9th Circuit: 2nd Amendment Protects Right to Carry Firearms in Public For Self-Defense

In a recent appellate court decision, the 9th Circuit weighed in on how much the Second Amendment protects, or does not protect, carrying of firearms outside of the home.

In Young v. Hawaii, an individual challenged the constitutionality of a Hawai'i law requiring gun owners to keep their firearms at either their place of business or at home. The law provides an exception. Residents can apply to carry a firearm, either concealed or openly, with the local chief of police. However, the applicants must demonstrate a need to protect “person or property.”

George Young wished to carry a firearm publicly for self-defense. He applied twice with the County of Hawai'i’s Chief of Police. The Chief denied his application twice.  In fact, no one other than a security guard had ever been issued an open carry license. After his second application was denied, Mr. Young challenged the constitutionality of the law.

In a lengthy majority opinion, which examined the history and language of the Second Amendment, the Court held the Constitutional right to “bear arms” necessarily “implies some level of public carry in case of confrontation.” Accordingly, the Court ruled that the Hawaiian law unnecessarily restricts Mr. Young’s right to carry a firearm openly.

The Court specifically noted that restricting open carry to those who job entails protecting life and/or property restricts open carry to a “small and insulated” subset of law-abiding citizens. For that reason, the Court stated that the Hawai'i law “violated the core of the Second Amendment.”  

Currently, there is a split among several federal courts on these issues. Accordingly, this case may move forward to the Supreme Court.

Disability Retirement to Avoid Termination Qualifies as “Honorably Retired” for CCWs

A Riverside police officer who took disability retirement to avoid termination was “honorably retired,” according to the California Court of Appeal.  In Bonome v. City of Riverside, the court said the City must either grant the officer’s request for his retirement identification badge with a CCW endorsement, or provide a good cause hearing.

In June of 2012 an internal affairs investigation was opened with Officer Bonome as the subject officer.  On October 10, 2012 Officer Bonome suffered an on-duty back injury.  In May of 2013 the internal affairs investigation sustained allegations for failure to investigate and prepare a police report.  The Chief reviewed the report and declared his intention to terminate Officer Bonome.

The officer’s attorney was able to set out the Skelly hearing.  This allowed Officer Bonome to complete his application for industrial disability retirement.  The termination proceedings were suspended when the retirement became official.

Shortly after, the Assistant Chief sent notice to Officer Bonome’s attorney saying the Department would not issue a CCW endorsement.  Additionally, the Department would not offer a good cause hearing.  According to the Chief, Officer Bonome was not “honorably retired.”  The officer brought suit seeking to compel the Chief to issue the retirement badge with a CCW endorsement, or provide a good cause hearing.

The case centered on the correct definition of an honorably retired peace officer.  Penal Code §16690 says an honorably retired peace officer is any officer who has qualified for, and had accepted a service or disability retirement.  However, this does not include officers who agreed to a service retirement in lieu of termination.  According to the City, the Legislature must have meant to exclude all officers who retired to avoid termination.  The Court was not persuaded.

Officer Bonome argued, and the Court agreed, he was an honorably retired peace officer.  The statute only excludes peace officers who take a service retirement in lieu of termination.  According to the Court, an officer cannot choose to take a disability retirement to avoid termination.  Either an officer is disabled, and unable to perform his or her duties, or not.  Officer Bonome was evaluated after sustaining an on-duty injury to his back, and the evaluation recommended a disability retirement.  The Chief’s intent to terminate was irrelevant.

The Court noted, the City does not have to grant the CCW endorsement.  Penal Code §25920 says CCW permits for honorably retired officers can be denied or revoked.  However, to do this the City must show good cause as to why. 

Fourth Circuit Upholds Semi-Automatic Assault Weapons Ban

Recently, in Kolbe v. Hogan (2017) --- F.3d ---- , the 4th Circuit Court of Appeals upheld a Maryland law banning certain semi-automatic assault weapons and magazines in excess of ten rounds. The Court ruled that the 2nd Amendment did not apply to protect these weapons. The court decided they were, “weapons that are most useful in military service” as described in the United States Supreme Court decision of District of Columbia v. Heller (2008) 554 U.S. 570. The Court also ruled that even if the 2nd Amendment applied, the law would be constitutional. 

Maryland's law prohibits semi-automatic rifles with folding stocks, a grenade or flare launcher, or a flash suppressor. The law also prohibits rifles that utilize magazines that can hold more than ten rounds and rifles with a total length of less than 29 inches. The law also banned semi-automatic shotguns with a folding stock and shotguns with a revolving cylinder. 

Proponents of the law gave evidence regarding the history of the prohibited weapons as weapons designed for use by the military. The evidence paid special attention to the history of the AR-15. They also presented evidence which suggested that there is little difference in the automatic and semi-automatic versions of the banned weapons. This was the proponents' attempt to prove that the semi-automatic weapons can be more lethal in certain situations. 

Proponents of the law also argued that keeping magazines under ten rounds would aid victims in an active shooter situation. They reasoned that it would greatly increase the number of opportunities for victims to disable the shooter or escape. 

Those challenging the law argued that the prohibited weapons have a lawful use for self-defense, hunting and shooting competitions. The parties gave evidence that large capacity magazines are necessary for self-defense and the defense of loved ones. They argued that a person under the stress of an attack has a tendency to miss shots and tends to have difficulty reloading. Accordingly, challengers to the law argued that large capacity magazines are necessary for proper self-defense.  

Arguments were also made that the State did not have a legitimate purpose for the ban and were simply trying to ban specific weapons. Challengers pointed out that the law did not ban some semi-automatic weapons which could be modified to be similar to those banned by the law. They also pointed out that these weapons cause a small number of deaths each year. This was especially true when compared to yearly deaths caused by hand guns and other deadly weapons. 

Ultimately, in a split decision, the 4th Circuit sided with the proponents of the law. The Court found that the banned weapons and magazines were “weapons that are most useful in military service." The 4th Circuit held that such weapons are not protected by the 2nd Amendment under Heller. 

Additionally, the Court ruled that even if the 2nd Amendment applied, the law was constitutional. The court stated that this was because of the compelling state interests in public safety and the reduction of crime. 

Federal Judge Rules California's 10-Day Waiting Period for Gun Purchases Unconstitutional in Certain Cases

Today, a federal judge ruled California's 10-day waiting period is unconstitutional for gun owners who have already passed a background check and have a permit or certificate of eligibility to own a gun. This ruling applies to purchasers who own a gun and have already passed a background check, purchasers with concealed-carry permits, and purchasers who have a state certificate of eligibility to own a gun. First-time gun purchasers are still subject to the 10-day waiting period. Judge Anthony W. Ishii stated: "the Court emphasizes that it is expressing no opinion on the constitutionality of the 10-day waiting period in general or as applied to first time California firearms purchasers." The court ruled the waiting period burdens the right to keep and bear arms, and the reasons for the waiting period did not justify the burden in certain circumstances. Judge Ishii stayed his ruling for 180 days to allow California to change its laws. This case marks a significant victory for Second Amendment rights.

Judge Ishii's full opinion can be found here.

Ninth Circuit Strikes Down San Diego's CCW Policy

Today, in Peruta v. County of San Diego, the federal Court of Appeals for the Ninth Circuit struck down California's law about concealed weapons permits as a violation the the Second Amendment right to bear arms.  California law says a person has to have "good moral character," complete a training course, and have "good cause" to get CCW.  Sheriffs and police departments have their own policies about when to issue the permits.

This case was about San Diego's application of the law.  In San Diego, the sheriff's department required CCW applicants to "provide supporting documentation" to show good cause.  It also said being concerned about "one's personal safety alone is not considered good cause."  The court said this policy violates the Second Amendment.

The court found, "the right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense."  Accordingly, the court struck down San Diego's requirement that CCW applicants had to have more of a reason than self-defense.

The court stressed that its decision does not affect restrictions on carrying or possessing firearms by criminals or the mentally ill or in sensitive places, like schools.