits to anyone, Peruta said in his complaint.
“Simply fearing for one’s personal safety alone without documentation of a specific threat is not considered good cause,” Gore argued to a federal trial judge who agreed with him.
A divided three-judge panel of the U.S. Court of Appeals in San Francisco overruled the lower-court judge, concluding on Feb. 13 that Gore’s exercise of discretion trampled Peruta’s constitutional right to bear arms.
“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security, and where gun violence is a serious problem,” U.S. Circuit Judge Diarmuid O’Scannlain, a nominee of Republican President Ronald Reagan, wrote in the majority opinion. “That is perhaps debatable, but what is not debatable is that it is not the role of this court” to pronounce the Second Amendment “extinct.”
U.S. Circuit Judge Sidney Thomas, an appointee of Democratic President Bill Clinton, wrote in dissent that the majority’s decision “upends the entire California firearm regulatory scheme.”
After the San Diego sheriff declined to contest Peruta’s victory, California Attorney General Kamala Harris, a Democrat, stepped in to request a review of the decision by a larger panel of the appeals court’s judges. The court hasn’t said whether it will reconsider the case.
The San Francisco appeals court’s ruling is squarely at odds with those by appeals courts in New York, Philadelphia and Richmond, Virginia, that have upheld discretionary permitting.
Combined with the 2012 decision that voided the public-carry ban in Illinois, the Peruta ruling deepens a split among the regional appeals courts. That increases the likelihood that the Supreme Court will take up the issue to resolve the difference of opinion.
While the high court declined to take up challenges to the concealed weapon permitting systems in New York and New Jersey, lawyers on both sides of the debate say the Peruta case may be tempting for the justices because of the rigorous analysis undertaken by the San Francisco court.
“It’s important because it says we’ve looked at the documents, historical records, and that includes founding era documents and older cases, and concluded that the Second Amendment does apply outside the home,” McLively said.
Until the Peruta case is final, California will remain in limbo with a patchwork of policies that allow residents in some counties to get concealed weapons permits on demand while sheriffs elsewhere remain selective about handing them out.
Orange County Sheriff Sandra Hutchens saw a crush of new applications for “Peruta permits” and decided right away to adopt a less restrictive approach, said her spokesman, Lieutenant Jeff Hallock.
Orange County, the third biggest in California with 3 million residents, used to receive an average of 50 concealed-carry applications each month, according to Hallock. In the seven months since the appeals court ruling, the county has issued more than 1,000 new permits and is processing more than 4,000 applications, he said.
San Francisco County Sheriff Ross Mirkarimi said that until the Peruta litigation is over, he’ll continue to exercise his judgment about who gets permits to carry a concealed gun.
“I am not of the belief that more guns equals more safety,” Mirkarimi said. “When you think about the fact that more Americans have lost their lives to firearms than in all the wars in the last 50 years involving the United States, I think that helps set a foundation for us to at least apply a little discretion about how concealed-carry weapons permits are issued.”
Mirkarimi said he hasn’t issued a single permit to carry a concealed gun since he became sheriff in 2012, which will surely change if Peruta prevails. “Then we will be going, from what I can forecast, from drought to flood.”
The case is Peruta v. Gore, 10-56971, U.S. Court of Appeals for the Ninth Circuit (San Francisco).
To contact the reporter on this story: Joel Rosenblatt in San Francisco at firstname.lastname@example.org
To contact the editors responsible for this story: Michael Hytha at email@example.com Peter Blumberg