# California's refusal to allow carry of firearms: Unconstitutional **URL:** \ **Category:** Great Debates\ **Created:** [February 13, 2014, 8:25pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278 "2014-02-13T20:25:20Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 13, 2014, 8:25pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/1 "2014-02-13T20:25:20Z")
As determined by the federal courts: > [@](#): > > We are called upon to decide whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense. > . > . > . > In California, the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a concealed-carry permit. And, in San Diego County, that option has been taken off the table. The San Diego County policy specifies that concern for “one’s personal safety alone” does not satisfy the “good cause” requirement for issuance of a permit. Instead, an applicant must demonstrate that he suffers a unique risk of harm: he must show “a set of circumstances that distinguish [him] from the mainstream and cause him . . . to be placed in harm’s way.” Given this requirement, the “typical” responsible, law-abiding citizen in San Diego County cannot bear arms in public for self-defense; a typical citizen fearing for his “personal safety”—by definition—cannot “distinguish [himself] from the mainstream.” > . > . > . > …San Diego County’s “good cause” permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense. ETA: The title of the thread should be “carry OF firearms.” Carry-on firearms on airplanes can, I think, safely be prohibited. ---
**Author:** ![Capt\_Kirk](https://avatars.discourse-cdn.com/v4/letter/c/779978/32.png) [@Capt\_Kirk](https://boards.straightdope.com/u/Capt_Kirk)\ **Post date:** [February 13, 2014, 9:26pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/2 "2014-02-13T21:26:14Z")
**Bricker** , a link please? I assume that this will go to the Supremes. Given past rulings and the current makeup of the Court, chalk up another win on the side of the gun rights camp. Are we about to enter the age of “shall issue” for CC permits? **Capt** ---
**Author:** ![2nd\_Law](https://avatars.discourse-cdn.com/v4/letter/2/f475e1/32.png) [@2nd\_Law](https://boards.straightdope.com/u/2nd_Law)\ **Post date:** [February 13, 2014, 9:45pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/3 "2014-02-13T21:45:51Z")
[Link to Daily Kos article with link to 9th Circuit decision](http://www.dailykos.com/story/2014/02/13/1277367/-RKBA-9th-Circuit-strikes-down) ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 13, 2014, 9:55pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/4 "2014-02-13T21:55:58Z")
Peruta has been in the court system for years. At first it was bemoaned by the gun rights community as too much too soon and there was fear of an adverse ruling. As it progressed, it began to get support from many places and now, CA and the rest of the 9th circuit is on notice. I’m not sure what this means to individual jurisdictions. The potential pitfalls right now I see are an en banc hearing, or SCOTUS. I can’ tell if there was a simultaneous injunction on this one. Should I go apply now? 🙂 ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [February 13, 2014, 9:56pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/5 "2014-02-13T21:56:59Z")
Based on the brief description given here and in the linked article, San Diego County’s policy sounds unconstitutional. I don’t like the Second Amendment but it exists and should therefore be followed. And it clearly says that people can carry firearms in public. Carrying firearms on airplanes can be prohibited by the airlines if they wish as I feel private property owners have the right to restrict firearms on their property without violating the Constitution. ---
**Author:** ![Yllaria](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/yllaria/32/3452_2.png) [@Yllaria](https://boards.straightdope.com/u/Yllaria)\ **Post date:** [February 13, 2014, 10:15pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/6 "2014-02-13T22:15:35Z")
So the idea is that if concealed carry isn’t allowed, open carry has been forbidden? Has that been established? ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [February 13, 2014, 10:54pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/7 "2014-02-13T22:54:30Z")
Its too bad, any restriction of firearms would be a net good in reducing the amount of death and harm caused by guns. Before the pro-gun people do their victory lap though, please, suggest a way to cut down on gun violence that’s not simply “more guns”. Though I feel bad for myself and those of my political bent, the real people who will be suffering are those who will be shot by guns. Do something about that before you gloat ---
**Author:** ![thelurkinghorror](https://avatars.discourse-cdn.com/v4/letter/t/7c8e57/32.png) [@thelurkinghorror](https://boards.straightdope.com/u/thelurkinghorror)\ **Post date:** [February 13, 2014, 10:56pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/8 "2014-02-13T22:56:15Z")
> [@Yllaria](#): > > So the idea is that if concealed carry isn’t allowed, open carry has been forbidden? Has that been established? I think it’s still not forbidden in ‘rural’ areas. But yes, I don’t see how this would make open carry legal if it make concealed carry legal. I do believe some states (Texas) are much more open to CCW than open. Air **ports** I believe has been covered by at least Revell v. Port Authority. Airlines have the right (in addition) to forbid items on their planes, I don’t know if private planes can allow it or not. I think, from a non-2A perspective and personal feeling aside, California’s policy was way too arbitrary, so this is a good clarification. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 13, 2014, 11:00pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/9 "2014-02-13T23:00:43Z")
> [@Yllaria](#): > > So the idea is that if concealed carry isn’t allowed, open carry has been forbidden? Has that been established? It seems to be implied by this - > [@](#): > > In California, the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a concealed-carry permit. As well as this - > [@](#): > > California generally prohibits people from carrying handguns in public openly or concealed, loaded or unloaded, but people can apply for permits from sheriffs or police chiefs to carry concealed, loaded weapons. [Cite](http://www.mercurynews.com/california/ci_25134832/?source=redbar). No doubt one of the Great Legal Minds of the SDMB will supply a link to the actual law. Regards, Shodan ---
**Author:** ![Happy\_Fun\_Ball](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/happy_fun_ball/32/17664_2.png) [@Happy\_Fun\_Ball](https://boards.straightdope.com/u/Happy_Fun_Ball)\ **Post date:** [February 13, 2014, 11:06pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/10 "2014-02-13T23:06:18Z")
I, for one, am not surprised by the ruling. Disappointed maybe, but not surprised. I don’t know why gun control people even bother anymore, the interpretation that the second amendment gives an individual right to carry firearms has been pretty firmly established by the SCOTUS. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [February 13, 2014, 11:18pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/11 "2014-02-13T23:18:38Z")
> [@Little\_Nemo](#): > > Carrying firearms on airplanes can be prohibited by the airlines if they wish as I feel private property owners have the right to restrict firearms on their property without violating the Constitution. It has nothing to do with the airlines or “private property”, it’s federal law. As private businesses airlines may, if they wish, impose additional restrictions. And while there are federal jurisdictional prerogatives that facilitate such a law, in the great scheme of things it boils down to the principle that the greater public interest should prevail over absolutist interpretations of Constitutional rights. Given the appalling rate of gun violence in the US, which is not even in the same order of magnitude as any other first-world nation on earth and is more in line with that of a war zone, it would not seem unreasonable to place the imperative of public safety and the right to not be shot to death over the presumed right of every yokel to walk around in public with a loaded handgun. Not that there is a hope in hell that the present Supreme Court, in its current makeup, would ever see it that way. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [February 13, 2014, 11:24pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/12 "2014-02-13T23:24:48Z")
Gun-control or gun-rights advocate shouldn’t make a difference. The point was that they have a law that you can get a CCW then make it impossible to get one. Kind of like the Marihuana Tax Act of 1937. No American should support a law whose sole purpose is to get around another (presumably Constitutionally-protected) law. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 13, 2014, 11:24pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/13 "2014-02-13T23:24:52Z")
Open carry of handguns is[banned in CA as of 2011 by AB144.](http://www.huffingtonpost.com/2011/10/10/california-open-carry-law_n_1003843.html) This was for unloaded handguns - loaded handguns were already banned by the Mulford Act in the 60s in response to the Black Panthers march on the capitol. Open carry of long guns is [banned in CA as of 2012 by AB1527.](http://latimesblogs.latimes.com/california-politics/2012/09/gov-brown-on-banning-open-carrying-of-long-guns-in-california-.html) “bear” must mean something. ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [February 13, 2014, 11:37pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/14 "2014-02-13T23:37:27Z")
> [@wolfpup](#): > > Given the appalling rate of gun violence in the US, which is not even in the same order of magnitude as any other first-world nation on earth and is more in line with that of a war zone… Whoa, there, Tonto! You need some hard data for that claim. Since I can step outside my house unarmed without fear of being shot except by aggressive nature cameramen, I don’t feel like I live in a war zone in the slightest. _And I’ve lived in a war zone._ The USA is as unlike that as I can possibly imagine. ---
**Author:** ![jonesj2205](https://avatars.discourse-cdn.com/v4/letter/j/ecc23a/32.png) [@jonesj2205](https://boards.straightdope.com/u/jonesj2205)\ **Post date:** [February 13, 2014, 11:38pm UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/15 "2014-02-13T23:38:19Z")
> [@wolfpup](#): > > And while there are federal jurisdictional prerogatives that facilitate such a law, in the great scheme of things it boils down to the principle that the greater public interest should prevail over absolutist interpretations of Constitutional rights. Given the appalling rate of gun violence in the US, which is not even in the same order of magnitude as any other first-world nation on earth and is more in line with that of a war zone, it would not seem unreasonable to place the imperative of public safety and the right to not be shot to death over the presumed right of every yokel to walk around in public with a loaded handgun. Not that there is a hope in hell that the present Supreme Court, in its current makeup, would ever see it that way. You do know there is a mechanism for changing the Constitution that isn’t the Supreme Court re-interprets something, right? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [February 14, 2014, 12:51am UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/16 "2014-02-14T00:51:59Z")
> [@wolfpup](#): > > And while there are federal jurisdictional prerogatives that facilitate such a law, in the great scheme of things it boils down to the principle that the greater public interest should prevail over absolutist interpretations of Constitutional rights. If the law is wrong, you should change the law not ignore it. ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [February 14, 2014, 1:00am UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/17 "2014-02-14T01:00:16Z")
So federal courts and the NRA agree that it is a constitutional right to carry firearms in the public, but not into a federal court or NRA meeting? Isn’t that a tad hypocritical? ---
**Author:** ![Capt\_Kirk](https://avatars.discourse-cdn.com/v4/letter/c/779978/32.png) [@Capt\_Kirk](https://boards.straightdope.com/u/Capt_Kirk)\ **Post date:** [February 14, 2014, 1:15am UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/18 "2014-02-14T01:15:47Z")
IANAL but I just finished reading the whole decision. I highly recommended it. Some highlights. Heller using the understanding of the time at the passage of the Second Amendment says the Amendment itself is just a codification of a natural right that existed from well before the Constitution, the individuals right to bear(carry) arms. Although Heller did not specifically address the right of self defense, the case law cited in it clearly did. This right predates the Constitution as well. The most common tool used in self defense is and has long been the handgun. The law abiding citizen has the right of self defense in both the private and public sphere and therefore has the right to carry a handgun. This individual right supersedes the Government’s interest in protecting the public at large by effectively banning the carry of handguns because it is enshrined in the Constitution and case law both before and after its implementation. The San Diego Law is Unconstitutional because is effectively bars the average law abiding citizen of his right to self defense. The State and its various Governments (city, county) may still make regulations regarding public carry of weapons, whether to allow open carry or concealed carry and restrictions on places where weapons may be carried as long as it does not interfere with an individuals right of self defense but it must allow either open carry, concealed carry or both. The Government may not disallow the carrying of weapons and their use for self defense by outlawing open carry and then restricting concealed carry to the extent the the average law abiding citizen has his right to self defense removed. Again IANAL but this is what I clearly understood from the decision, any mistakes are my own but I think I understood it well. **Capt** ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [February 14, 2014, 1:30am UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/19 "2014-02-14T01:30:42Z")
> [@Musicat](#): > > Whoa, there, Tonto! You need some hard data for that claim. Since I can step outside my house unarmed without fear of being shot except by aggressive nature cameramen, I don’t feel like I live in a war zone in the slightest. > > _And I’ve lived in a war zone._ The USA is as unlike that as I can possibly imagine. Difficult to provide hard data on the subjective interpretation of “war zone”, but persuasive hard data to the effect that a huge problem exists is not hard to come by. For instance… Comparison of U.S. gun homicides to other industrialized countries: In 1998 (just a typical year [for which I have data handy](http://books.google.ca/books?id=1uQtMC4L6XcC&pg=PA60&lpg=PA60&source=bl&ots=rHpafBlLin&sig=EMS0ucUaqHxeFgvb89Oe3zz_H0w&hl=en&sa=X&ei=uWr9Up7XEMegyAHE4YHYBA&redir_esc=y#v=onepage&q&f=false))… Handguns murdered: - 373 people in Germany - 151 people in Canada - 57 people in Australia - 19 people in Japan - 54 people in England and Wales, and - **11,789 people in the United States** In rankings of firearm death rates, the US certainly ranks better than nations torn by violence like Panama, Colombia, and even slightly better than Mexico, so “war zone” may be somewhat of a hyperbole, but is it really when gun deaths are compared **by any measure** to [all the other industrialized nations on earth](http://en.wikipedia.org/wiki/List_of_countries_by_firearm-related_death_rate)? It is certainly a problem that is off the charts in comparison with other peaceful nations. And it seems to me that it begs all credulity to claim that random yahoos carrying around loaded pistols in the streets is going to make this any better. However, I’ve long since learned that in the realm of guns, logical arguments are a lost cause. I was really just wanting to point out that the gun restrictions on airlines is a matter of federal law and not a matter of private business rights, and that there is a principled logical basis for extending the same principles of the public right to not get shot to wider spheres of influence, the Second Amendment notwithstanding. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [February 14, 2014, 1:38am UTC](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278/20 "2014-02-14T01:38:39Z")
Capt Kirk: your interpretation of Heller and its consequences is probably very accurate, and I don’t dispute it. But I think one might note from both a philosophical and a very pragmatic standpoint that Heller was a split decision with a great deal of well-founded controversy, so whatever else it may be, clear-cut it was not. IOW, with a different makeup of Justices, or in the future, the outcome could have been different or may yet be modified, respectively (as many other SCOTUS rulings have been)… > [@](#): > > In a dissenting opinion, Justice John Paul Stevens stated that the court’s judgment was “a strained and unpersuasive reading” which overturned longstanding precedent, and that the court had “bestowed a dramatic upheaval in the law”.[50] Stevens also stated that the amendment was notable for the “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense” which was present in the Declarations of Rights of Pennsylvania and Vermont.[50] > > The Stevens dissent seems to rest on four main points of disagreement: that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the “militia” preamble and exact phrase “to keep and bear arms” demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts’ later “collective-right” reading of the Miller decision constitutes stare decisis, which may only be overturned at great peril; and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional. The dissent concludes, “The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons… I could not possibly conclude that the Framers made such a choice.” > > Justice Stevens’ dissent was joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer. > **[District of Columbia v. Heller](https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller#Dissenting_opinions)** > > District of Columbia v. Heller, 554 U.S. 570 (2008), is a landmark decision of the Supreme Court of the United States. It ruled that the Second Amendment to the U.S. Constitution protects an individual's right to keep and bear arms for traditionally lawful purposes such as self-defense within the home, and that the District of Columbia's handgun ban and requirement that lawfully owned rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock" violated this guarantee. It [Next page](https://boards.straightdope.com/t/californias-refusal-to-allow-carry-of-firearms-unconstitutional/681278.md?page=2)