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.

PERB Approves Demand for Fact Finding Over Gun Policy

In 2016, the Ventura County Professional Peace OfficersAssociation (“Association”) and the County of Ventura began negotiating a Firearm Manual. In January of 2017, an impasse was declared over negotiations regarding a specific chapter covering the conduct of armed probation officers.

In February of 2017, the Association filed a request for factfinding with the Public Employees Relations Board (“PERB”). The request was made pursuant to Section 3505.4 of the Meyers-Milias-Brown Act (“MMBA”), as well as, PERB Regulation 32802.

Ventura County objected to the factfinding request. It argued that the policy at issue in the Firearm Manual addressed the use of force by sworn staff. According to the County, matters concerning use of force are not within the scope of representation and therefore not subject to factfinding under the MMBA.  The Association responded that because the Firearm Manual involves the use of deadly force standard applicable in the discharge of a firearm, it is a matter of employee safety and therefore within the scope of representation.

PERB’s Office of the General Counsel issued an administrative determination approving the Association’s request for factfinding. It held that it was not required to determine whether a matter is within the scope of representation before approving a factfinding request. Since the Office of the General Counsel’s role is limited to determining whether the conditions of MMBA section 3505.4 and PERB Regulation 32802 have been met, it was not empowered to determine whether the dispute or difference subject to factfinding is a matter within the scope of representation. As a result, it approved the Association’s request that the parties’ bargaining dispute be submitted to a factfinding panel.

The County appealed this administrative determination.  According to the County, the Office of the General Counsel should have first assessed whether the matter submitted to the factfinding was a matter within the scope of representation.

In ruling against the County, PERB noted that although factfinding is ultimately required only for disputes over matters within the scope of representation, the Office of General Counsel is not required in every case to make a definite determination to that effect before approving a factfinding request. Such a process is unwieldy and generally inconsistent with the time-sensitive nature of the factfinding process.

According to PERB, the principal purpose of factfinding is to assist the parties in reaching a voluntary and prompt resolution to their dispute through intervention of a neutral. To require a preliminary determination as to whether a matter is within the scope of representation before approving a factfinding request “would encourage both delay and gamesmanship, thus defeating the principal purpose of factfinding.”

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.

ATF Issues Open Letter on Firearms and Medicinal Marijuana

The federal Bureau of Alcohol, Tobacco, Firearms and Explosives issued an open letter to "All Federal Firearms Licensees" outlining the relationship between federal firearms regulations and state marijuana laws.  The letter explains federal law codified at 18 U.S.C. § 922(g)(3) prohibits unlawful users of controlled substances from possessing firearms or ammunition.  Federal law also makes it unlawful to sell firearms or ammunition to someone about whom there is reasonable cause to believe uses or possesses controlled substances, such as marijuana.  Therefore, the letter concludes, it is unlawful under federal law for medicinal marijuana card holders to buy or possess firearms or ammunition, regardless of a particular state's laws.