Peruta v. County of San Diego | Brady Campaign to Prevent Gun Violence

Peruta v. County of San Diego

Peruta v. County of San Diego was a challenge to San Diego County's permitting system for concealed carry of weapons (CCW). California state law prohibits the open carry of loaded firearms, but allows for concealed carry with a permit issued by local law enforcement to applicants who meet certain basic requirements, such as passing a background check and demonstrating a "good cause" for carrying guns in public. "Good cause" reasons may include personal protection related to individual business or occupations. Plaintiff Edward Peruta was denied a CCW permit after he could not demonstrate a good cause for its issuance, and accordingly filed a lawsuit in April 2010 claiming that the "good cause" requirement violated his Second Amendment rights.

The District Court held that San Diego's CCW system was constitutional. Plaintiffs appealed this decision. A three judge panel on the United States Court of Appeals for the 9th Circuit reversed the District Court's decision in February 2014, claiming that the laws infringed on a purported right to public carry for lawful self-defense. The panel first decided to expand Peruta's claim to examine California's larger scheme of both open and concealed carry, and delved extensively into the history of public carry laws. At both the District and 9th Circuit Court levels, the Brady Center, with law firm partner Hogan Lovells, filed amicus briefs in support of San Diego, arguing that California's "good cause" requirement did not implicate protected Second Amendment rights of self-defense in the home, as recognized by both D.C. v Heller (2008) and McDonald v City of Chicago (2010), and that even if the CCW scheme did implicate the Second Amendment, it satisfied the appropriate level of scrutiny so was constitutional.

When San Diego County declined to seek en banc review of the panel decision, Brady and the State of California separately petitioned for an en banc rehearing, that is a rehearing by the full panel of 9th Circuit judges, urging the court to reevaluate its stance on the "exceptionally important" issue of public carry schemes. Brady filed two en banc petitions in February 2014 and November 2014 and another amicus brief in December 2014, arguing that the 9th Circuit's decision to strike down the "good cause" requirement conflicted with Supreme Court and all other Circuit Court decisions on CCW schemes. In addition, the brief contended that the 9th Circuit's refusal to specify and apply a form of scrutiny in its judgement conflicted with the Court's own past decisions that applied "reasonable review" or "intermediate scrutiny" to similar gun law cases. Though these motions were initially denied, the 9th Circuit Court later agreed to an en banc rehearing in March 2015.

On June 9th 2016, the en banc 9th Circuit reversed its earlier opinion and affirmed the District Court's initial decision that San Diego's law was constitutional, based on an "overwhelming consensus of historical sources." The plaintiff's petition for a rehearing en banc was later denied by the 9th Circuit, closing the case. The Court left the question of constitutionality of open carry regulations for future litigation to address, but concluded that "the protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public," and thus "any prohibition or restriction a state may choose to impose on concealed carry — including a requirement of 'good cause,' however defined — is necessarily allowed by the Amendment."