United States Supreme Court Declines To Decide Whether Second Amendment Protects The Right To Bear Arms In Public

Courtesy of James R. Touchstone, Esq. and Keith F. Collins, Esq. of Jones & Mayer

On June 26, 2017, the United States Supreme Court denied certiorari in the closely followed case of Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. Cal. June 9, 2016).  By declining to review the Ninth Circuit’s decision, the Supreme Court declined an opportunity to clarify whether the Second Amendment protects the right to bear arms in public (whether open or concealed), and let stand the Ninth Circuit’s prior ruling that it does not protect the right to carry concealed firearms in public.  This decision has the practical effect of upholding San Diego County’s policy of issuing concealed carry permits to those who appropriately articulate good cause for the permit.  The ruling also provides that other jurisdictions have discretion to promulgate policies governing issuance of CCW permits for their residents based upon the particularized needs of their respective communities.

The Dissent

In a somewhat scathing dissent of the denial of certiorari, Justices Thomas and Gorsuch criticized the Supreme Court’s unwillingness to review Second Amendment cases during the past seven years (zero cases) with the same frequency it reviews cases interpreting the First Amendment (35) and Fourth Amendment (25). The dissent suggests this huge disparity reflects the Court’s treatment of the Second Amendment as a disfavored right.

The dissent also criticized the lower court’s decision, finding the Ninth Circuit’s approach to the legal issue in this case was “indefensible.” Specifically, the Ninth Circuit limited its review to whether the Second Amendment protects the right to concealed carry as opposed to the more general right of public carry despite the fact that California’s statutory scheme makes a concealed carry permit the only method to bear arms in public.  This was improper, the dissent alleged, since the “heart of the parties dispute is whether the Second Amendment protects the right to carry a loaded handgun in public, either openly or in a concealed manner.”


Because the Supreme Court declined to review this case, law enforcement agencies in California that issue concealed carry permits can continue to require applicants to demonstrate a particularized need beyond concern for one’s own personal safety.  Law enforcement agencies have discretion, as guided by applicable Penal Code provisions, to determine what constitutes “good cause” for issuance of a CCW permit in consideration of the unique circumstances and needs of their respective communities.

As always, if you wish to discuss this matter in greater detail, please feel free to contact us at (714) 446 – 1400 or via email at jrt@jones-mayer.com [for James Touchstone] or kfc@jones-mayer.com [for Keith Collins].

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

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