Some day soon, we will know whether or not the concealed carry cert petition, Peruta v. California, is denied, granted, or relisted to the next private conference of justices for consideration.
Although I personally would like to see the cert petition granted, the odds are against it. For one thing, the en banc decision by the 9th circuit court of appeals is the most faithful to the decision handed down by the US Supreme Court in its 2008 decision, District of Columbia v. Heller.
In the decade since the cert petition in Heller was granted, SCOTUS has granted just three Second Amendment cert petitions. The first was in Heller, the second was McDonald v. City of Chicago which held that the Second Amendment is fully incorporated against the states and the third was a per curiam decision which reversed and remanded a decision of the Massachusetts high court because it directly conflicted with the Heller decision by holding that only those arms which existed in 1791 are protected by the Second Amendment. That case was Caetano v. Massachusetts.
Gay Marriage and the Supreme Court
Without dissent, SCOTUS has turned down every concealed carry cert petition. Every one of these concealed carry cert petitions suffered from two fatal defects.
Their first fatal defect is that they were concealed carry cert petitions. Their second fatal defect was the arguments presented in favor of granting the cert petitions. Even when challenging the “good and substantial reason/justifiable need” requirement for obtaining a permit to carry a handgun in public, permits which did not differentiate between concealed and Open Carry, the so called gun-rights lawyers argued that states can ban Open Carry in favor of concealed carry.
In a case out of New York, the plaintiffs did not bother to challenge New York’s handgun Open Carry ban. That case was concealed carry or nothing. The plaintiffs got nothing.
The Peruta v. California case suffers from the same two defects exacerbated by Peruta’s lawyers who argued that not only can states ban Open Carry but they should and must ban Open Carry.
The 2008 Heller decision said that concealed carry is not a right. The Heller decision said that Open Carry is the right guaranteed by the Constitution.
The proponents of same-sex marriage did not go into court arguing that heterosexual marriage can, must and should be banned in favor of same-sex marriage. They argued that the definition of marriage, which they agreed had always been defined as a union between a man and a woman, should be expanded to include same-sex couples.
The lawyers who argued for same-sex marriages did not claim that the people who wrote and enacted the 14th Amendment thought that gay-marriage was a fundamental right when it went into effect in 1868. That would have been laughable as well. And there certainly is not an enumerated right in the Federal Constitution to marriage, same-sex or otherwise.
Instead, the proponents of same-sex marriages focused their argument on persuading Justice Kennedy, the swing justice, to side with the four liberal justices, which Justice Kennedy did, giving them the five votes they needed to win.
Justice Kennedy and the four liberal justices “discovered” a right under the 14th Amendment which had never existed.
Peruta v. California is not a 14th Amendment equal protection or due process case. The petitioners’ cert petition does not even cite the 14th Amendment.
Mr. Peruta and his fellow petitioners seek concealed carry permits based on the theory that the US Supreme Court and American state courts since 1831 were all mistaken about concealed carry not being a right under the Second Amendment. They also argue that Open Carry, the right which the Heller decision said perfectly captures the meaning of the right to keep and bear arms, can, should and must be banned.
Indeed, Peruta’s lawyers argue that when the Supreme Court said concealed carry is not a right and that Open Carry is the right guaranteed by the Constitution, what the justices actually said was that Open Carry can be banned in favor of concealed carry.
Justice Kennedy might have been persuaded to expand the Second Amendment right to encompass concealed carry but the four liberal justices on the court certainly won’t be swayed. Neither will Justices Thomas, Alito and Roberts be swayed. Nor, I suspect, will the newly minted Justice Gorsuch be inclined to slap the late Justice Antonin Scalia in the face.
It will take the vote of five justices for Peruta to win, assuming that there are even four justices who will vote to grant his cert petition.
Concealed Carry, Incest and the Supreme Court
As Justice Scalia wrote in his landmark decision on the Second Amendment, District of Columbia v. Heller, the Second Amendment did not create the right. The Second Amendment is a codification of a preexisting right to armed self-defense, a right which does not depend upon the existence of the Second Amendment and which is a right which is a continuation of the English Bill of Rights of 1689.
Concealed carry or incest, guess which crime entailed the greater punishment in 1689, 1791 and 1868?
The answer to that question lies in part with an understanding of how English law worked at the time. Our judicial system is based on English law. Obviously, our two legal systems have diverged considerably since the American Revolution but the Framers of the Second Amendment and those who voted it into law were born and raised as Englishmen, as were their fathers and their fathers before them.
The following is greatly simplified but for our purposes we can view the English court system as being comprised of Civil courts and Canonical (Church) courts. A person who killed someone could be handed over to the Ecclesiastical judges for punishment after having been found guilty.
This was called being given the “benefit of clergy.” Instead of being hanged, one could escape with a much lesser punishment. That punishment was sometimes still quite severe. For example, someone convicted of killing another person might have his hand maimed with a red-hot iron and be required to present himself to the courts in a year’s time showing that he had not misbehaved.
Punishment for incest was always in the hands of the church courts and the punishment meted out was relatively minor, often a fine or doing some sort of penance.
In 1603, the English government got tired of murderers being given the benefit of clergy. Then, as now, most murders were committed with concealed weapons. And so the solution by the English Parliament was to enact the Statute of Stabbing 1 Jac. 1. c. 8.
The law was originally intended to be short-lived and applied to stabbing instruments. The law was continued and extended to apply to firearms as well. The law was also extended to apply to mutual combat.
The effect of removing the benefit of clergy was that if one used a concealed weapon against his opponent and his opponent died within six months then that person was guilty of willful murder and he could not be pardoned or given a lesser punishment. He was hanged.
The exception to the statute was if one were suddenly stabbed or shot at, then he could use his concealed weapon to defend himself. But not if he was engaged in mutual combat at the time even if the concealed weapon were used to save his own life.
In all other cases, if one carried a concealed weapon then he would have to produce the weapon and give his opponent the opportunity to similarly arm himself, or decline combat.
Incest, on the other hand, remained a minor offense until 1823/1827 when the benefit of clergy was abolished. From then on until 1908, incest was not even a crime in England.
With the exception of the District of Columbia which has a peculiar Federal status, there is no Federal crime of incest per se and the state incest crimes, or if not exactly crimes but prohibitions on incestuous marriages, were slow to be enacted. For example, Utah did not criminalize incest until 1892.
Congress abolished the benefit of clergy in Federal courts in 1790 which might have been relevant to any Federal crime of incest but not to concealed carry because by 1790, the use of a concealed weapon had long been accepted as the act of a coward and criminal as well as the act of someone who was more morally reprehensible than one who had committed incest.
By the way, homosexuality, unlike concealed carry, was always subject to the benefit of clergy.
Open Carry and the US Supreme Court
Within 25 years of the Second Amendment going into effect, states and local governments had begun enacting laws prohibiting the mere carriage of a concealed weapon. Some had banned the carrying of concealable firearms (e.g., handguns) even if they were carried openly.
Two of these laws resulted in state court decisions which upheld the prohibitions on concealed carry. The one state (Georgia) which had banned the carrying of concealable firearms even if they were carried openly had its law struck down as applied to all handguns provided that they were openly carried but upheld the law as to its prohibition on concealed carry. These two cases were Nunn v. State (Georgia) and State v. Chandler (Louisiana).
In 2008, the United States Supreme Court in the Heller decision said that these two cases perfectly captured the meaning of the Second Amendment right to keep and bear arms. The Heller decision cited a third case, State v. Reid, which held that states may not destroy the Second Amendment right under the pretense of regulating the right. The Reid Court considered the hypothetical case of Open Carry being banned and concealed carry being permitted but held that would still result in the destruction of the right for it is only when a firearm is openly carried can it be effectively used for lawful self-defense.
Emphasis on “lawful” as cowards, criminals and assassins find concealment of their weapons to be very effective.
In 1897, the US Supreme Court said that prohibitions on concealed carry do not infringe on the Second Amendment right to bear arms.
In the 2010 Supreme Court case of McDonald v. City of Chicago, the case which applied the Second Amendment against the states, Justice Breyer in his dissent lashed out at the majority of the justices for issuing a decision which went beyond the scope of the home. Justice Alito in response cited the section from Heller which said there were presumptively lawful regulations on the Second Amendment which should assuage his fears.
One of those is that concealed carry is not a right under the Second Amendment any more than there is a right to incestuous relations or homosexual marriage under the Second Amendment (concealed carry by travelers and persons actually on a journey notwithstanding).
Justice Gorsuch and Concealed Carry
I do not know if Justice Gorsuch would expand the right to bear arms in public to concealed carry if a properly argued 14th Amendment case were put before him.
I do know that if he is honest about deciding cases based on the Constitution and not based on his personal preferences then he will not find a general right to concealed carry under the Second Amendment because concealed carry was never a right under the Second Amendment. Again, travelers and persons while actually on a journey notwithstanding.
There is one “out” for Peruta and that is the justices can rewrite the questions presented to it in a cert petition.
The justices can rewrite the question presented in the Peruta cert petition to ask “Is there a right to openly carry a handgun (or firearm) outside of the home for the purpose of lawful self-defense?
Unfortunately, the NRA lawyers are not the one’s who should be arguing that question before the high court and it is very doubtful that SCOTUS will let them.
The justices of the US Supreme Court know that there are two other cases en route to them which will ask the question whether or not there is a right to openly carry any firearm outside of the home for the purpose of lawful self-defense, not just handguns.
The first of these cases is Norman v. State of Florida. The next is my California Open Carry appeal, Nichols v. Brown. My case is still waiting to be decided by the 9th circuit court of appeals. The Norman case out of Florida already has a decision by the Supreme Court of that state. We are just waiting for the state high court to decide whether or not to grant the motion to reconsider its decision and whether or not Mr. Norman decides to file a cert petition.
Unless I am hit by a bus or otherwise rendered unable to file a cert petition, should I lose in the 9th circuit court of appeals then I will file a cert petition raising the Open Carry question which none of the so called gun-rights lawyers have been willing to ask because they oppose Open Carry.
In Conclusion
Given the current justices on the US Supreme Court, SCOTUS is more likely to legalize incestuous marriages than it is to create a Second Amendment right to concealed carry.
But, for the sake of argument, let us assume that Justice Gorsuch hates Open Carry. Let us assume that he wants to destroy the Open Carry right, a right which has always existed under the Second Amendment, and replace it instead with something which has never been a right under the Second Amendment, concealed carry.
For this to happen, Justice Gorsuch will have to convince four other justices to vote with him.
Can you name those justices? I can’t.
“[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809
“But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws – prohibitions on concealed weapons…” Heller dissent at 2851
“[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.
“We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.” McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010) at 3050.
