California ‘May Issue’ Law Overturned: How Will Illinois Fare?

February 16, 2014

California ‘May Issue’ Law Overturned: How Will Illinois Fare?


By Nancy Thorner & Edward Ingold –

In a landmark decision the 9th US Circuit Court of Appeals ruled that California’s “May Issue” concealed carry law is unconstitutional, by a vote of 2 to 1. The County of San Diego was sued by Edward Peruta and others after being denied a license to carry a concealed handgun for personal defense. According to California law, the applicant must show a “good cause” for the license, in addition to a clean criminal record and good moral character. In southern California and San Francisco, very few people qualify under the “good cause” requirement, which is determined at the whim of the Sheriff of the county.  In practice, only a few politically connected people receive a permit in populous counties, including Senators Diane Feinstein (D-California)) and Barbara Boxer (D-California), both strong advocates of gun control in Congress.

The 9th USCCOA (California) joins the 7th court (Illinois) in upholding the individual right to bear arms in public. On the other hand, the 2nd (New York), 3rd (New Jersey), and 4th(Maryland) courts have decided otherwise.  In their decision, the 9th court examined the historical significance of the right to bear arms in great detail, and soundly criticized the 2nd, 3rdand 4th courts for ignoring the legal history, and deferring to the “wisdom” of the respective state legislatures.

“Thus, the question is not whether the California scheme (in light of San Diego County’s policy) allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense.” Perula v County of San Diego

The court questions whether restricting the right to free speech (the 1st Amendment) to persons with a demonstrated need, certain times or certain subjects would be permitted under the Constitution. They go on to say that the 2nd Amendment is just as fundamental as the 1st, and simply codifies a predated freedom enjoyed by citizens.

It is likely that California will appeal this decision, first to try the case en banc (typically 11 members of the 30 member circuit). This is almost never granted, and if granted seldom overturns the tribunal. The next and obvious step, considering the split between Circuits, would be an appeal the US Supreme Court. While there are no guarantees, based on the majority opinions in Heller v District of Columbia and McDonald v Chicago, the court is likely to concur with the 7th and 9th Circuits. This would strike down the highly restrictive “may issue” laws in New York, New Jersey, Maryland, Massachusetts and Hawaii, allowing their citizens the right of self-defense.

While the decision of the 9th Circuit does not directly affect Illinois, their careful analysis lays the foundation for a closer examination of restrictions on where a citizen can bear arms. The Heller and McDonald decisions established a clear concept of the fundamental right to keep arms for the defense of one’s home and property. Decisions of the 7th (Illinois) and 9th Circuits establish the fundamental right to bear arms, in public, for self-defense. While no right is without limitations, the courts argue that enumerated rights can only be restricted if there is an overwhelming benefit to the public, not just some demonstrable need.

It is logical that limits on where this fundamental right to bear arms should be subjected to the same strict standards. In Heller and McDonald, the Supreme Court recognized that some places may be reasonably restricted, like courts of law certain government buildings and schools.  As the 9th so eloquently stated, these are suggestions, not mandates, and allowance of some restrictions does not mean any or all restrictions are justified.

In the debate leading to passage of HB183, there were many floor amendments added to restrict where weapons were allowed, which seemed to derive from an endless wish list. Libraries are prohibited, even though no acts of violence were cited (nor can be found). Public Transportation makes the list, even though attacks on innocent citizens are common, and the assailants ignore even existing laws. Chicago Forest Preserves are carved out, but not Forest Preserves in other counties, state and local parks, trails and DNR areas other than designated wildlife preserves.

Most of these issues will settle out naturally, once the public sees that CCL holders are not the villains, and the real villains have much more to fear than bystanders. That has been the evolution of laws in other states, and Illinois will no doubt follow. Where there are egregious violations of second amendment rights, we can expect the legislature and courts to intervene, and more large checks granted to the plaintiffs.

Saturday, February 15, 2014 at 03:04 PM | Permalink



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