Edward Peruta v. County of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD PERUTA; MICHELLE No. 10-56971

LAXSON; JAMES DODD; LESLIE

BUNCHER, DR.; MARK CLEARY; D.C. No.

CALIFORNIA RIFLE AND PISTOL 3:09-cv-02371-

ASSOCIATION FOUNDATION, IEG-BGS

Plaintiffs-Appellants,

v.

COUNTY OF SAN DIEGO; WILLIAM D.

GORE, individually and in his

capacity as Sheriff,

Defendants-Appellees,

STATE OF CALIFORNIA,

Intervenor.

Appeal from the United States District Court

for the Southern District of California

Irma E. Gonzalez, Senior District Judge, Presiding

2 PERUTA V. CTY. OF SAN DIEGO

ADAM RICHARDS; SECOND No. 11-16255

AMENDMENT FOUNDATION;

CALGUNS FOUNDATION, INC.; BRETT D.C. No.

STEWART, 2:09-cv-01235-

Plaintiffs-Appellants, MCE-DAD

v.

OPINION

ED PRIETO; COUNTY OF YOLO,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Chief District Judge, Presiding

Argued and Submitted En Banc June 16, 2015

San Francisco, California

Filed June 9, 2016

Before: Sidney R. Thomas, Chief Judge and Harry

Pregerson, Barry G. Silverman, Susan P. Graber,

M. Margaret McKeown, William A. Fletcher, Richard A.

Paez, Consuelo M. Callahan, Carlos T. Bea, N. Randy

Smith and John B. Owens, Circuit Judges.

Opinion by Judge W. Fletcher;

Concurrence by Judge Graber;

Dissent by Judge Callahan;

Dissent by Judge Silverman;

Dissent by Judge N.R. Smith

PERUTA V. CTY. OF SAN DIEGO 3

SUMMARY*

Civil Rights

The en banc court affirmed the district courts’ judgments

and held that there is no Second Amendment right for

members of the general public to carry concealed firearms in

public.

Appellants, who live in San Diego and Yolo Counties,

sought to carry concealed firearms in public for self-defense,

but alleged they were denied licenses to do so because they

did not satisfy the good cause requirements in their counties.

Under California law, an applicant for a license must show,

among other things, “good cause” to carry a concealed

firearm. California law authorizes county sheriffs to establish

and publish policies defining good cause. Appellants contend

that San Diego and Yolo Counties’ published policies

defining good cause violate their Second Amendment right to

keep and bear arms.

The en banc court held that the history relevant to both

the Second Amendment and its incorporation by the

Fourteenth Amendment lead to the same conclusion: The

right of a member of the general public to carry a concealed

firearm in public is not, and never has been, protected by the

Second Amendment. Therefore, because the Second

Amendment does not protect in any degree the right to carry

concealed firearms in public, any prohibition or restriction a

state may choose to impose on concealed carry — including

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 PERUTA V. CTY. OF SAN DIEGO

a requirement of “good cause,” however defined — is

necessarily allowed by the Amendment. The en banc court

stated that there may or may not be a Second Amendment

right for a member of the general public to carry a firearm

openly in public, but the Supreme Court has not answered

that question.

The en banc court granted the motion to intervene by the

State of California, which sought intervention after the San

Diego Sheriff declined to petition for rehearing en banc

following the panel’s decision. The en banc court held that

under the circumstances presented here, California’s motion

to intervene was timely.

Concurring, Judge Graber, joined by Chief Judge Thomas

and Judge McKeown, wrote separately only to state that, even

if the Second Amendment applied to the carrying of

concealed weapons in public, the provisions at issue would be

constitutional.

Dissenting, Judge Callahan, joined by Judge Silverman as

to all parts except section IV, by Judge Bea, and by Judge

N.R. Smith as to all parts except section II.B, stated that in

the context of present-day California law, the defendant

counties’ limited licensing of the right to carry concealed

firearms is tantamount to a total ban on the right of an

ordinary citizen to carry a firearm in public for self-defense.

Thus, plaintiffs’ Second Amendment rights have been

violated.

Dissenting, Judge Silverman, joined by Judge Bea, would

hold that the challenged laws are unconstitutional under the

Second Amendment because they do not survive any form of

heightened scrutiny analysis.

PERUTA V. CTY. OF SAN DIEGO 5

Dissenting, Judge N.R. Smith stated that he joined the

dissent of Judge Callahan but wrote separately only to

express his opinion that the appropriate remedy is to remand

this case to the district courts to allow them to initially

determine and apply an appropriate level of scrutiny.

COUNSEL

In No. 10-56971:

Paul D. Clement (argued), Bancroft PLLC, Washington,

D.C.; Paul Henry Neuharth, Jr., Paul Neuharth, Jr., APC, San

Diego, California; Carl D. Michel, Glenn S. McRoberts, Sean

A. Brady, and Bobbie K. Ross, Michel & Associates, P.C.,

Long Beach, California, for Plaintiffs-Appellants.

Edward C. DuMont (argued), Solicitor General; Gregory

David Brown, Deputy Solicitor General; Douglas J. Woods,

Senior Assistant Attorney General; Anthony R. Hakl, Deputy

Attorney General; Mark Beckington, Supervising Deputy

Attorney General; Kamala D. Harris, Attorney General of

California; Office of the California Attorney General, San

Francisco, California; for Intervenor.

James Chapin, County Counsel, Office of County Counsel,

San Diego, California, for Defendants-Appellees.

In No. 11-16255:

Alan Gura (argued), Gura & Possessky, PLLC, Alexandria,

Virginia; Donald Kilmer, Jr., Law Offices of Donald Kilmer,

San Jose, California; for Plaintiffs-Appellants.

6 PERUTA V. CTY. OF SAN DIEGO

John A. Whitesides (argued), Peter D. Halloran, and Serena

M. Warner, Angelo, Kilday & Kilduff, Sacramento,

California, for Defendants-Appellees Ed Prieto and County

of Yolo.

***

Stefan B. Tahmassebi, Fairfax, Virginia; Stephen Porter

Halbrook, Fairfax, Virginia; for Amicus Curiae Congress of

Racial Equality, Inc.

John D. Ohlendorf, Peter A. Patterson, David H. Thompson,

and Charles J. Cooper, Cooper & Kirk, PLLC, Washington,

D.C., for Amicus Curiae National Rifle Association of

America, Inc.

Dan M. Peterson, Dan M. Peterson PLLC, Fairfax, Virginia;

David B. Kopel, Independence Institute, Denver, Colorado,

for Amici Curiae International Law Enforcement Educators

and Trainers Association, Law Enforcement Legal Defense

Fund, Law Enforcement Action Network, and Law

Enforcement Alliance of America.

Simon Frankel, Samantha J. Choe, Steven D. Sassman, and

Ryan M. Buschell, Covington & Burling, LLP, San

Francisco, California, for Amici Curiae Legal Community

Against Violence, Major Cities Chiefs Association,

Association of Prosecuting Attorneys, George Gascón, San

Francisco District Attorney, and Law Center to Prevent Gun

Violence.

Alan Gura, Gura & Possessky, PLLC, Alexandria, Virginia,

for Amici Curiae Second Amendment Foundation, Inc.,

Calguns Foundation, Inc., Adam Richards, and Brett Stewart.

PERUTA V. CTY. OF SAN DIEGO 7

John C. Eastman, Anthony T. Caso, and Karen J. Lugo,

Center for Constitutional Jurisprudence, Orange, California,

for Amici Curiae Center for Constitutional Jurisprudence,

Doctors for Responsible Gun Ownership, and Law

Enforcement Alliance of America.

Don Kates, Michel & Associates, P.C., Battle Ground,

Washington, for Amici Curiae The Gun Owners of California

and H.L. Richardson.

Neil R. O’Hanlon, Hogan Lovells US LLP, Los Angeles,

California; Jonathan L. Diesenhaus, Adam K. Levin, James

W. Clayton, and Kathryn Linde Marshall, Hogan Lovells US

LLP, Washington, D.C., for Amici Curiae Brady Center to

Prevent Gun Violence, The International Brotherhood of

Police Officers, and The Police Foundation.

John A. Whitesides and Serena M. Warner, Angelo, Kilday

& Kilduff, Sacramento, California, for Amici Curiae Edward

G. Prieto and County of Yolo.

Girard D. Lau, Solicitor General of Hawaii; Kimberly

Tsumoto Guidry, First Deputy Solicitor General; Robert T.

Takatsuji, Deputy Solicitor General; Department of the

Attorney General, Honolulu, Hawaii; for Amicus Curiae State

of Hawaii.

Paul R. Coble, Krista MacNevin Jee, James R. Touchstone,

and Martin Joel Mayer, Jones & Mayer, Fullerton, California,

for Amici Curiae California Police Chiefs’ Association,

California Peace Officers’ Association, and California

Sheriffs’ Association.

8 PERUTA V. CTY. OF SAN DIEGO

Stephen M. Duvernay and Bradley A. Benbrook, Benbrook

Law Group, PC, Sacramento, California, for Amici Curiae

Firearms Policy Coalition, Inc., Firearms Policy Foundation,

Inc., California Association of Federal Firearms Licensees,

Inc., Pink Pistols, Gun Rights Across America, Liberal Gun

Owners Association, Madison Society, Inc., Hawaii Defense

Foundation, Florida Carry, Inc., Illinois Carry, Knife Rights

Foundation, Inc., and Second Amendment Plaintiffs.

Charles Nichols, Redondo Beach, California, for Amicus

Curiae California Right to Carry.

Brian S. Koukoutchos, Mandeville, Louisiana, for Amici

Curiae Pink Pistols, Women Against Gun Control, Inc., and

Second Amendment Sisters.

Thomas Peter Pierce and Stephen D. Lee, Richards, Watson

& Gershon, Los Angeles, California, for Amicus Curiae

League of California Cities.

Andrew S. Oldham, Deputy General Counsel; James D.

Blacklock, General Counsel; Office of the Governor, Austin,

Texas; for Amici Curiae Governors of Texas, Louisana,

Maine, Mississippi, Oklahoma, and South Dakota.

Brett J. Talley, Deputy Solicitor General; Andrew L. Brasher,

Solicitor General; Luther Strange, Attorney General; Office

of the Attorney General of Alabama, Montgomery, Alabama;

for Amici Curiae Alabama, Alaska, Arkansas, Florida, Idaho,

Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana,

Nevada, North Dakota, Ohio, Oklahoma, South Carolina,

South Dakota, Texas, Utah, West Virginia, and Wisconsin.

PERUTA V. CTY. OF SAN DIEGO 9

Robert J. Olson, Jeremiah L. Morgan, John S. Miles, William

J. Olson, and Herbert W. Titus, William J. Olson, P.C.,

Vienna, Virginia; for Amici Curiae Gun Owners of America,

Inc.; Gun Owners Foundation; U.S. Justice Foundation; The

Lincoln Institute for Research and Education; The Abraham

Lincoln Foundation for Public Policy Research, Inc.; Policy

Analysis Center; Institute on the Constitution; and

Conservative Legal Defense and Education Fund.

Michael Connelly, Ramona, California, for Amicus Curiae

U.S. Justice Foundation.

Jonathan E. Taylor and Deepak Gupta, Gupta Beck PLLC,

Washington, D.C., for Amicus Curiae Everytown for Gun

Safety.

David D. Jensen, David Jensen PLLC, New York, New York,

for Amici Curiae New York State Rifle & Pistol Association,

Association of New Jersey Rifle & Pistol Clubs,

Commonwealth Second Amendment, Gun Owners’ Action

League, and Maryland State Rifle & Pistol Association.

Jonathan S. Goldstein, McNelly & Goldstein, LLC, Hatfield,

Pennsylvania, for Amici Curiae Western States Sheriffs’

Association, Sheriff Adam Christianson, Sheriff Jon Lopey,

Sheriff Margaret Mims, Sheriff Tom Bosenko, David

Hencratt, Sheriff Steven Durfor, Sheriff Thomas Allman,

Sheriff David Robinson, Sheriff Scott Jones, Sheriff Bruce

Haney, Sheriff John D’Agostini, and Retired Sheriff Larry

Jones.

10 PERUTA V. CTY. OF SAN DIEGO

Brandon M. Kilian, La Grange, California, for Amicus Curiae

The Madison Society, Inc.

Michael John Vogler, Vogler Law Offices, Pasadena,

California, pro se Amicus Curiae.

PERUTA V. CTY. OF SAN DIEGO 11

OPINION

W. FLETCHER, Circuit Judge:

Under California law, a member of the general public

may not carry a concealed weapon in public unless he or she

has been issued a license. An applicant for a license must

satisfy a number of conditions. Among other things, the

applicant must show “good cause” to carry a concealed

firearm. California law authorizes county sheriffs to establish

and publish policies defining good cause. The sheriffs of San

Diego and Yolo Counties published policies defining good

cause as requiring a particularized reason why an applicant

needs a concealed firearm for self-defense.

Appellants, who live in San Diego and Yolo Counties,

allege that they wish to carry concealed firearms in public for

self-defense, but that they do not satisfy the good cause

requirements in their counties. They contend that their

counties’ definitions of good cause violate their Second

Amendment right to keep and bear arms. They particularly

rely on the Supreme Court’s decisions in District of Columbia

v. Heller, 554 U.S. 570 (2008), and McDonald v. City of

Chicago, 561 U.S. 742 (2010).

We hold that the Second Amendment does not preserve

or protect a right of a member of the general public to carry

concealed firearms in public.

I. Procedural History

Plaintiff Edward Peruta lives in San Diego County. He

applied for a license to carry a concealed firearm in February

2009, but his application was denied because he had not

12 PERUTA V. CTY. OF SAN DIEGO

shown good cause under the policy published in his county.

Plaintiff Adam Richards lives in Yolo County. He sought a

license to carry a concealed firearm in May 2009, but was

told he could not establish good cause under his county’s

policy. Peruta, Richards, and the other plaintiffs — five

residents of San Diego and Yolo Counties, as well as several

gun-rights organizations — brought two separate suits

challenging under the Second Amendment the two counties’

interpretation and application of the statutory good cause

requirement under California law.

The district courts granted summary judgment in each

case, holding that the counties’ policies do not violate the

Second Amendment. Peruta v. Cty. of San Diego, 758 F.

Supp. 2d 1106 (S.D. Cal. 2010); Richards v. Cty. of Yolo,

821 F. Supp. 2d 1169 (E.D. Cal. 2011). A divided three-

judge panel of this court reversed both decisions. The panel

majority held in a published opinion in Peruta that San

Diego’s policy violated the Second Amendment. See Peruta

v. Cty. of San Diego, 742 F.3d 1144 (9th Cir. 2014); see also

id. at 1179 (Thomas, J., dissenting). Although Plaintiffs

challenged only the county’s concealed firearms policy, the

panel held that their challenge should not be “viewed in

isolation.” Rather, in the view of the panel majority,

Plaintiffs’ suit should be viewed as a challenge to “the

constitutionality of [California’s] entire [statutory] scheme.”

Id. at 1171. In the majority’s view, the Second Amendment

required that “the states permit some form of carry for self-

defense outside the home.” Id. at 1172 (emphasis in original).

Because California’s statutory scheme permits concealed

carry only upon a showing of good cause and because open

carry is also restricted, the panel held that the county’s

definition of good cause for a concealed carry license violates

the Second Amendment. Id at 1179. The panel held in

PERUTA V. CTY. OF SAN DIEGO 13

Richards that, in light of its holding in Peruta, the Yolo

County policy also violated the Second Amendment. See

Richards v. Prieto, 560 F. App’x 681 (9th Cir. 2014); see also

id. at 682 (Thomas, J., concurring in the judgment).

Yolo County and its sheriff, Ed Prieto, filed a petition for

rehearing en banc in Richards. San Diego County’s sheriff,

William Gore, announced that he would not petition for

rehearing en banc in Peruta. After Sheriff Gore declined to

file a petition, the State of California moved to intervene in

Peruta in order to seek rehearing en banc. The same divided

three-judge panel denied California’s motion to intervene.

See Peruta v. Cty. of San Diego, 771 F.3d 570 (9th Cir.

2014); see also id. at 576 (Thomas, J., dissenting).

We granted rehearing en banc in both cases. Peruta v.

Cty. of San Diego, 781 F.3d 1106 (9th Cir. 2015); Richards

v. Prieto, 782 F.3d 417 (9th Cir. 2015).

II. Standard of Review

We review a district court’s grant of summary judgment

de novo. Sanchez v. Cty. of San Diego, 464 F.3d 916, 920

(9th Cir. 2006). We review constitutional questions de novo.

Am. Acad. of Pain Mgmt. v. Joseph, 353 F.3d 1099, 1103 (9th

Cir. 2004).

III. California Firearms Regulation

California has a multifaceted statutory scheme regulating

firearms. State law generally prohibits carrying concealed

firearms in public, whether loaded or unloaded. Cal. Penal

Code § 25400. State law also generally prohibits carrying

loaded firearms on the person or in a vehicle in any public

14 PERUTA V. CTY. OF SAN DIEGO

place or on any public street, in either an incorporated city or

a “prohibited area” of “unincorporated territory.” Id. §

25850. Finally, state law generally prohibits carrying

unloaded handguns openly on the person in a public place or

on a public street, in either an incorporated city or a

“prohibited area” of an “unincorporated area of a county.” Id.

§ 26350.

However, there are numerous exceptions to these general

prohibitions. For example, the prohibitions of §§ 25400 and

25850 do not apply to active and retired “peace officers.” Id.

§§ 25450, 25900. The prohibition of § 25400 does not apply

to guards or messengers of common carriers of banks or

financial institutions while employed in the shipping of things

of value. Id. § 25630. The prohibition of § 25850 does not

apply to armored vehicle guards, guards or messengers of

common carriers, banks or financial institutions, security

guards, animal control officers, or zookeepers, provided they

have completed an approved course in firearms training. Id.

§§ 26015, 26025, 26030.

Further, the prohibition of § 25400 does not apply to

licensed hunters or fishermen while engaged in hunting or

fishing, to members of target shooting clubs while on target

ranges, or to the transportation of unloaded firearms while

going to or returning from hunting or fishing expeditions or

target ranges. Id. §§ 25640, 25635. Nor does it apply to the

transportation of a firearm to and from a safety or hunting

class or a recognized sporting event involving a firearm, to

transportation between a person’s residence and business or

private property owned or possessed by the person, or to

transportation between a business or private residence for the

purpose of lawful repair, sale, loan, or transfer of the firearm.

Id. §§ 25520, 25525, 25530. The prohibition of § 25850 does

PERUTA V. CTY. OF SAN DIEGO 15

not apply to a person having a loaded firearm at his or her

residence, including a temporary residence or campsite. Id.

§ 26055. Nor does it apply to a person having a loaded

firearm at his or her place of business or on his or her private

property. Id. § 26035. It also does not apply to a person “who

reasonably believes that any person or the property of any

person is in immediate, grave danger and that the carrying of

the weapon is necessary for the preservation of that person or

property.” Id. § 26045. Nor does it apply to persons using

target ranges for practice, or to members of shooting clubs

while hunting on the premises of the clubs. Id. § 26005.

Finally, the prohibitions of §§ 25400, 25850 and 23650 do

not apply to transportation of firearms between authorized

locations, provided that the firearm is unloaded and in a

locked container, and that the course of travel has no

unreasonable deviations. Id. § 25505.

The case before us concerns the general prohibition of

§ 25400 against carrying loaded or unloaded concealed

weapons, and a license-based exception to that prohibition.

The prohibition of § 25400 does not apply to those who have

been issued licenses to carry concealed weapons. Id.

§ 25655. The sheriff of a county may issue a concealed carry

license to a person upon proof of all of the following:

(1) The applicant is of good moral character.

(2) Good cause exists for issuance of the

license.

(3) The applicant is a resident of the county or

a city within the county, or the applicant’s

principal place of employment or business is

in the county or a city within the county and

16 PERUTA V. CTY. OF SAN DIEGO

the applicant spends a substantial period of

time in that place of employment or business.

(4) The applicant has completed a course of

training as described in Section 26165.

Id. § 26150(a). The chief of a municipal police department

may issue a concealed carry license under comparable

criteria; the only difference is that the applicant must be a

“resident of that city.” Id. §§ 26155(a), 26155(a)(3)

(residence). Sheriffs and municipal police chiefs are required

to “publish and make available a written policy summarizing

the provisions” of §§ 26150(a) and 26155(a). Id. § 26160.

An affidavit of Blanca Pelowitz, Manager of the San

Diego Sheriff’s Department License Division, describes the

definition of good cause in San Diego County:

Good Cause . . . is defined by this County

to be a set of circumstances that distinguish

the applicant from the mainstream and causes

him or her to be placed in harm’s way.

Simply fearing for one’s personal safety alone

is not considered good cause. This criterion

can be applied to situations related to personal

protection as well as those related to

individual businesses or occupations.

Good cause is also evaluated on an

individual basis. Reasons applicants request

a license will fall into one of . . . four general

categories[.]

PERUTA V. CTY. OF SAN DIEGO 17

The only two general categories potentially relevant to this

appeal are:

Category 2 = Personal Protection Only

includes: documented threats, restraining

orders and other related situations where an

applicant can demonstrate they are a specific

target at risk.

Category 4 = Business owners/employees

includes a diversity of businesses &

occupations, such as doctors, attorneys,

CEO’s, managers, employees and volunteers

whose occupation or business places them at

high risk of harm.

The published policy of Yolo County does not define

“good cause” but gives examples of where good cause does,

or does not, exist. The policy provides as follows:

Examples of valid reasons to request a permit

include, but are not limited to:

Victims of violent crime and/or

documented threats of violence.

Business owners who carry large sums of

cash or valuable items.

Business owners who work all hours in

remote areas and are likely to encounter

dangerous people and situations.

18 PERUTA V. CTY. OF SAN DIEGO

Examples o[f] invalid reasons to request a

permit include, but are not limited to:

Recreation in remote areas.

Hunting or fishing.

Self protection and protection of family

(without credible threats of violence).

Employment in the security field, i.e.,

security guard, body guard, VIP

protection.

Personal safety due to job conditions or

duties placed on the applicant by their

employer.

IV. Second Amendment and Concealed Carry

Plaintiffs contend that the good cause requirement for

concealed carry, as interpreted in the policies of the sheriffs

of San Diego and Yolo Counties, violates the Second

Amendment. Plaintiffs’ arguments in the two cases differ in

some particulars, but they essentially proceed as follows.

First, they contend that the Second Amendment guarantees at

least some ability of a member of the general public to carry

firearms in public. Second, they contend that California’s

restrictions on concealed and open carry of firearms, taken

together, violate the Amendment. Third, they contend that

there would be sufficient opportunity for public carry of

firearms to satisfy the Amendment if the good cause

requirement for concealed carry, as interpreted by the sheriffs

of San Diego and Yolo Counties, were eliminated. Therefore,

PERUTA V. CTY. OF SAN DIEGO 19

they contend, the counties’ good cause requirements for

concealed carry violate the Amendment. While Plaintiffs

base their argument on the entirety of California’s statutory

scheme, they allege only that they have sought permits to

carry concealed weapons, and they seek relief only against

the policies requiring good cause for such permits. Notably,

Plaintiffs do not contend that there is a free-standing Second

Amendment right to carry concealed firearms.

We do not reach the question whether the Second

Amendment protects some ability to carry firearms in public,

such as open carry. That question was left open by the

Supreme Court in Heller, and we have no need to answer it

here. Because Plaintiffs challenge only policies governing

concealed carry, we reach only the question whether the

Second Amendment protects, in any degree, the ability to

carry concealed firearms in public. Based on the

overwhelming consensus of historical sources, we conclude

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.

The Second Amendment may or may not protect, to some

degree, a right of a member of the general public to carry

firearms in public. But the existence vel non of such a right,

and the scope of such a right, are separate from and

independent of the question presented here. We hold only

that there is no Second Amendment right for members of the

general public to carry concealed firearms in public.

20 PERUTA V. CTY. OF SAN DIEGO

A. Heller and McDonald

The Second Amendment provides: “A well regulated

Militia, being necessary to the security of a free State, the

right of the people to keep and bear Arms, shall not be

infringed.” U.S. Const. amend. II. The watershed case

interpreting the Amendment is District of Columbia v. Heller,

554 U.S. 570 (2008). The plaintiff in Heller challenged a

District of Columbia statute that entirely banned the

possession of handguns in the home, and required that any

lawful firearm in the home be “disassembled or bound by a

trigger lock at all times, rendering it inoperable.” Id. at 628.

Relying on the phrase “shall not be infringed,” the Court

in Heller viewed the Amendment as having “codified a pre-

existing right.” Id. at 592 (emphasis in original). The Court

focused on the history leading to the adoption of the

Amendment, and on the common understanding of the

Amendment in the years following its adoption. The Court

concluded that the “pre-existing right” to keep and bear arms

preserved by the Second Amendment was in part an

individual right to personal self-defense, not confined to the

purpose of maintaining a well-regulated militia. The Court

struck down the challenged statute, concluding that the

Amendment preserves the right of members of the general

public to keep and bear arms in their homes for the purpose

of self-defense: “[W]e hold that the District’s ban on handgun

possession in the home violates the Second Amendment, as

does its prohibition against rendering any lawful firearm in

the home operable for the purpose of immediate self-

defense.” Id. at 635.

The Court in Heller was careful to limit the scope of its

holding. Of particular interest here, the Court noted that the

PERUTA V. CTY. OF SAN DIEGO 21

Second Amendment has not been generally understood to

protect the right to carry concealed firearms. The Court

wrote:

Like most rights, the right secured by the

Second Amendment is not unlimited. From

Blackstone through the 19th-century cases,

commentators and courts routinely explained

that the right was not a right to keep and carry

any weapon whatsoever in any manner

whatsoever and for whatever purpose. For

example, the majority of the 19th-century

courts to consider the question held that

prohibitions on carrying concealed weapons

were lawful under the Second Amendment or

state analogues. See, e.g., State v. Chandler,

5 La. Ann., at 489–90 [(1850)]; Nunn v. State,

1 Ga., at 251 [(1846)]; see generally 2 Kent,

[Commentaries on American Law (O. Holmes

ed., 12th ed. 1873)] *340, n.2; The American

Students’ Blackstone 84, n.11 (G. Chase ed.

1884).

Id. at 626–27 (emphasis added) (some citations omitted).

At the end of its opinion, the Court again emphasized the

limited scope of its holding, and underscored the tools that

remained available to the District of Columbia to regulate

firearms. Referring the reader back to the passage just

quoted, the Court wrote:

The Constitution leaves the District of

Columbia a variety of tools for combating

th[e] problem [of handgun violence],

22 PERUTA V. CTY. OF SAN DIEGO

including some measures regulating

handguns, see supra at 626–627, and n.26.

Id. at 636.

Heller left open the question whether the Second

Amendment applies to regulation of firearms by states and

localities. The Court answered the question two years later,

in McDonald v. City of Chicago, 561 U.S. 742 (2010),

holding that the Due Process Clause of the Fourteenth

Amendment incorporates the Second Amendment. In

substantial part, the Court based its holding on the

understanding of a “clear majority” of the states when the

Fourteenth Amendment was adopted. The Court wrote:

A clear majority of the States in 1868 . . .

recognized the right to keep and bear arms as

being among the foundational rights necessary

to our system of Government.

In sum, it is clear that the Framers and

ratifiers of the Fourteenth Amendment

counted the right to keep and bear arms

among those fundamental rights necessary to

our system of ordered liberty.

Id. at 777–78.

B. Second Amendment Right to Keep and Bear Concealed

Arms

In analyzing the meaning of the Second Amendment, the

Supreme Court in Heller and McDonald treated its historical

analysis as determinative. The Court in Heller held that the

PERUTA V. CTY. OF SAN DIEGO 23

Second Amendment, as originally adopted, “codified a pre-

existing right,” 554 U.S. at 592 (emphasis omitted), a “right

inherited from our English ancestors,” id. at 599 (internal

quotation marks omitted). The Court in McDonald held,

further, that this “pre-existing right” was incorporated into the

Fourteenth Amendment, based in substantial part on the

importance attached to the right by a “clear majority” of the

states. In determining whether the Second Amendment

protects the right to carry a concealed weapon in public, we

engage in the same historical inquiry as Heller and

McDonald. As will be seen, the history relevant to both the

Second Amendment and its incorporation by the Fourteenth

Amendment lead to the same conclusion: The right of a

member of the general public to carry a concealed firearm in

public is not, and never has been, protected by the Second

Amendment.

1. History Relevant to the Second Amendment

a. Right to Bear Arms in England

The right to bear arms in England has long been subject

to substantial regulation. In 1299, Edward I directed the

sheriffs of Safford and Shalop to prohibit anyone from “going

armed within the realm without the king’s special licence.”

4 Calendar Of The Close Rolls, Edward I, 1296–1302, at 318

(Sept. 15, 1299, Canterbury) (H.C. Maxwell-Lyte ed., 1906).

Five years later, in 1304, Edward I ordered the sheriff of

Leicester to enforce his prohibition on “any knight, esquire or

other person from . . . going armed in any way without the

king’s licence.” 5 Calendar Of The Close Rolls, Edward I,

1302–1307, at 210 (June 10, 1304, Stirling) (H.C. Maxwell-

Lyte ed., 1908).

24 PERUTA V. CTY. OF SAN DIEGO

In 1308, Edward II ordered the town of Dover to ensure

that “no knight, esquire, or other shall . . . go armed at

Croydon or elsewhere before the king’s coronation.”

1 Calendar Of The Close Rolls, Edward II, 1307–1313, at 52

(Feb. 9, 1308, Dover) (H.C. Maxwell-Lyte ed., 1892). In

1310, he issued a similar order to the sheriff of York,

demanding that the sheriff prohibit any “earl, baron, knight,

or other” from going armed. Id. at 257 (Mar. 20, 1310,

Berwick-on-Tweed). Two years later, in 1312, Edward II

ordered the sheriffs in Warwick and Leicester to seize the

weapons of any that “go armed” without special permission

from the king. Id. at 553 (Oct. 12, 1312, Windsor). These

early prohibitions, targeting particular towns and counties,

and particular actors, foreshadowed a more general

proclamation nearly two decades later, in which Edward II

prohibited “throughout [the King’s] realm” “any one going

armed without [the King’s] licence.” 4 Calendar Of The

Close Rolls, Edward II, 1323–1327, at 560 (Apr. 28, 1326,

Kenilworth) (H.C. Maxwell-Lyte ed., 1892).

In 1328, under Edward III, Parliament enacted the Statute

of Northampton, an expanded version of Edward II’s earlier

prohibition. The Statute provided that

no Man great nor small, of what Condition

soever he be, except the King’s Servants in

his presence, and his Ministers in executing of

the King’s Precepts, or of their Office, and

such as be in their Company assisting them

. . . be so hardy to come before the King’s

Justices, or other of the King’s Ministers

doing their office, with force and arms, nor

bring no force in affray of the peace, nor to go

nor ride armed by night nor by day, in Fairs,

PERUTA V. CTY. OF SAN DIEGO 25

Markets, nor in the presence of the Justices or

other Ministers, nor in no part elsewhere,

upon pain to forfeit their Armour to the King,

and their Bodies to Prison at the King’s

pleasure.

2 Edw. 3, c. 3 (1328). The Statute of Northampton would

become the foundation for firearms regulation in England for

the next several centuries. See Patrick J. Charles, The Faces

of the Second Amendment Outside the Home: History Versus

Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 7–36

(2012) (describing the Statute of Northampton, as well as

English firearms regulation before and after the adoption of

the statute).

The Statute of Northampton was widely enforced. In

1388, for example, Richard II issued to the bailiffs of

Scardburgh an

[o]rder to arrest and imprison until further

order for their deliverance all those who shall

be found going armed within the town,

leading an armed power, making unlawful

assemblies, or doing aught else whereby the

peace may be broken and the people put in

fear . . . as in the statute lately published at

Northampton among other things it is

contained that no man of whatsoever estate or

condition shall be bold to appear armed before

justices or king’s ministers in performance of

their office, lead an armed force in breach of

the peace, ride or go armed by day or night in

fairs and markets or elsewhere in presence of

justices etc. . . .

26 PERUTA V. CTY. OF SAN DIEGO

3 Calendar Of The Close Rolls, Richard II, 1385–1389, at

399–400 (May 16, 1388, Westminster) (H.C. Maxwell-Lyte

ed., 1914). A half-century later, Henry VI issued a similar

order, reminding his subjects of the

statute published in the parliament holden at

Norhampton [sic] in 2 Edward III, wherein it

is contained that no man of whatsoever estate

or condition shall go armed, lead an armed

power in breach of the peace, or ride or pass

armed by day or night in fairs, markets or

elsewhere in the presence of the justices, the

king’s ministers or others under pain of losing

his arms and of imprisonment at the king’s

will . . . .

4 Calendar Of The Close Rolls, Henry VI, 1441–1447, at 224

(May 12, 1444, Westminster) (A.E. Stamp ed., 1937).

John Carpenter’s The White Book of the City of London

published in 1419 — England’s first common law treatise —

documented the continuing authority of the Statute of

Northampton. With narrow exceptions, Carpenter wrote, the

law mandated that “no one, of whatever condition he be, go

armed in the said city or in the suburbs, or carry arms, by day

or by night.” Liber Albus: The White Book Of The City Of

London 335 (Henry Thomas Riley ed., 1861).

In 1541, under the second Tudor king, Henry VIII,

Parliament enacted a statute to stop “shamefull murthers

roberies felonyes ryotts and routs.” 33 Hen. 8, c. 6, § 1

(1541–1542) (Eng.). The statute limited gun ownership to the

wealthy — those who “have lands tents rents fees annuityes

or Offices, to the yearley value of one hundred Pounds.”

PERUTA V. CTY. OF SAN DIEGO 27

33 Hen. 8, c. 6, § 2 (1541–1542) (Eng.). Of particular

importance to the case now before us, the statute expressly

forbade everyone, including the wealthy, from owning or

carrying concealable (not merely concealed) weapons, such

as “little shorte handguns and little hagbutts,” and guns “not

of the lengthe of one whole Yarde or hagbutt or demyhake

beinge not of the lenghe of thre quarters of a Yarde.” Id.; see

Lois G. Schwoerer, To Hold and Bear Arms: The English

Perspective, 76 Chi.-Kent L. Rev. 27, 35–37 (2000–2001)

(discussing the 1541 statute of Henry VIII and related laws).

A half-century later, Elizabeth I continued her father’s

prohibition against concealed weapons. She issued a

proclamation in 1594 emphasizing that the Statute of

Northampton prohibited not just the “open carrying” of

weapons, but also the carrying of “a device to have secretly

small Dagges, commonly called pocket Dags.” By The

Quenne Elizabeth I: A Proclamation Against the Carriage of

Dags, and for Reformation of Some Other Great Disorders

(London, Christopher Barker, 1594). Six years later, she

ordered “all Justices of the Peace” to enforce the Statute

“according to the true intent and meaning of the same,” which

meant a prohibition on the “car[r]ying and use of Gunnes . . .

and especially of Pistols, Birding pieces, and other short

pieces and small shot” that could be easily concealed. By

The Quenne Elizabeth I: A Proclamation Prohibiting The Use

And Cariage Of Dagges, Birding Pieces, And Other Gunnes,

Contrary To Law 1 (London, Christopher Barker 1600).

The first Stuart king, James I, issued a proclamation in

1613, forbidding concealed weapons and reciting that the

“bearing of Weapons covertly . . . hath ever beene . . . straitly

forbidden”:

28 PERUTA V. CTY. OF SAN DIEGO

Whereas the bearing of Weapons covertly, and

specially of short Dagges, and Pistols, (truly termed

of their use, pocket Dagges, that are apparently made

to be carried close, and secret) hath ever beene, and

yet is by the Lawes and policie of this Realme straitly

forbidden as carying with it inevitable danger in the

hands of desperate persons . . . .

By The King James I: A Proclamation Against The Use Of

Pocket-Dags 1 (London, Robert Barker, 1613) (emphases

added). Three years later, James I issued another

proclamation similar to Elizabeth I’s, banning the sale,

wearing, and carrying of “Steelets, pocket Daggers, pocket

Dags and Pistols, which are weapons utterly unserviceable for

defence, Militarie practise, or other lawfull use, but odious,

and noted Instruments of murther, and mischiefe.” By The

King James I: A Proclamation Against Steelets, Pocket

Daggers, Pocket Dagges and Pistols, reprinted in 1 Stuart

Royal Proclamations 359–60 (James F. Larkin & Paul L.

Hughes eds., 1973).

In the late 1600s, in Sir John Knight’s Case, England’s

Attorney General charged John Knight with violating the

Statute of Northampton by “walk[ing] about the streets armed

with guns.” 87 Eng. Rep. 75 (K.B. 1686). After clarifying

that “the meaning of [the Statute of Northampton] was to

punish people who go armed to terrify the King’s subjects,”

id., the Chief Justice acquitted Knight, but only because, as a

government official, he was exempt from the statute’s

prohibition.

In 1694, Lord Coke described the Statute of Northampton

as providing that a man may neither “goe nor ride armed by

night nor by day . . . in any place whatsoever.” The Third

PERUTA V. CTY. OF SAN DIEGO 29

Part of the Institutes of the Laws of England 160, ch. 73

(London, R. Brooke, 1797). Coke recounted the case of Sir

Thomas Figett, who was arrested when he “went armed under

his garments” before a justice of the King’s bench. Id. at

161–62. William Hawkins wrote in 1716 that, under the

Statute of Northampton, “a Man cannot excuse the wearing

[of] such Armour in Publick, by alledging that such a one

threatened him, and that he wears it for the Safety of his

Person from his Assault.” 1 William Hawkins, A Treatise Of

The Pleas Of The Crown 489, ch. 28, § 8 (London, J.

Curwood, 8th ed. 1824). Blackstone, writing in the 1760s,

compared the Statute of Northampton to “the laws of Solon,

[under which] every Athenian was finable who walked about

the city in armour.” 5 William Blackstone, Commentaries on

the Laws of England, edited by St. George Tucker, 149 § 9

(Phila. 1803).

James II, the last of the Stuart kings and England’s last

Catholic monarch, sought to disarm his Protestant subjects.

James II was driven from the throne in 1688 in the Glorious

Revolution. In 1689, under his Protestant successors,

William of Orange (William III) and Mary II, Parliament

enacted the English Bill of Rights, which, as the Court in

Heller recognized, has “long been understood to be the

predecessor to our Second Amendment.” Heller, 554 U.S. at

593. The Bill of Rights provided, with respect to the right to

bear arms, “[t]hat the subjects which are Protestants may have

arms for their defence suitable to their conditions and as

allowed by law.” 1 W. & M., c. 2, § 7, in 3 Eng. Stat. at Large

441 (1689) (emphasis added).

To the degree that the English Bill of Rights is an

interpretive guide to our Second Amendment, the critical

question is the meaning of the phrase “as allowed by law.”

30 PERUTA V. CTY. OF SAN DIEGO

More narrowly, with respect to the case now before us, the

specific question is whether the arms that are “allowed by

law” — that is, the arms Protestants had the right to bear —

included concealed firearms. The history just recounted

demonstrates that carrying concealed firearms in public was

not “allowed by law.” Not only was it generally prohibited

by the Statute of Northampton, but it was specifically

forbidden by the statute enacted under Henry VIII, and by the

later proclamations of Elizabeth I and James I.

The English writer, Granville Sharp, addressed this

precise point in 1782. Sharp is a particularly important

source, given that the Court in Heller cited his treatise as an

authority supporting its understanding of the English Bill of

Rights. See Heller, 554 U.S. at 594. According to Sharp, the

phrase “as allowed by law” referred to pre-existing

restrictions, including the statute passed under Henry VIII

prohibiting concealed arms. Sharp wrote:

[The] latter expression, “as allowed by law,”

respects the limitations in the above-

mentioned act of 33 Hen. VIII c. 6, which

restrain the use of some particular sort of

arms, meaning only such arms as were liable

to be concealed, or otherwise favour the

designs of murderers, as “cross-bows, little

short hand-guns, and little hagbuts,” and all

guns UNDER CERTAIN LENGTHS,

specified in the act . . . .

Tracts, Concerning the Ancient and Only True Legal Means

of National Defence, by a Free Militia 17–18 (3d ed. 1782)

(emphasis in original).

PERUTA V. CTY. OF SAN DIEGO 31

Thus, by the end of the eighteenth century, when our

Second Amendment was adopted, English law had for

centuries consistently prohibited carrying concealed (and

occasionally the even broader category of concealable) arms

in public. The prohibition may be traced back generally to

the Statute of Northampton in 1328, and specifically to the

Act of Parliament under Henry VIII in 1541. The prohibition

was continued in the English Bill of Rights, adopted in 1689,

and was clearly explained by Granville Sharp in 1782, less

than a decade before the adoption of the Second Amendment.

b. Right to Bear Arms in Colonial America

We have found nothing in the historical record suggesting

that the law in the American colonies with respect to

concealed weapons differed significantly from the law in

England. In 1686, the New Jersey legislature, concerned

about the “great abuses” suffered by “several people in the

Province” from persons carrying weapons in public, passed

a statute providing that “no person or persons . . . shall

presume privately to wear any pocket pistol, skeins, stilladers,

daggers or dirks, or other unusual or unlawful weapons within

this Province.” An Act Against Wearing Swords, &c., N.J.

Laws Chap. IX (1689). Other colonies adopted verbatim, or

almost verbatim, English law. For example, in 1692, the

colony and province of Massachusetts Bay authorized the

Justice of the Peace to arrest those who “shall ride or go

armed Offensively before any of Their Majesties Justices . . .

or elsewhere, by Night or by Day, in Fear or Affray of Their

Majesties Liege People.” An Act for the Punishing of

Criminal Offenders, Mass. Laws Chap. XI § 6 (1692).

32 PERUTA V. CTY. OF SAN DIEGO

c. Right to Bear Arms in the States

The Supreme Court in Heller discussed state court

decisions after the adoption of the Second Amendment on the

ground that they showed how the Amendment — and the

right to bear arms generally — was commonly understood in

the years following its adoption. We recognize that these

decisions are helpful in providing an understanding of what

the adopters of the Second Amendment intended, but we

postpone our discussion to the next section, for they are even

more helpful in providing an understanding what the adopters

of the Fourteenth Amendment intended.

2. History Relevant to the Fourteenth Amendment

a. Pre-amendment History

Following the lead of the Supreme Court in both Heller

and McDonald, we look to decisions of state courts to

determine the scope of the right to keep and bear arms as that

right was understood by the adopters of the Fourteenth

Amendment. With only one exception — and a short-lived

exception at that — state courts before the Civil War

unanimously concluded that members of the general public

could be prohibited from carrying concealed weapons.

In State v. Mitchell, 3 Blackf. 229 (Ind. 1833), the

Supreme Court of Indiana, in a one-sentence opinion, upheld

a state statute prohibiting the general public from carrying

concealed weapons: “It was held in this case, that the statute

of 1831, prohibiting all persons, except travelers, from

wearing or carrying concealed weapons, is not

unconstitutional.” Id. at 229 (emphasis in original).

PERUTA V. CTY. OF SAN DIEGO 33

In State v. Reid, 1 Ala. 612 (1840), the defendant had

been convicted of violating a statute prohibiting any person

from “carry[ing] concealed about his person, any species of

fire arms, or any Bowie knife, Arkansaw tooth pick, or any

other knife of the like kind, dirk, or any other deadly

weapon.” Id. at 614. The Supreme Court of Alabama upheld

the statute against a challenge under the state constitution. It

based its analysis in substantial part on its conclusion that the

English Bill of Rights did not protect a right to carry

concealed weapons. The court wrote:

The evil which was intended to be remedied

[by the English Bill of Rights] was a denial of

the right of Protestants to have arms for their

defence, and not an inhibition to wear them

secretly.

Id. at 615 (emphasis added). The court defended the

Alabama statute on practical as well as legal grounds:

[A] law which is intended merely to promote

personal security, and to put down lawless

aggression and violence, and to that end

inhibits the wearing of certain weapons, in

such a manner as is calculated to exert an

unhappy influence upon the moral feelings of

the wearer, by making him less regardful of

the personal security of others, does not come

in collision with the constitution.

Id. at 617.

In Aymette v. State, 21 Tenn. 154 (1840), a jury convicted

the defendant of wearing a bowie knife concealed under his

34 PERUTA V. CTY. OF SAN DIEGO

clothes. The defendant contended that the conviction violated

a Tennessee constitutional provision stating that “free white

men of this State have a right to keep and bear arms for their

common defence.” Id. at 156. The Tennessee Supreme

Court interpreted the English Bill of Rights, as well as the

Tennessee constitution, as protecting a group right to engage

in military action rather than an individual right to self-

defense:

When, therefore, Parliament says that

“subjects which are Protestants may have

arms for their defence, suitable to their

condition, as allowed by law,” it does not

mean for private defence, but, being armed,

they may as a body rise up to defend their just

rights, and compel their rulers to respect the

laws.

Id. at 157. In the view of the court, concealable weapons did

not come within the scope of either the English Bill of Rights

or the state constitution:

The Legislature, therefore, have a right to

prohibit the wearing or keeping [of] weapons

dangerous to the peace and safety of the

citizens, and which are not usual in civilized

warfare, or would not contribute to the

common defence.

Id. at 159.

In State v. Buzzard, 4 Ark. 18, 19 (1842), the trial court

quashed an indictment alleging violation of a state statute

providing that “every person who shall wear any pistol, dirk,

PERUTA V. CTY. OF SAN DIEGO 35

butcher or large knife, or a sword in a cane, concealed as a

weapon, unless upon a journey, shall be adjudged guilty of a

misdemeanor.” The Arkansas Supreme Court reversed. Even

though the Fourteenth Amendment had not yet been adopted,

the court believed that the statute was properly challenged

under both the Second Amendment and the state constitution.

The court held that the statute violated neither the federal nor

the state constitution. In upholding the statute, Justice

Dickinson wrote that the purpose of the two constitutional

provisions was to provide “adequate means for the

preservation and defense of the State and her republican

institutions.” Id. at 27.

The act in question does not, in my judgment,

detract anything from the power of the people

to defend their free state and the established

institutions of the country. It inhibits only the

wearing of certain arms concealed.

Id.

In Nunn v. State, 1 Ga. 243 (1846), the defendant was

charged with carrying a pistol, but the indictment did not

specify that he carried it “secretly.” An 1837 state statute

criminalized carrying concealed weapons, but allowed open

carry. Like the Arkansas Supreme Court in Buzzard, the

Georgia Supreme Court addressed the statute under both the

Second Amendment and the state constitution. The court

discussed extensively the right to bear arms, writing that the

Second Amendment

assigns as a reason why this right [to keep and

bear arms] shall not be interfered with, or in

any manner abridged, that the free enjoyment

36 PERUTA V. CTY. OF SAN DIEGO

of it will prepare and qualify a well-regulated

militia, which are necessary to the security of

a free State.

Id. at 250 (emphasis in original). The court concluded that

insofar as it prohibited the carrying of concealed weapons, the

statute was constitutional:

We are of the opinion . . . that so far as the act

of 1837 seeks to suppress the practice of

carrying certain weapons secretly, that it is

valid, inasmuch as it does not deprive the

citizen of his natural right of self-defense, or

of his constitutional right to keep and bear

arms.

Id. at 251 (emphasis in original). However, because the

indictment failed to allege that the defendant had carried his

pistol in a concealed manner, the court dismissed it. See Saul

Cornell, The Right to Carry Firearms Outside of the Home:

Separating Historical Myths from Historical Realities,

39 Fordham Urb. L.J. 1695, 1716–26 (2011–2012)

(discussing Nunn and the emergence of public carry

regulation outside the south).

In State v. Chandler, 5 La. Ann. 489 (1850), the defendant

argued that the trial judge should have instructed the jury that

it was not a crime in Louisiana to carry a concealed weapon

because the Second Amendment guaranteed to citizens the

right to bear arms. The Louisiana Supreme Court rejected the

argument, holding that a law prohibiting concealed weapons

did not violate the Amendment:

PERUTA V. CTY. OF SAN DIEGO 37

The [Louisiana statute] makes it a

misdemeanor to be “found with a concealed

weapon, such as a dirk, dagger, knife, pistol,

or any other deadly weapon concealed in his

bosom, coat, or any other place about him,

that does not appear in full open view.” This

law became absolutely necessary to

counteract a vicious state of society, growing

out of the habit of carrying concealed

weapons, and to prevent bloodshed and

assassinations committed upon unsuspecting

persons. It interfered with no man’s right to

carry arms . . . “in full open view,” which

places men upon an equality. 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.

Id. at 489–90.

The only exception to this otherwise uniform line of cases

is Bliss v. Commonwealth, 12 Ky. 90 (1822), in which the

Kentucky Court of Appeals, by a vote of two to one, struck

down a state statute prohibiting the wearing of “a pocket

pistol, dirk, large knife, or sword in a cane, concealed as a

weapon.” Id. at 90. The court held that the statute violated

Article 10, § 23 of Kentucky’s constitution, which provided

that “the right of the citizens to bear arms in defense of

themselves and the state, shall not be questioned.” Id. The

court wrote:

38 PERUTA V. CTY. OF SAN DIEGO

[I]n principle, there is no difference between

a law prohibiting the wearing concealed arms,

and a law forbidding the wearing such as

are exposed; and if the former be

unconstitutional, the latter must be so

likewise.

Id. at 92.

The court’s decision in Bliss was soon attacked, and was

overruled over a decade before the Civil War. In 1837,

Governor James Clark, deeply concerned about the

“bloodshed and violence” caused by concealed weapons in

the wake of Bliss, called on the Kentucky legislature to pass

a new statute banning the practice. The Kentucky legislative

committee that received the Governor’s message criticized

the court for reading the state constitution too literally. See

Robert M. Ireland, The Problem of Concealed Weapons in

Nineteenth-Century Kentucky, 91 Reg. Ky. Hist. Soc’y 370,

373 (1993). In 1849, a Kentucky constitutional convention

adopted without debate a provision authorizing the

legislature to “pass laws to prevent persons from carrying

concealed arms.” Ky. Const. art. XIII, § 25. Then, in 1854,

the Kentucky legislature passed a new statute prohibiting the

concealed carry of “any deadly weapons other than an

ordinary pocket knife.” An Act to prohibit the carrying of

concealed weapons, Mar. 10, 1853, Ky. Acts, Chap. 1020

(1854).

The Supreme Court stated in Heller that “the majority of

the 19th-century courts to consider the question held that

prohibitions on carrying concealed weapons were lawful

under the Second Amendment or state analogues.” 554 U.S.

at 626 (emphasis added). The Court substantially understated

PERUTA V. CTY. OF SAN DIEGO 39

the matter. As just noted, with the exception of Bliss, those

pre-Civil War state courts that considered the question all

upheld prohibitions against concealed weapons. Four of the

six courts upholding prohibitions specifically discussed, and

disagreed with, Bliss. See Reid, 1 Ala. at 617–20; Aymette,

21 Tenn. at 160–61; Buzzard, 4 Ark. at 25–26; Nunn, 1 Ga. at

247–48. Moreover, the two-to-one Bliss decision did not last.

Bliss was decided in 1822; a state constitutional amendment

was adopted in 1849 to overturn Bliss; the legislature then

passed a statute in 1854 outlawing concealed weapons.

The Supreme Court wrote in McDonald that a “clear

majority of the States in 1868 . . . recognized the right to keep

and bear arms as being among the foundational rights

necessary to our system of Government.” 561 U.S. at 777

(emphasis added). Based in substantial part on its

understanding of the “clear majority” of states, the Court held

that the adopters of the Fourteenth Amendment intended to

incorporate the right to bear arms preserved by the Second

Amendment. As just seen, an overwhelming majority of the

states to address the question — indeed, after 1849, all of the

states to do so — understood the right to bear arms, under

both the Second Amendment and their state constitutions, as

not including a right to carry concealed weapons in public.

b. Post-Amendment History

The Supreme Court in Heller discussed the decisions of

early 19th century courts after the adoption of the Second

Amendment, on the ground that they were relevant to

understanding the intent of the eighteenth century adopters of

the Amendment. 554 U.S. at 605–14. We follow the Court’s

lead with respect to the Fourteenth Amendment and discuss

decisions after its adoption.

40 PERUTA V. CTY. OF SAN DIEGO

The pre-Civil War consensus about the meaning of the

right to keep and bear arms continued after the war and the

adoption of the Fourteenth Amendment. The post-war

constitutions of five states explicitly stated that the right to

carry concealed weapons could be prohibited by the

legislature. N.C. Const. of 1868, art. I, § 24 (1875) (“A well-

regulated militia being necessary to the security of a free

State, the right of the people to keep and bear arms shall not

be infringed; . . . Nothing herein contained shall justify the

practice of carrying concealed weapons, or prevent the

Legislature from enacting penal statutes against said

practice.”); Colo. Const. art. II, § 13 (1876) (“The right of no

person to keep and bear arms in defense of his home, person

and property, or in aid of the civil power when thereto legally

summoned, shall be called in question; but nothing herein

contained shall be construed to justify the practice of carrying

concealed weapons.” ); La. Const. of 1879, art. III (“A well

regulated militia being necessary to the security of a free

State, the right of the people to keep and bear arms shall not

be abridged. This shall not prevent the passage of laws to

punish those who carry weapons concealed.”); Mont. Const.

of 1889, art. II, § 12 (“The right of any person to keep or bear

arms in defense of his own home, person, and property, or in

aid of the civil power when thereto legally summoned, shall

not be called in question, but nothing herein contained shall

be held to permit the carrying of concealed weapons.”); Miss.

Const. art. III, § 12 (1890) (“The right of every citizen to

keep and bear arms in defense of his home, person, or

property, or in aid of the civil power when thereto legally

summoned, shall not be called in question, but the legislature

may regulate or forbid carrying concealed weapons.”). See

generally David B. Kopel, The Second Amendment in the

Nineteenth Century, 1998 BYU L. Rev. 1359, 1410 n. 190

(1998).

PERUTA V. CTY. OF SAN DIEGO 41

The post-war constitutions of another six states, while not

explicitly granting to the legislatures the authority to prohibit

concealed weapons, gave state legislatures broad power to

regulate the manner in which arms could be carried. See Ga.

Const. of 1868, art. I, § 14 (“A well-regulated militia being

necessary to the security of a free people, the right of the

people to keep and bear arms shall not be infringed; but the

general assembly shall have power to prescribe by law the

manner in which arms may be borne.”); Tex. Const. of 1868,

art. I, § 13 (“Every person shall have the right to keep and

bear arms in the lawful defence of himself or the State, under

such regulations as the legislature may prescribe.”); Tenn.

Const. art. I, § 26 (1870) (“That the citizens of this State have

a right to keep and to bear arms for their common defense;

but the Legislature shall have power, by law, to regulate the

wearing of arms with a view to prevent crime.”); Fla. Const.

of 1885, art. I, § 20 (“The right of the people to bear arms in

defence of themselves and the lawful authority of the State,

shall not be infringed, but the Legislature may prescribe the

manner in which they may be borne.”); Idaho Const. of 1889,

art. I, § 11 (“The people have the right to bear arms for their

security and defense; but the Legislature shall regulate the

exercise of this right by law.”); Utah Const. of 1896, art. I,

§ 6 (“The people have the right to bear arms for their security

and defense, but the legislature may regulate the exercise of

this right by law.”). See generally Eugene Volokh, State

Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev.

of L. & Pol. 191, 192–217 (2006) (collecting state

constitutional provisions). In these states, the legislatures of

Georgia and Tennessee had already passed statutes

prohibiting concealed weapons, and the supreme courts of

those states, in Nunn and Aymette, had already upheld the

statutes against constitutional challenges. Aymette, 21 Tenn.

154; Nunn, 1 Ga. 243. As will be seen in a moment, the

42 PERUTA V. CTY. OF SAN DIEGO

Texas legislature would soon pass a statute prohibiting

concealed weapons, and that statute, too, would be upheld.

Two state courts and one territorial court upheld

prohibitions against carrying concealable (not just concealed)

weapons in the years following the adoption of the Fourteenth

Amendment. In English v. State, 35 Tex. 473 (1871), a Texas

statute “regulating, and in certain cases prohibiting, the

carrying of deadly weapons,” including “pistols, dirks,

daggers, slungshots, swordcanes, spears, brass-knuckles and

bowie knives,” id. at 474, was challenged under the Second

Amendment, as well as under an analogous provision of the

Texas constitution. The Texas Supreme Court upheld the

statute. The court construed “arms” in the Second

Amendment and the Texas constitution as referring only to

weapons “used for purposes of war.” Id. at 475. The court

wrote:

To refer the deadly devices and

instruments called in the statute “deadly

weapons,” to the proper or necessary arms of

a “well-regulated militia,” is simply

ridiculous. No kind of travesty, however

subtle or ingenious, could so misconstrue this

provision of the constitution of the United

States, as to make it cover and protect that

pernicious vice, from which so many murders,

assassinations, and deadly assaults have

sprung, and which it was doubtless the

intention of the legislature to punish and

prohibit.

Id. at 476.

PERUTA V. CTY. OF SAN DIEGO 43

In State v. Workman, 14 S.E. 9, 11 (W. Va. 1891), a West

Virginia statute prohibited carrying, whether openly or

concealed, “any revolver or other pistol, dirk, bowie-knife,

razor, slung-shot, billy, metallic or other false knuckles, or

any other dangerous or deadly weapon of like kind or

character.” The statute exempted from the prohibition a

person who is “a quiet and peaceable citizen, of good

character and standing in the community in which he lives,”

and who had “good cause to believe, and did believe, that he

was in danger of death or great bodily harm at the hands of

another person.” Id. at 9. Defendant was convicted under the

statute because he failed to prove that he was of good

character, despite the fact that he had been in clear and

immediate danger of death from a particular individual. Id.

at 10. Defendant contended that the statute violated the

Second Amendment. Id. at 11. The West Virginia Supreme

Court upheld the statute on the ground that the Amendment

protected only the right to carry weapons of war:

[I]n regard to the kind of arms referred to in

the amendment, it must be held to refer to the

weapons of warfare to be used by the militia,

such as swords, guns, rifles, and muskets, —

arms to be used in defending the state and

civil liberty, — and not to pistols, bowie-

knife, brass knuckles, billies, and such other

weapons as are usually employed in brawls,

street fights, duels, and affrays, and are only

habitually carried by bullies, blackguards, and

desperadoes, to the terror of the community

and the injury of the state.

Id.

44 PERUTA V. CTY. OF SAN DIEGO

In Walburn v. Territory, 59 P. 972 (Okla. 1899), the

defendant was convicted of “carrying a revolver on his

person.” The Supreme Court of the Territory of Oklahoma

sustained the law under which the defendant had been

convicted. “[W]e are of the opinion that the statute violates

none of the inhibitions of the constitution of the United

States, and that its provisions are within the police power of

the territory.” Id. at 973.

Finally, and perhaps most importantly, in Robertson v.

Baldwin, 165 U.S. 275 (1897), the United States Supreme

Court made clear that it, too, understood the Second

Amendment as not protecting the right to carry a concealed

weapon. The Court wrote:

[T]he first 10 amendments to the constitution,

commonly known as the “Bill of Rights,”

were not intended to lay down any novel

principles of government, but simply to

embody certain guaranties and immunities

which we had inherited from our English

ancestors, and which had, from time

immemorial, been subject to certain well-

recognized exceptions, arising from the

necessities of the case. In incorporating these

principles into the fundamental law, there was

no intention of disregarding the exceptions,

which continued to be recognized as if they

had been formally expressed. Thus . . . the

right of the people to keep and bear arms

(article 2) is not infringed by laws prohibiting

the carrying of concealed weapons[.]

Id. at 281–82.

PERUTA V. CTY. OF SAN DIEGO 45

3. No Second Amendment Right to Carry Concealed

Weapons

The historical materials bearing on the adoption of the

Second and Fourteenth Amendments are remarkably

consistent. Under English law, the carrying of concealed

weapons was specifically prohibited since at least 1541. The

acknowledged predecessor to the Second Amendment, the

1689 English Bill of Rights, protected the rights of

Protestants to have arms, but only those arms that were

“allowed by law.” Concealed weapons were not “allowed by

law,” but were, instead, flatly prohibited. In the years after

the adoption of the Second Amendment and before the

adoption of the Fourteenth Amendment, the state courts that

considered the question nearly universally concluded that

laws forbidding concealed weapons were consistent with both

the Second Amendment and their state constitutions. The

only exception was Kentucky, whose court of appeals held to

the contrary in a two-to-one decision based on its state

constitution. Kentucky thereafter amended its constitution to

overturn that result. In the decades immediately after the

adoption of the Fourteenth Amendment, all of the state courts

that addressed the question upheld the ability of their state

legislatures to prohibit concealed weapons. Finally, the

United States Supreme Court unambiguously stated in 1897

that the protection of the Second Amendment does not extend

to “the carrying of concealed weapons.” Baldwin, 165 U.S.

at 282.

We therefore conclude that the Second Amendment right

to keep and bear arms does not include, in any degree, the

right of a member of the general public to carry concealed

firearms in public. In so holding, we join several of our sister

circuits that have upheld the authority of states to prohibit

46 PERUTA V. CTY. OF SAN DIEGO

entirely or to limit substantially the carrying of concealed or

concealable firearms. See Peterson v. Martinez, 707 F.3d

1197 (10th Cir. 2013) (right to carry concealed weapons does

not fall within the Second Amendment’s scope); Woollard v.

Gallagher, 712 F.3d 865 (4th Cir. 2013) (Maryland

requirement that handgun permits be issued only to

individuals with “good and substantial reason” to wear, carry,

or transport a handgun does not violate Second Amendment);

Drake v. Filko, 724 F.3d 426, 429–30 (3d Cir. 2013) (New

Jersey “justifiable need” restriction on carrying handguns in

public “does not burden conduct within the scope of the

Second Amendment’s guarantee”); Kachalsky v. Cty. of

Westchester, 701 F.3d 81 (2d Cir. 2012) (New York “proper

cause” restriction on concealed carry does not violate Second

Amendment).

Our holding that the Second Amendment does not protect

the right of a member of the general public to carry concealed

firearms in public fully answers the question before us.

Because the Second Amendment does not protect in any

degree the right to carry concealed firearms in public, 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. There may or may not be a Second Amendment

right for a member of the general public to carry a firearm

openly in public. The Supreme Court has not answered that

question, and we do not answer it here.

V. Intervention by the State of California

The State of California moved to intervene in Peruta after

Sheriff Gore of San Diego County declined to petition for

rehearing en banc. Plaintiffs did not oppose intervention by

PERUTA V. CTY. OF SAN DIEGO 47

the State. As recounted at the beginning of this opinion,

however, a divided panel denied the State’s motion. We

disagree and grant the motion.

Under Federal Rule of Civil Procedure 24(a)(2), a party

may intervene as of right if

(1) it has a significant protectable interest

relating to the subject of the action; (2) the

disposition of the action may, as a practical

matter, impair or impede its ability to protect

its interest; (3) the application is timely; and

(4) the existing parties may not adequately

represent its interest.

Day v. Apoliona, 505 F.3d 963, 965 (9th Cir. 2007) (citation,

internal quotation marks, and alterations omitted); see also

Fed. R. Civ. P. 24(a)(2).

There is no question that California has a significant

interest in Peruta (and, indeed, in Richards). As the panel

majority noted, Plaintiffs “focuse[d] [their] challenge on [the

counties’] licensing scheme for concealed carry.” Peruta,

742 F. 3d at 1171. But the panel majority construed the

challenge as an attack on “the constitutionality of

[California’s] entire [statutory] scheme.” Id. at 1171; see also

id. at 1169 (assessing whether “the California scheme

deprives any individual of his constitutional rights” (emphasis

added)). While Plaintiffs’ original challenge to the county

policies did not appear to implicate the entirety of

California’s statutory scheme, the panel opinion unmistakably

did.

48 PERUTA V. CTY. OF SAN DIEGO

The panel opinion in Peruta, if left intact, would have

substantially impaired California’s ability to regulate

firearms. A key premise of the opinion was that the Second

Amendment requires the states to “permit some form of carry

for self-defense outside the home.” Id. at 1172 (emphasis in

original). Though California’s statutory scheme permits

many residents, in many contexts, to carry a firearm outside

the home, it does not permit law-abiding residents of sound

mind to do so without a particularized interest in self-defense.

Under the circumstances presented here, we conclude that

California’s motion to intervene was timely. To determine

whether a motion to intervene is timely, we consider “(1) the

stage of the proceeding at which an applicant seeks to

intervene; (2) the prejudice to other parties; and (3) the reason

for and length of the delay.” United States v. Alisal Water

Corp., 370 F.3d 915, 921 (9th Cir. 2004) (internal quotation

marks omitted). We recognize that California sought to

intervene at a relatively late stage in the proceeding. But the

timing of California’s motion to intervene did not prejudice

Plaintiffs; indeed, Plaintiffs did not, and do not, oppose the

State’s intervention. Equally important, California had no

strong incentive to seek intervention in Peruta at an earlier

stage, for it had little reason to anticipate either the breadth of

the panel’s holding or the decision of Sheriff Gore not to seek

panel rehearing or rehearing en banc.

Our conclusion that California’s motion to intervene was

timely is consistent with our decision in Apoliona, in which

the State of Hawai’i had made an argument, as amicus curiae

before the district court, that the defendants had chosen not

to make. 505 F.3d at 964. The district court agreed with

Hawai’i’s argument, but we reversed, holding that the

argument was foreclosed by circuit precedent. Id. Hawai’i

PERUTA V. CTY. OF SAN DIEGO 49

moved to intervene as a party in order to file a petition for

rehearing en banc. Id. Notwithstanding the fact that “the

state was aware of the litigation and that the litigation had the

potential to affect its interests,” we granted the motion. Id. at

966. Permitting Hawai’i to intervene, we wrote, “will not

create delay by injecting new issues into the litigation, but

instead will ensure that our determination of an already

existing issue is not insulated from review simply due to the

posture of the parties.” Id. at 965 (citation, internal quotation

marks, and alterations omitted).

If we do not permit California to intervene as a party in

Peruta, there is no party in that case that can fully represent

its interests. At trial and on appeal, attorneys representing

Sheriff Gore ably defended San Diego County’s

interpretation of the good cause requirement. But after the

panel decision was issued, Sheriff Gore informed the court

that he would neither petition for rehearing en banc nor

defend the county’s position in en banc proceedings.

California then appropriately sought to intervene in order to

fill the void created by the late and unexpected departure of

Sheriff Gore from the litigation.

VI. Response to Dissents

Our colleagues Judges Callahan, Silverman and N.R.

Smith have each written dissenting opinions. We consider

Judge Callahan’s opinion to be the principal dissent because

its argument provides an essential premise for the other two.

None of the dissents contends that there is a free-standing

Second Amendment right for a member of the general public

to carry a concealed weapon in public. Nor do they make any

effort to contradict or undermine any of the historical

50 PERUTA V. CTY. OF SAN DIEGO

evidence showing that the carrying of concealed weapons was

consistently forbidden in England beginning in 1541; was

consistently forbidden in the American colonies; and was

consistently forbidden by the states (with the sole and short-

lived exception of Kentucky) both before and after the Civil

War. Nor do they dispute that the United States Supreme

Court in 1897 clearly stated that carrying concealed weapons

was not protected by the Second Amendment. Robertson v.

Baldwin, 165 U.S. 275, 281–82 (1897) (“[T]he right of the

people to keep and bear arms (article 2) is not infringed by

laws prohibiting the carrying of concealed weapons[.]”).

The argument of the principal dissent begins with the

premise that Plaintiffs, as members of the general public,

have a Second Amendment right to carry firearms in public

as a means of self-defense. Principal Diss. at 66. The

principal dissent characterizes California’s restrictions on

open carry as effectively prohibiting open carry. It concludes

that when California’s restrictions on open and concealed

carry are considered together, they violate the Second

Amendment: “In the context of California’s choice to prohibit

open carry, the counties’ policies regarding the licensing of

concealed carry are tantamount to complete bans on the

Second Amendment right to bear arms outside the home for

self-defense, and are therefore unconstitutional.” Id. at

69–70. Therefore, according to the principal dissent,

California’s restrictions on concealed carry violate the

Second Amendment. Judge N.R. Smith’s dissent agrees with

this argument, emphasizing the “context” of Plaintiffs’

challenge to California’s restrictions on concealed carry.

The argument of the principal dissent is based on a logical

fallacy. Even construing the Second Amendment as

protecting the right of a member of the general public to carry

PERUTA V. CTY. OF SAN DIEGO 51

a firearm in public (an issue we do not decide), and even

assuming that California’s restrictions on public open carry

violate the Second Amendment so construed (an issue we

also do not decide), it does not follow that California’s

restrictions on public concealed carry violate the Amendment.

As the uncontradicted historical evidence overwhelmingly

shows, the Second Amendment does not protect, in any

degree, the right of a member of the general public to carry a

concealed weapon in public. The Second Amendment may

or may not protect to some degree a right of a member of the

general public to carry a firearm in public. If there is such a

right, it is only a right to carry a firearm openly. But

Plaintiffs do not challenge California’s restrictions on open

carry; they challenge only restrictions on concealed carry.

If there is a Second Amendment right of a member of the

general public to carry a firearm openly in public, and if that

right is violated, the cure is to apply the Second Amendment

to protect that right. The cure is not to apply the Second

Amendment to protect a right that does not exist under the

Amendment.

VII. Agreement with the Concurrence

Our colleague Judge Graber concurs fully in our opinion,

but writes separately “to state that, even if we assume that the

Second Amendment applied to the carrying of concealed

weapons in public, the provisions at issue would be

constitutional.” Graber, J., concurrence at 52. Even if we

assume that the Second Amendment applies, California’s

regulation of the carrying of concealed weapons in public

survives intermediate scrutiny because it “promotes a

substantial government interest that would be achieved less

52 PERUTA V. CTY. OF SAN DIEGO

effectively absent the regulation.” Id. at 58 (internal

quotation marks omitted). For the reasons given in our

opinion, we do not need to reach the question addressed by

the concurrence. But if we were to reach that question, we

would entirely agree with the answer the concurrence

provides.

Conclusion

We hold that the Second Amendment does not protect, in

any degree, the carrying of concealed firearms by members

of the general public. This holding resolves the Second

Amendment question presented in this case. It also

necessarily resolves, adversely to Plaintiffs, their derivative

claims of prior restraint, equal protection, privileges and

immunities, and due process. In light of our holding, we need

not, and do not, answer the question of whether or to what

degree the Second Amendment might or might not protect a

right of a member of the general public to carry firearms

openly in public.

We AFFIRM the judgments of the district courts in both

cases.

GRABER, Circuit Judge, with whom THOMAS, Chief

Judge, and MCKEOWN, Circuit Judge, join, concurring:

I concur fully in the majority opinion. I write separately

only to state that, even if we assume that the Second

Amendment applied to the carrying of concealed weapons in

public, the provisions at issue would be constitutional. Three

of our sister circuits have upheld similar restrictions under

PERUTA V. CTY. OF SAN DIEGO 53

intermediate scrutiny. Such restrictions strike a permissible

balance between “granting handgun permits to those persons

known to be in need of self-protection and precluding a

dangerous proliferation of handguns on the streets.”

Woollard v. Gallagher, 712 F.3d 865, 881 (4th Cir. 2013);

see also Drake v. Filko, 724 F.3d 426, 431–32 (3d Cir. 2013)

(assuming that the Second Amendment applies and upholding

New Jersey’s “justifiable need” restriction on carrying

handguns in public); Kachalsky v. County of Westchester,

701 F.3d 81, 89, 97 (2d Cir. 2012) (assuming that the Second

Amendment applies and upholding New York’s “proper

cause” restriction on the concealed carrying of firearms). If

restrictions on concealed carry of weapons in public are

subject to Second Amendment analysis, we should follow the

approach adopted by our sister circuits.

Judge Silverman’s dissent acknowledges the “significant,

substantial, and important interests in promoting public safety

and reducing gun violence.” (Dissent at 81–82.) He

contends, though, that Defendants have failed to demonstrate

“a reasonable fit” between the challenged licensing criteria

and the government’s objectives. (Dissent at 82.) I disagree.

Judge Silverman points to evidence cited by two amici

“showing that concealed-carry license holders are

disproportionately less likely to commit crimes . . . than the

general population.” (Dissent at 83–84 (citing Amicus Brief

for the Governors of Texas, Louisiana, Maine, Mississippi,

Oklahoma, and South Dakota at pp. 10–15; and Amicus Brief

for International Law Enforcement Educators and Trainers

Association, et al., at pp. 22–26.)) There are, however, at

least two reasons to question the relevance of those studies.

54 PERUTA V. CTY. OF SAN DIEGO

First, even accepting Judge Silverman’s premise,

lawmakers are entitled to weigh the severity of the risk as

well as the likelihood of its occurrence. Indeed, examples

abound of “law-abiding citizens” in the seven states studied

who place the public safety in jeopardy. In Florida, a state

touted in the second of the cited amicus briefs, a “law-

abiding” holder of a concealed-weapons permit shot and

killed another person in 2014 in a movie theater after an

argument over texting and popcorn. Amicus Brief for the

Law Center to Prevent Gun Violence and Marin County

Sheriff Robert Doyle In Support of Appellees’ Petition for

Rehearing En Banc at 13. Two years earlier, another

concealed-carry permit holder in Florida fatally shot someone

after an argument over loud music in a gas station’s parking

lot. Id. In Arizona, a qualified handgun carrier shot 19

people, including a congresswoman and a federal judge,

outside a supermarket in 2011. Id. Those shooters all were

legally entitled to carry their concealed firearms, which they

used to kill others. Sadly, those incidents are not anomalies.

Nationwide, since May 2007, concealed-carry permit holders

have shot and killed at least 17 law enforcement officers and

more than 800 private citizens—including 52 suicides.

Concealed Carry Killers, Violence Policy Center,

www.concealedcarrykillers.org (last visited Apr. 6, 2016).

Thus, even if we assume that each and every one of those

tragedies was less likely to occur because of the shooter’s

prior status as a “law-abiding citizen,” that does not mean that

a state legislature’s regulation of concealed carry fails to

address the problem in a reasonable way.

Second, to the extent that concealed-carry license holders

are, in fact, less likely to commit crimes, their relative

peacefulness may result from (and not exist in spite of) the

restrictions that are disputed in this case. For example, in

PERUTA V. CTY. OF SAN DIEGO 55

Delaware, five upstanding citizens must swear that carrying

a concealed deadly weapon is necessary for the protection of

the applicant, the applicant’s property, or both. 11 Del. Code

Ann. § 1441(a)(2). In Maryland, the applicant must show

that he or she has a “good and substantial reason to wear,

carry, or transport a handgun.” Md. Code Ann., Pub. Safety

§ 5-306(a)(6)(i). In Hawaii, a concealed-carry permit may be

issued only “[i]n an exceptional case, when an applicant

shows reason to fear injury to the applicant’s person or

property.” Haw. Rev. Stat. § 134-9(a). In New York, a

person seeking a license to carry a concealed handgun must

show “proper cause,” N.Y. Penal Law § 400.00(2)(f); and, in

New Jersey, the applicant must demonstrate “that he has a

justifiable need to carry a handgun,” N.J. Stat. Ann. § 2C:58-

4. Rhode Island and the District of Columbia require the

applicant to show that he or she is a “suitable person” and has

a “reason,” such as “fear[ing] an injury to his or her person or

property,” for carrying a firearm. Mass. Gen. Laws ch. 140,

§ 131(d); 1956 R.I. Gen. Laws § 11-47-11(a); D.C. Code

§ 22-4506(a). In other words, it may be the heightened

restrictions on concealed-carry permits in many

jurisdictions—the very provisions challenged in this

case—that cause statistically reduced violence by permit

holders.

Of equal importance, the studies to which Judge

Silverman alludes are not the only side of the story. Much

respected evidence is to the contrary. Several studies suggest

that “the clear majority of states” that enact laws broadly

allowing concealed carrying of firearms in public “experience

increases in violent crime, murder, and robbery when [those]

laws are adopted.” John J. Donohue, The Impact of

Concealed-Carry Laws, in Evaluating Gun Policy Effects on

Crime and Violence 287, 320 (2003), available at

56 PERUTA V. CTY. OF SAN DIEGO

http://www.brookings.edu/~/media/press/books/2003/evalu

atinggunpolicy/evaluatinggunpolicy_chapter.pdf; see also

Jens Ludwig, Concealed-Gun-Carrying Laws and Violent

Crime: Evidence from State Panel Data, 18 Int’l Rev. L. &

Econ. 239, 239 (1998) (noting that laws broadly allowing

concealed carrying of weapons “have resulted, if anything, in

an increase in adult homicide rates”), available at

h t t p : / / h o m e . u c h i c a g o . e d u / l u d w i g j / p a p e r s / IJ LE -

ConcealedGunLaws-1998.pdf; David McDowall et al.,

Easing Concealed Firearms Laws: Effects on Homicide in

Three States, 86 J. Crim. L. & Criminology 193, 202–03

(1995) (noting that, in the aftermath of relaxed concealed-

carry laws, “firearms homicides increased” while “homicides

without guns remained steady,” and concluding that weaker

firearms regulation may “raise levels of firearms murders”),

available at http://scholarlycommons.law.northwestern.edu/

cgi/viewcontent.cgi?article=6855&context=jclc.

Similarly, some studies suggest that “policies to

discourage firearms in public may help prevent violence.”

McDowall et al., Easing Concealed Firearms Laws at 203.

A study of prisoners incarcerated for gun offenses, for

example, found that two-thirds of those prisoners “reported

that the chance of running into an armed victim was very or

somewhat important in their own choice to use a gun.” Philip

Cook et al., Gun Control After Heller: Threats and

Sideshows From a Social Welfare Perspective, 56 U.C.L.A.

L. Rev. 1041, 1081 (2009). The study continues:

Currently, criminals use guns in only about 25

percent of noncommercial robberies and 4

percent of assaults. If increased gun carrying

among potential victims causes criminals to

carry guns more often themselves, or become

PERUTA V. CTY. OF SAN DIEGO 57

quicker to use guns to avert armed self-

defense, the end result could be that street

crime becomes more lethal.

Id. (footnote omitted).

Clearly, social scientists disagree about the practical

effect of modest restrictions on concealed carry of firearms.

In the face of that disagreement, and in the face of

inconclusive evidence, we must allow the government to

select among reasonable alternatives in its policy decisions.

As the Second Circuit explained, in upholding a requirement

that an applicant show an objective threat to personal safety,

or a special need for self-protection, to obtain a concealed-

carry license for a handgun:

To be sure, we recognize the existence of

studies and data challenging the relationship

between handgun ownership by lawful

citizens and violent crime. We also recognize

that many violent crimes occur without any

warning to the victims. But New York also

submitted studies and data demonstrating that

widespread access to handguns in public

increases the likelihood that felonies will

result in death and fundamentally alters the

safety and character of public spaces. It is the

legislature’s job, not ours, to weigh

conflicting evidence and make policy

judgments.

Kachalsky, 701 F.3d at 99; see also Woollard, 712 F.3d at

876–82 (detailing the reasons why Maryland’s law, requiring

a good and substantial reason to carry a concealed firearm in

58 PERUTA V. CTY. OF SAN DIEGO

public, advances the government’s important public safety

objectives); Drake,724 F.3d at 439 (noting that “conflicting

empirical evidence . . . does not suggest, let alone compel, a

conclusion that the ‘fit’ between [a state’s] individualized,

tailored approach and public safety is not ‘reasonable’”).

Defendants must show only that the regulation “promotes

a ‘substantial government interest that would be achieved less

effectively absent the regulation,’” not that the chosen

regulation is the “least restrictive means” of achieving the

government’s important interest. Fyock v. City of Sunnyvale,

779 F.3d 991, 1000 (9th Cir. 2015) (quoting Colacurcio v.

City of Kent, 163 F.3d 545, 553 (9th Cir. 1998)); see also

United States v. Marzzarella, 614 F.3d 85, 98 (3d Cir. 2010)

(stating that the fit need only “be reasonable, not perfect”).

In examining reasonableness, we “must accord substantial

deference to the predictive judgments” of legislative bodies,

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665 (1994),

and the government must be allowed to experiment with

solutions to serious problems, Jackson v. City of San

Francisco, 746 F.3d 953, 966 (9th Cir. 2014) (citing City of

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 52 (1986)).

Finally, despite Judge Silverman’s argument to the

contrary, California’s decision to confer permit discretion on

its counties is not an arbitrary one. Localizing the decision

allows closer scrutiny of the interests and needs of each

community, increasing the “reasonable fit” between the level

of restriction and local conditions and decreasing the extent

of the restriction that otherwise would apply, statewide, in

places that do not require it. Similarly, localizing the

decision allows more careful and accurate consideration of

each individual’s license application. California entrusts the

decision-making responsibility to local law enforcement

PERUTA V. CTY. OF SAN DIEGO 59

officials because they are best positioned to evaluate the

potential dangers that increasing or decreasing concealed

carry would have in their communities. This structure allows

for a nuanced assessment of the needs of each locality in

processing applications for concealed carry. In short,

California’s decision to place licensing in local hands is itself

reasonable.

In sum, even if the Second Amendment applied to

concealed carry of firearms in public, the challenged laws and

actions by Defendants survive heightened scrutiny. No

constitutional violation occurred.

CALLAHAN, Circuit Judge, dissenting, in which

SILVERMAN, Circuit Judge, joins as to all parts except

section IV, BEA, Circuit Judge, joins, and N.R. SMITH,

Circuit Judge, joins as to all parts except section II.B:

The Second Amendment is not a “second-class”

constitutional guarantee. See McDonald v. City of Chicago,

561 U.S. 742, 780 (2010). In the watershed case District of

Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court

held that the Second Amendment codified an existing

individual right to keep and bear arms for self-defense. Two

years later, the Court reaffirmed Heller in McDonald,

561 U.S. at 742, and held that the individual right to bear

arms for self-defense under the Second Amendment was

fundamental and applied to the states. Although these

opinions specifically address firearms in the home, any fair

reading of Heller and McDonald compels the conclusion that

the right to keep and bear arms extends beyond one’s front

door. Like the rest of the Bill of Rights, this right is

60 PERUTA V. CTY. OF SAN DIEGO

indisputably constitutional in stature and part of this

country’s bedrock.

Plaintiffs assert that the counties’ concealed weapons

licensing schemes, in the context of California’s regulations

on firearms, obliterate their right to bear arms for self-defense

in public. The Supreme Court in Heller addressed concealed-

carry restrictions and instructed that those restrictions be

evaluated in context with open-carry laws to ensure that the

government does not deprive citizens of a constitutional right

by imposing incremental burdens. Heller, 554 U.S. at 629.

In the context of present-day California law, the Defendant

counties’ limited licensing of the right to carry concealed

firearms is tantamount to a total ban on the right of an

ordinary citizen to carry a firearm in public for self-defense.

Thus, Plaintiffs’ Second Amendment rights have been

violated. While states may choose between different manners

of bearing arms for self-defense, the right must be

accommodated.

The majority sets up and knocks down an elaborate straw

argument by answering only a narrow question—whether the

Second Amendment protects a right to carry concealed

firearms in public. But this approach is contrary to Heller,

and contrary to the prescribed method for evaluating and

protecting broad constitutional guarantees. Indeed, the

majority’s lengthy historical analysis fails to appreciate that

many of its cited cases either presumed a right to openly carry

a firearm in public or relied on a pre-Heller interpretation of

the Second Amendment. Because the majority eviscerates

the Second Amendment right of individuals to keep and bear

arms as defined by Heller and reaffirmed in McDonald, I

respectfully dissent.

PERUTA V. CTY. OF SAN DIEGO 61

I. The Individual Right to Bear Arms Extends Beyond

the Home

A. Under Heller and McDonald, the individual right to

bear arms for self-defense extends beyond the home

Our analysis begins with the text of the Second

Amendment and the Supreme Court’s opinions in Heller and

McDonald, which instruct that the right to bear arms extends

beyond the home.

The Second Amendment guarantees “the right of the

people to keep and bear Arms.” U.S. Const. amend. II.

Heller held that the Second Amendment conferred an

individual right to keep and bear arms for self-defense.

554 U.S. at 595. Indeed, Heller adopted Justice Ginsburg’s

definition of “carries a firearm” to mean “wear, bear, or carry

. . . upon the person or in the clothing or in a pocket, for the

purpose . . . of being armed and ready for offensive or

defensive action in a case of conflict with another person.”

Id. at 584 (quoting Muscarello v. United States, 524 U.S. 125,

143 (1998) (Ginsburg, J., dissenting)). McDonald affirmed

that the constitutional right to keep and bear arms applies to

the states. McDonald, 561 U.S. at 778 (“[T]he Framers and

ratifiers of the Fourteenth Amendment counted the right to

keep and bear arms among those fundamental rights

necessary to our system of ordered liberty.”).

Heller and McDonald also instruct that the right to bear

arms exists outside the home. Under these cases, the Second

Amendment secures “an individual right protecting against

both public and private violence,” indicating that the right

extends in some form to locations where a person might

become exposed to public or private violence. See Heller,

62 PERUTA V. CTY. OF SAN DIEGO

554 U.S. at 594. The Court reinforced this view by noting

that the need for the right is “most acute” in the home, id. at

628, thus implying that the right exists outside the home. See

also McDonald, 561 U.S. at 780 (“[T]he Second Amendment

protects a personal right to keep and bear arms for lawful

purposes, most notably for self-defense within the home.”).

Heller also identifies “laws forbidding the carrying of

firearms in sensitive places such as schools and government

buildings” as presumptively lawful. 554 U.S. at 626. Were

the right to self-defense confined to the home, the validity of

such laws would be self-evident.

The history of the Second Amendment also indicates that

the right to bear arms applies outside the home. The

common-law “right of having and using arms for self-

preservation and defence,” according to Blackstone, protected

“the natural right of resistance and self-preservation.”

1 William Blackstone, Commentaries *144. Blackstone’s

Commentaries also made clear that Congress would exceed

its authority were it to “pass a law prohibiting any person

from bearing arms.” 1 William Blackstone & St. George

Tucker, Blackstone’s Commentaries: With Notes of

Reference, to the Constitution and Laws, of the Federal

Government of the United States; and of the Commonwealth

of Virginia 289 (St. George Tucker ed., 1803). Furthermore,

the majority of Nineteenth Century courts agreed that the

Second Amendment right extended outside the home and

included, at minimum, the right to carry an operable weapon

in public for the purpose of lawful self-defense.1 Although

1

See Judge O’Scannlain’s comprehensive analysis of the historical

underpinnings of the Second Amendment’s right to some form of carry for

self-defense outside the home set forth in Peruta v. Cty. of San Diego,

742 F.3d 1144 (9th Cir. 2014), vacated 781 F.3d 1106 (2015).

PERUTA V. CTY. OF SAN DIEGO 63

some courts approved limitations on the manner of carry

outside the home, none approved a total destruction of the

right to carry in public.

Our sister circuits either have agreed that the Second

Amendment right to bear arms extends outside the home or

have assumed that the right exists. See Drake v. Filko,

724 F.3d 426, 431 (3d Cir. 2013) (recognizing that “the

Second Amendment’s individual right to bear arms may have

some application beyond the home”); Woollard v. Gallagher,

712 F.3d 865, 876 (4th Cir. 2013) (assuming without deciding

“that the Heller right exists outside the home”); Moore v.

Madigan, 702 F.3d 933, 937 (7th Cir. 2012) (“To confine the

right to be armed to the home is to divorce the Second

Amendment from the right of self-defense described in Heller

and McDonald.”); Kachalsky v. Cty. of Westchester, 701 F.3d

81, 89 & n.10 (2d Cir. 2012) (noting that “[t]he plain text of

the Second Amendment does not limit the right to bear arms

to the home,” and assuming that the Amendment has “some

application” in the context of public possession of firearms

(emphasis omitted)). Notably, the majority does not refute

this analysis, hedging that “[t]he Second Amendment may or

may not protect, to some degree, a right of a member of the

general public to carry firearms in public.” Maj. Op. 19.

Thus, pursuant to Heller and McDonald, an individual’s right

to self-defense extends outside the home and includes a right

to bear arms in public in some manner.

B. States may choose between different manners of

bearing arms for self-defense so long as the right to

bear arms for self-defense is accommodated

Heller balances the Second Amendment right to bear

arms in public with a state’s ability to choose between

64 PERUTA V. CTY. OF SAN DIEGO

regulating open carry or concealed carry. Heller first noted

that laws prohibiting concealed carry were examples of how

the right secured by the Second Amendment was not a right

to keep and carry any weapon whatsoever in any manner

whatsoever and for whatever purpose:

Like most rights, the right secured by the

Second Amendment is not unlimited. From

Blackstone through the 19th-century cases,

commentators and courts routinely explained

that the right was not a right to keep and carry

any weapon whatsoever in any manner

whatsoever and for whatever purpose. See,

e.g., Sheldon, in 5 Blume 346; Rawle 123;

Pomeroy 152–153; Abbott 333. For example,

the majority of the 19th-century courts to

consider the question held that prohibitions on

carrying concealed weapons were lawful

under the Second Amendment or state

analogues. See, e.g., State v. Chandler, 5 La.

Ann., at 489–490; Nunn v. State, 1 Ga., at

251; see generally 2 Kent *340, n. 2; The

American Students’ Blackstone 84, n. 11 (G.

Chase ed. 1884). Although we do not

undertake an exhaustive historical analysis

today of the full scope of the Second

Amendment, nothing in our opinion should be

taken to cast doubt on longstanding

prohibitions on the possession of firearms by

felons and the mentally ill, or laws forbidding

the carrying of firearms in sensitive places

PERUTA V. CTY. OF SAN DIEGO 65

such as schools and government buildings, or

laws imposing conditions and qualifications

on the commercial sale of arms.

554 U.S. at 626–27.

Importantly, while the Court enumerated four

presumptively lawful “longstanding prohibitions,” it did not

list prohibitions of concealed weapons as one of them.

Instead, the Court identified concealed weapons prohibitions

as an example of regulating the manner in which individuals

can exercise their right to keep and carry a firearm for self-

defense. The Court further noted that a prohibition on

carrying concealed handguns in conjunction with a

prohibition of open carry of handguns would destroy the right

to bear and carry arms:

Few laws in the history of our Nation have

come close to the severe restriction of the

District’s handgun ban. And some of those

few have been struck down. In Nunn v. State,

the Georgia Supreme Court struck down a

prohibition on carrying pistols openly (even

though it upheld a prohibition on carrying

concealed weapons). See 1 Ga., at 251. In

Andrews v. State, the Tennessee Supreme

Court likewise held that a statute that forbade

openly carrying a pistol “publicly or privately,

without regard to time or place, or

circumstances,” 50 Tenn., at 187, violated the

state constitutional provision (which the court

equated with the Second Amendment). That

was so even though the statute did not restrict

the carrying of long guns. Ibid. See also

66 PERUTA V. CTY. OF SAN DIEGO

State v. Reid, 1 Ala. 612, 616–617 (1840) (“A

statute which, under the pretence of

regulating, amounts to a destruction of the

right, or which requires arms to be so borne

as to render them wholly useless for the

purpose of defence, would be clearly

unconstitutional”).

Id. at 629.

In sum, Heller indicates that concealed-weapons

prohibitions may be proper as long as individuals retain other

means to exercise their Second Amendment right to bear

arms for self-defense. However, where other ways of

exercising one’s Second Amendment right are foreclosed, a

prohibition on carrying concealed handguns constitutes a

“severe restriction” on the Second Amendment right, just like

the District of Columbia’s unconstitutional handgun ban in

Heller.

II. Given California’s Choice to Prohibit Open Carry, the

Counties’ Policies of Not Allowing for Concealed

Carry for Self-Defense are Unconstitutional

As the Plaintiffs have some right to carry a firearm in

public for self-defense, the next task is to determine whether

the counties’ policies, in light of the state’s open-carry

restrictions, are constitutional. We have held (and the

majority does not hold otherwise) that when a law burdens

conduct falling within the scope of the Second Amendment’s

guarantee, a two-step inquiry is appropriate. Jackson v. City

& Cty. of San Francisco, 746 F.3d 953, 963 (9th Cir. 2014).

“The two-step inquiry we have adopted ‘(1) asks whether the

challenged law burdens conduct protected by the Second

PERUTA V. CTY. OF SAN DIEGO 67

Amendment and (2) if so, directs courts to apply an

appropriate level of scrutiny.’” Id. at 960 (quoting United

States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)).

A. Procedural posture and California’s gun control

regime

First, we consider the posture of this case in the context

of California’s concealed- and open-carry laws. The Richards

Plaintiffs filed suit in May 2009, and the Peruta Plaintiffs

filed suit in October 2009. Both plaintiff groups challenged

their respective counties’ concealed weapons licensing

policies under the Second Amendment.

California prohibits an individual from carrying a

concealed handgun in public. Cal. Penal Code § 25400

(prohibiting concealed carry of a loaded firearm in public).

There are exceptions to this prohibition on concealed carry,

including for peace officers, military personnel, and persons

in private security. Id. §§ 25450, 25620, 25630, 25650.

There are also exceptions for persons engaged in particular

activities, such as hunting. Id. § 25640.

A member of the general public, however, cannot carry a

concealed handgun without a concealed-weapons license.

The sheriff of a county may issue an applicant a license to

lawfully carry a concealed handgun in the city or county in

which that applicant works or resides. Id. §§ 26150, 26155.

However, the applicant must be a resident of (or spend

substantial time in) the county in which he or she applies,

pass a background check, take a firearms course, demonstrate

good moral character, and demonstrate “good cause.” Id.

§§ 26150, 26155, 26165.

68 PERUTA V. CTY. OF SAN DIEGO

The counties’ interpretation of “good cause” is a focal

point in this case. Both counties define “good cause” as

requiring a particular need. San Diego County defines “good

cause” as “a set of circumstances that distinguish[es] the

applicant from the mainstream and causes him or her to be

placed in harm’s way.” Similarly, Yolo County’s written

policy requires “valid” reasons for requesting a license.

Importantly, under both policies a general desire for self-

protection and protection of family does not constitute “good

cause.”

In upholding the counties’ restrictions, the district courts

relied on the fact that, at that time, California permitted

unloaded open carry of handguns under then Penal Code

§ 12031(g). Thus, the district courts found that the counties’

licensing schemes did not substantially burden the right to

bear arms for self-defense. Peruta v. Cty. of San Diego,

758 F. Supp. 2d 1106, 1114 (S.D. Cal. 2010) (“As a practical

matter, should the need for self-defense arise, nothing in

section 12031 restricts the open carry of unloaded firearms

and ammunition ready for instant loading.”); Richards v. Cty.

of Yolo, 821 F. Supp. 2d 1169, 1175 (E.D. Cal. 2011) (“Under

the statutory scheme, even if Plaintiffs are denied a concealed

weapon license for self-defense purposes from Yolo County,

they are still more than free to keep an unloaded weapon

nearby their person, load it, and use it for self-defense in

circumstances that may occur in a public setting.”).

However, during the pendency of these appeals,

California repealed its open-carry law, and enacted broad

legislation prohibiting open carry of handguns in public

PERUTA V. CTY. OF SAN DIEGO 69

places. AB 144, 2011–12 Leg., 2011–12 Sess. (Cal. 2011).2

Thus, California now generally prohibits individuals from

openly carrying a handgun—whether loaded or unloaded—in

public locations. See Cal. Penal Code § 25850 (prohibiting

carry of a loaded firearm); id. § 26350 (prohibiting open carry

of an unloaded firearm).3

B. In the context of California’s ban on open carry, the

counties’ ban on concealed carry for self-defense is

unconstitutional

In the context of California’s choice to prohibit open

carry, the counties’ policies regarding the licensing of

2

AB 144 provided, among other things, that “[a] person is guilty of

openly carrying an unloaded handgun when that person carries upon his

or her person an exposed and unloaded handgun outside a vehicle while

in or on any of the following: (A) A public place or public street in an

incorporated city or city and county. (B) A public street in a prohibited

area of an unincorporated area of a county or city and county. (C) A public

place in a prohibited area of a county or city and county.” Cal. Penal

Code § 26350(a)(1).

3

There are exceptions. California law permits (1) possession of a

loaded or unloaded firearm at a person’s place of residence, temporary

residence, campsite, on private property owned or lawfully possessed by

the person, or within the person’s place of business, Cal. Penal Code

§§ 25605, 26035, 26055; (2) the transportation or carrying of any pistol,

revolver, or other firearm capable of being concealed upon the person

within a motor vehicle, unloaded and locked in the vehicle’s trunk or in

a locked container in the vehicle, and carrying the firearm directly to or

from any motor vehicle within a locked container, id. §§ 25505, 25610,

25850; (3) carrying a loaded or unloaded firearm in some unincorporated

areas, id. §§ 25850(a), 26350(a); and (4) carrying a loaded firearm where

the person reasonably believes that any person or the property of any

person is in immediate, grave danger and that the carrying of the weapon

is necessary for the preservation of that person or property, id. § 26045.

70 PERUTA V. CTY. OF SAN DIEGO

concealed carry are tantamount to complete bans on the

Second Amendment right to bear arms outside the home for

self-defense, and are therefore unconstitutional.

Heller defined the right to bear arms as the right to be

“armed and ready for offensive or defensive action in a case

of conflict with another person.” Heller, 554 U.S. at 584

(quoting Muscarello, 524 U.S. at 143 (Ginsburg, J.,

dissenting)). Here, California has chosen to ban open carry

but grants its citizens the ability to carry firearms in public

through county-issued concealed weapons licenses. Thus, in

California, the only way that the average law-abiding citizen

can carry a firearm in public for the lawful, constitutionally

protected purpose of self-defense is with a concealed-carry

license. And in San Diego and Yolo Counties that option has

been taken off the table. Both policies specify that concern

for one’s personal safety alone does not satisfy the “good

cause” requirement for issuance of a license.

California’s exceptions to the general prohibition against

public carry do little to protect an individual’s right to bear

arms in public for self-defense. The exceptions for particular

groups of law enforcement officers and military personnel do

not protect the average citizen. Bearing arms on private

property and at places of business does not allow citizens to

protect themselves by bearing arms in public. And the

exceptions for “making or attempting to make a lawful arrest”

or for situations of “immediate, grave danger” offer no solace

to an individual concerned about protecting self and family

from unforeseen threats in public.

Here, as in Heller, the exceptions are limited and do not

adequately allow the ordinary citizen to exercise his or her

right to keep and bear arms for self-defense within the

PERUTA V. CTY. OF SAN DIEGO 71

meaning of the Second Amendment, as defined by the

Supreme Court. Thus, the counties’ concealed-carry policies

in the context of California’s open-carry ban obliterate the

Second Amendment’s right to bear a firearm in some manner

in public for self-defense. See also Moore v. Madigan,

702 F.3d 933, 936–42 (7th Cir. 2012) (striking down the

open-and-concealed-carry regulatory regime in Illinois

because the state failed to justify “so substantial a curtailment

of the right of armed self-defense”).

C. If the counties’ policies were not a ban, remand to the

district courts would be appropriate

Even if the counties’ policies in light of the California

laws prohibiting open carry were not tantamount to complete

bans, the proper remedy would be to remand to the district

courts. The district courts did not have the benefit of our

recent case law applying our Second Amendment framework.

See Jackson, 746 F.3d at 963; Chovan, 735 F.3d at 1130.

Additionally, the underlying statutory scheme has changed

dramatically since the district courts’ decisions. At the time

the district courts rendered their decisions, California

permitted unloaded open carry, a fact that both district courts

relied upon to find that the counties’ policies did not

substantially burden any Second Amendment rights. See

Peruta, 758 F. Supp. 2d at 1114–15; Richards, 821 F. Supp.

2d at 1175. However, open carry is now effectively

prohibited.

Furthermore, reasonable jurists might find triable issues

of material fact as to whether the policies substantially burden

the right to carry a firearm in public for self-defense, whether

there are open alternative channels to bear arms for self-

defense, whether there are sufficient governmental interests

72 PERUTA V. CTY. OF SAN DIEGO

that justify some of the restrictions, and whether the

restrictions are sufficiently tailored to those interests. See

Jackson, 746 F.3d at 963; Chovan, 735 F.3d at 1127. Thus,

if the counties’ policies are to be upheld, in whole or in part,

the parties ought to have the opportunity to present evidence

as to these issues, and the district court ought to have the

opportunity to consider this evidence under the correct

framework.4

Instead of remanding, the concurrence would hold that the

concealed-weapons restrictions here survive intermediate

scrutiny. The concurrence follows the approach of the

Second, Third, and Fourth Circuits, which have held that

states may limit the right to bear arms to persons who show

good cause or meet a similar elevated standard. But the

analyses in these cases are questionable as they rely on pre-

Heller interpretations of the Second Amendment.5 Even if

4

On a remand, I would apply heightened scrutiny. Jackson, 746 F.3d

at 964 (noting that a “severe burden” on the Second Amendment right

“requires [a] higher level of scrutiny”); see also Ezell v. City of Chicago,

651 F.3d 684, 691–92, 708 (7th Cir. 2011) (applying “rigorous” review “if

not quite ‘strict scrutiny’” to law that required firing range training prior

to gun ownership but then banned all firing ranges).

5

For example, in Drake, the Third Circuit upheld New Jersey’s

requirement that prior to receiving a license to carry a gun, either openly

or concealed, an applicant had to show a “justifiable need.” 724 F.3d at

428. The court held that restrictions on concealed weapons are

“longstanding regulation[s] that enjoy[] presumptive constitutionality,”

and thus “regulate[] conduct falling outside the scope of the Second

Amendment’s guarantee.” Id. at 434. Drake noted that New Jersey courts

had upheld the restriction of gun permits in Siccardi v. State, 284 A.2d

533, 538 (N.J. 1971), and Siccardi, in turn, relied on Burton v. Sills,

248 A.2d 521, 525–26 (N.J. 1968). Drake, 724 F.3d at 432. Burton,

however, erroneously held that the Second Amendment referred only to

the collective right of the people to keep and bear arms, and not an

PERUTA V. CTY. OF SAN DIEGO 73

Heller and McDonald are seen as a departure from any prior

understanding of the Second Amendment, they are law and

remain binding upon us.

III. The Majority Errs By Ignoring California’s

Choice to Ban Open Carry and Focusing

Myopically on the Counties’ Bans on Concealed

Carry

The majority’s opinion is not in accord with our usual

approach to broadly defined constitutional rights, and fails to

appreciate the context in which the Plaintiffs’ challenges to

the counties’ policies arise. Moreover, its historical analysis

is largely irrelevant because it again fails to appreciate the

contexts in which the cited cases arose.

A. Courts review a law’s constitutionality in that law’s

larger context, just as the Supreme Court did in

Heller

A holistic approach to evaluating concealed weapons laws

in context of the open-carry laws comports with how courts

have evaluated other laws that allegedly infringed on

individual right to self-defense. Burton, 248 A.2d at 526 (“As the

language of the [Second] [A]mendment itself indicates it was not framed

with individual rights in mind. Thus it refers to the collective right ‘of the

people’ to keep and bear arms in connection with ‘a well-regulated

militia.’”).

Similarly in Kachalsky, the Second Circuit noted that New York had

long regulated the possession and use of firearms. 701 F.3d at 84–85.

However, the Second Circuit acknowledged that “the law was upheld, in

part, on what is now the erroneous belief that the Second Amendment

does not apply to the states.” Id. at 85.

74 PERUTA V. CTY. OF SAN DIEGO

constitutional rights. In the First Amendment context, for

example, our precedents inform us that we should not cabin

our inquiry to the challenged law before us. Rather, the

preferred course is to examine other, related laws to

determine the nature of the asserted constitutional right and

the extent of the burden on that right. See, e.g., Doe v. Reed,

561 U.S. 186 (2010) (examining other disclosure laws to

determine the constitutionality of a requirement to disclose

petition signatories); Chula Vista Citizens for Jobs & Fair

Competition v. Norris, 782 F.3d 520 (9th Cir. 2015) (en banc)

(examining other disclosure laws to determine the

constitutionality of a requirement to disclose the identity of

a petition proponent). Similarly here, we must examine the

applicable open-carry restrictions to determine the nature of

Plaintiffs’ asserted right to some carry in public and the

extent of the burden of the policies on that right.

B. Defining the constitutional right to bear arms

narrowly is inconsistent with judicial protection of

other fundamental freedoms

Regardless of how a jurist feels about the Second

Amendment, there can be no doubt that Heller construed the

words “keep and bear arms” broadly to encompass an

individual’s right to self-defense, as opposed to a collective

right to keep and bear arms for maintaining a militia. The

Court has defined other constitutional rights broadly as well.

See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015)

(defining constitutional right as right to marry, not right to

same-sex marriage); Lawrence v. Texas, 539 U.S. 558,

566–70 (2003) (right to privacy, not right to engage in

sodomy); Griswold v. Connecticut, 381 U.S. 479, 485–86

(1965) (right to marital privacy, not the right to use birth

control devices). Thus, the question in Obergefell was not

PERUTA V. CTY. OF SAN DIEGO 75

whether the plaintiffs have a right to same-sex marriage, the

question was whether the states’ limitation of marriage to a

man and woman violated the right to marry. The question in

Griswold was not whether there was a constitutional right to

use birth control, but rather whether the state’s prohibition on

birth control violated a person’s right to marital privacy.

So too here. The individual constitutional right that

Plaintiffs seek to protect is not the right to concealed carry

per se, but their individual right to self-defense guaranteed by

Heller. States may choose how to accommodate this right but

they must accommodate it. This distinction may be subtle,

but it is critical. Narrowly defining the right may disguise a

law’s substantive impact on a constitutional freedoms. See,

e.g., Bowers v. Hardwick, 478 U.S. 186, 190 (1986)

(upholding sodomy law, holding that the Constitution does

not “confer[] a fundamental right upon homosexuals to

engage in sodomy”), overruled by Lawrence, 539 U.S. at 569

(striking down sodomy law, holding that “criminal

convictions for adult consensual sexual intimacy in the home

violate[d] [plaintiffs’] vital interests in liberty and privacy

protected by the Due Process Clause of the Fourteenth

Amendment”).

The majority reasons, however, that “if that right is

violated, the cure is to apply the Second Amendment to

protect that right. The cure is not to apply the Second

Amendment to protect a right that does not exist under the

Amendment.” Maj. Op. 51. This is an over-simplistic

analysis. The counties and California have chipped away at

the Plaintiffs’ right to bear arms by enacting first a concealed

weapons licensing scheme that is tantamount to a complete

ban on concealed weapons, and then by enacting an open

carry ban. Constitutional rights would become meaningless

76 PERUTA V. CTY. OF SAN DIEGO

if states could obliterate them by enacting incrementally more

burdensome restrictions while arguing that a reviewing court

must evaluate each restriction by itself when determining its

constitutionality. See Heller, 554 U.S. at 629 (“A statute

which, under the pretence of regulating, amounts to a

destruction of the right, or which requires arms to be so borne

as to render them wholly useless for the purpose of defence,

would be clearly unconstitutional” (quoting State v. Reid,

1 Ala. 612, 616–17 (1840))). Indeed, such an approach was

rejected by Heller which discussed concealed-carry laws in

the context of open-carry prohibitions. Id.6

By narrowly defining the asserted right as a right to

concealed carry, the majority fails to recognize the real

impact of the counties’ policies on the Second Amendment

right to keep and bear arms.

C. Given the right to bear arms for self-defense extends

beyond the home, states must accommodate that right

to self-defense

As explained above, given the right to bear arms for self-

defense exists outside the home, it follows then that states

must accommodate that right. While Heller prohibits states

from completely banning carrying a firearm in public for self-

defense, it leaves states room to choose what manner of carry

is allowed. States may choose how to accommodate the right

by allowing only open carry, only concealed carry, or some

combination of both. However, states may not disallow both

6

Under the majority’s approach, a court reviewing a challenge to

California’s regulation of the open carrying of firearms could not consider

the fact that in some counties an ordinary citizen also cannot carry a

concealed weapon.

PERUTA V. CTY. OF SAN DIEGO 77

manners of carry as the counties and California have done

here.

The majority concedes that “[t]he Second Amendment

may or may not protect to some degree a right of a member

of the general public to carry a firearm in public.” Maj. Op.

51. However, it claims that “[i]f there is such a right, it is

only a right to carry a firearm openly.” Maj. Op. 51. The

majority’s holding—that California must accommodate the

right to bear arms in public through open carry—is

unsupported by Supreme Court precedent and contrary to

federalism principles. The Supreme Court has never dictated

how states must accommodate a right to bear arms. The

majority’s cited cases, also cited in Heller, make this point

clear. See, e.g., Reid, 1 Ala. at 616–17 (“We do not desire to

be understood as maintaining, that in regulating the manner

of bearing arms, the authority of the Legislature has no other

limit than its own discretion. A statute which, under the

pretence of regulating, amounts to a destruction of the right,

or which requires arms to be so borne as to render them

wholly useless for the purpose of defence, would be clearly

unconstitutional.”); Nunn v. State, 1 Ga. 243, 243 (1846) (“A

law which merely inhibits the wearing of certain weapons in

a concealed manner is valid. But so far as it cuts off the

exercise of the right of the citizen altogether to bear arms, or,

under the color of prescribing the mode, renders the right

itself useless-it is in conflict with the Constitution, and

78 PERUTA V. CTY. OF SAN DIEGO

void.”).7 Thus, the majority errs by suggesting that states

must accommodate the right to bear arms through open carry.

Moreover, the majority’s requirement that states

accommodate the right to bear arms through open carry is

unwise. States may have good reasons for allowing

concealed carry but banning open carry. See Eugene Volokh,

Implementing the Right to Keep and Bear Arms for Self-

Defense: An Analytical Framework and A Research Agenda,

56 UCLA L. Rev. 1443, 1521 (2009) (“In many places,

carrying openly is likely to frighten many people, and to lead

to social ostracism as well as confrontations with the

7

Because the majority miscasts the issue in these appeals, its historical

analysis is largely irrelevant. But there are also substantive problems with

that analysis. Some authorities are unpersuasive as they rely on a pre-

Heller interpretation of the Second Amendment as being limited to a right

to bear arms for purposes of maintaining a “well-regulated” militia. See,

e.g., Aymette v. State, 21 Tenn. 154, 158 (1840) (limiting “arms” to mean

those “such as are usually employed in civilized warfare, and that

constitute the ordinary military equipment”); State v. Buzzard, 4 Ark. 18,

19 (1842) (rejecting individual Second Amendment right to self-defense;

holding that right was tied to well-regulated militia); English v. State,

35 Tex. 473, 476 (1871) (“The word ‘arms’ in the connection we find it

in the constitution of the United States, refers to the arms of a militiaman

or soldier, and the word is used in its military sense.”); State v. Workman,

14 S.E. 9, 11 (W. Va. 1891) (limiting “arms” to mean those “weapons of

warfare to be used by the militia, such as swords, guns, rifles, and

muskets,—arms to be used in defending the state and civil liberty”).

Still other authorities, such as Robertson v. Baldwin, 165 U.S. 275

(1897), are of limited value because they fail to disclose whether the

concealed-weapon law existed in conjunction with laws permitting open

carry, or do not indicate whether the court interpreted the Second

Amendment to be limited to a collective right related to the militia, instead

of an individual right to self-defense. See also Walburn v. Territory, 59

P. 972 (Okla. 1899).

PERUTA V. CTY. OF SAN DIEGO 79

police.”). Different states may have different opinions about

whether concealed carry or open carry is preferable. The

point is that, under Heller, states cannot prohibit both open

and concealed carry, thus eviscerating the right to bear arms

in public for self-defense.8

IV. The Counties’ Unfettered Discretion to Grant or

Deny Concealed Weapons Licenses is Troubling

Finally, while the majority and I would decide this case

on Second Amendment grounds, Plaintiffs have raised non-

frivolous concerns as to whether the counties’ discretion as to

who obtains a license violates the Equal Protection Clause

and constitutes an unlawful prior restraint. The issues are not

ripe for review, but I note that a discretionary licensing

scheme that grants concealed weapons permits to only

privileged individuals would be troubling.9 Such

discretionary schemes might lead to licenses for a privileged

class including high-ranking government officials (like

judges), business owners, and former military and police

officers, and to the denial of licenses to the vast majority of

citizens. See, e.g., McDonald, 561 U.S. at 771 (“After the

Civil War, many of the over 180,000 African Americans who

served in the Union Army returned to the States of the old

8

Despite California’s belated appreciation of the importance of these

appeals, the majority grants its motion to intervene. Hence, now that

California is a party, there is no reason to confine our inquiry to the

counties’ policies. Rather, California’s intervention supports examining

Plaintiffs’ challenges to the counties’ policies in the context of the

California open carry ban.

9

Indeed, a declaration submitted by the County of San Diego indicates

that the point of the concealed weapons licensing policy was to make

concealed carry “a very rare privilege.”

80 PERUTA V. CTY. OF SAN DIEGO

Confederacy, where systematic efforts were made to disarm

them and other blacks. The laws of some States formally

prohibited African-Americans from possessing firearms.”

(citations omitted)); Br. for Congress of Racial Equality, Inc.

as Amicus Curiae Supporting Appellants 15, 20, 24, ECF No.

249 (arguing that California’s gun control history evidences

attempts to disarm ethnic minorities including persons of

Mexican Heritage, Asian-Americans, and African-

Americans); cf. Br. for Pink Pistols et al. as Amici Curiae

Supporting Appellants 3, ECF No. 240 (“[W]ithout self-

defense, there are no gay rights.” (alteration and emphasis

omitted)). Whatever licensing scheme remains in place in

California or in other states, the right to keep and bear arms

must not become a right only for a privileged class of

individuals.

***

The Second Amendment is not a “second-class”

Amendment. See McDonald, 561 U.S. at 780.

Undoubtedly some think that the Second

Amendment is outmoded in a society where

our standing army is the pride of our Nation,

where well-trained police forces provide

personal security, and where gun violence is

a serious problem. That is perhaps debatable,

but what is not debatable is that it is not the

role of th[e] [Supreme] Court to pronounce

the Second Amendment extinct.

Heller, 554 U.S. at 636. Today the majority takes a step

toward extinguishing the Second Amendment right

recognized by the Supreme Court in Heller and McDonald.

PERUTA V. CTY. OF SAN DIEGO 81

With no clear guidance from the Court regarding how to

evaluate laws that restrict and obliterate the right to keep and

bear arms for self-defense, the Second Amendment is

becoming “[a] constitutional guarantee subject to future

judges’ assessments” which is “no constitutional guarantee at

all.” Id. at 634.

Accordingly, I dissent.

SILVERMAN, Circuit Judge, with whom BEA, Circuit Judge

joins, dissenting:

I dissent from the majority’s opinion because the

challenged laws do not survive any form of heightened

scrutiny – strict or intermediate scrutiny. See D.C. v. Heller,

554 U.S. 570, 629 n.27 (2008) (explaining that “rational-basis

scrutiny” is inappropriate for reviewing Second Amendment

challenges); see also United States v. Chovan, 735 F.3d 1127,

1137 (9th Cir. 2013), cert. denied, 135 S. Ct. 187 (2014) (“In

Heller, the Supreme Court did not specify what level of

scrutiny courts must apply to a statute challenged under the

Second Amendment. The Heller Court did, however,

indicate that rational basis review is not appropriate.”). The

more lenient of the two standards – intermediate scrutiny –

requires “(1) the government’s stated objective to be

significant, substantial, or important; and (2) a reasonable fit

between the challenged regulation and the asserted

objective.” Chovan, 735 F.3d at 1139.

No one disputes that the County Defendants and

California have significant, substantial, and important

interests in promoting public safety and reducing gun

82 PERUTA V. CTY. OF SAN DIEGO

violence. See Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th

Cir. 2015) (“Sunnyvale’s interests in promoting public safety

and reducing violent crime are substantial and important

government interests.”). However, the County Defendants

and California have failed to provide sufficient evidence

showing that there is a reasonable fit between the challenged

laws and these two objectives. See Chovan, 735 F.3d at

1140–41 (stating that it is the government’s burden to

establish that the challenged law survives intermediate

scrutiny); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(explaining that summary judgment is appropriate if “the

nonmoving party has failed to make a sufficient showing on

an essential element of her case with respect to which she has

the burden of proof”).

In evaluating the constitutionality of a law under

intermediate scrutiny, a reviewing court must assure that, in

formulating their judgments, lawmakers have “‘drawn

reasonable inferences based on substantial evidence.’”

Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 195 (1997)

(emphasis added) (quoting Turner Broad. Sys., Inc. v. F.C.C.,

512 U.S. 622, 666 (1994)); see also City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41, 51–52 (1986)

(explaining that the evidence that the lawmakers relied on

must be “reasonably believed to be relevant to the problem”

the government is addressing). In evaluating whether

California lawmakers have drawn reasonable inferences

based on substantial evidence, it is important to note that the

constitutional claims at issue in this case do not seek to

provide all California citizens with the unrestricted ability to

carry concealed firearms in public. To the contrary, Plaintiffs

do not challenge California Penal Code §§ 25655 and

26150’s requirements: (1) that a person desiring to carry a

concealed firearm in public first obtain a concealed carry

PERUTA V. CTY. OF SAN DIEGO 83

license; and (2) that in order to obtain that license the person

must be a law-abiding citizen of good moral character and

complete the necessary course of firearms training.

Thus, Plaintiffs only challenge California’s concealed

carry licensing scheme as interpreted and implemented by

San Diego County and Yolo County to the extent it prohibits

certain law-abiding citizens, who have completed the

necessary training and applied for the necessary license, from

carrying a concealed firearm in public because they cannot

satisfy San Diego County and Yolo County’s required

heightened showing of a particular need to carry a firearm in

public for self-defense purposes. This distinction is important

because the County Defendants and California have not

provided any evidence, let alone substantial evidence,

specifically showing that preventing law-abiding citizens,

trained in the use of firearms, from carrying concealed

firearms helps increase public safety and reduces gun

violence. The County Defendants have merely provided

evidence detailing the general dangers of gun violence and

concealed firearms. This evidence is of questionable

relevance to the issues in this case because it does not

distinguish between firearm violence committed by people

who are either concealed carry license holders or are qualified

to obtain such a license and firearm violence committed by

people who could not obtain a concealed carry license

because of either their criminal record or because they have

not completed the necessary course of firearms training.

There is simply no evidence in the record showing that

establishing a licensing regime that allows trained law-

abiding citizens to carry concealed firearms in public results

in an increase in gun violence. Indeed, the only evidence in

the record shows the exact opposite. Amici have provided

84 PERUTA V. CTY. OF SAN DIEGO

evidence showing that concealed-carry license holders are

disproportionately less likely to commit crimes – including

violent crimes such as aggravated assault with a deadly

weapon – than the general population, and that the adoption

of a concealed carry licensing regime such as the one

proposed by Plaintiffs in other areas of the country has either

had no effect on violent crime or has helped reduce violent

crime. See Amicus Brief for the Governors of Texas,

Louisiana, Maine, Mississippi, Oklahoma, and South Dakota

at 10–15; Amicus Brief for International Law Enforcement

Educators and Trainers Association, et al. at 22–26.

Accordingly, the evidence in the record is insufficient to

show that there is a reasonable fit between the challenged

laws and the government’s stated objectives.

Moreover, the undisputed facts in this case show that

there is not a reasonable fit because California law arbitrarily

allows its counties to set forth different standards for

obtaining a concealed carry license without any reasonable or

rational explanation for the differences. For example, in

Sacramento County, Fresno County, Stanislaus County, and

Ventura County, California Penal Code § 26150(a)’s “good

cause” requirement is satisfied by the applicant simply stating

that he wishes to carry a firearm in public for self-defense

purposes. In contrast, in the two counties at issue in the

present appeals – San Diego County and Yolo County – a

desire to carry a firearm in public for self-protection purposes

by itself is insufficient to satisfy § 26150(a)’s “good cause”

requirement. California argues that local officials are best

situated to determine what applicants should be required to

show in order to satisfy the “good cause” requirement; and,

therefore, it is reasonable to confer this discretion to its

County sheriffs. However, it does not appear that

California’s sheriffs are exercising this discretion in a rational

PERUTA V. CTY. OF SAN DIEGO 85

way. Neither California nor the County Defendants have

provided any explanation for why it is reasonable and rational

for a desire to carry a firearm in public for self-defense

purposes to be insufficient to constitute “good cause” in Yolo

County (population 213,0161) when right next door in

Sacramento County (population 1,501,3352) it is sufficient to

constitute “good cause.” There cannot be a reasonable fit if

the same standard – here, § 26150(a)’s “good cause”

requirement – is arbitrarily applied in different ways from

county to county without any explanation for the differences.

In sum, I would hold that the challenged laws are

unconstitutional under the Second Amendment because they

do not survive any form of heightened scrutiny analysis, and

therefore, I would reverse.

N.R. SMITH, Circuit Judge, dissenting:

I join the dissent of Judge Callahan. I agree that the

majority errs “by answering only a narrow question—whether

the Second Amendment protects a right to carry concealed

firearms in public.” Dissent 60. I write separately only to

express my opinion that the appropriate remedy is to remand

this case to the district courts.

1

United States Census Bureau, State & County QuickFacts, Yolo

County, California, http://www.census.gov/quickfacts/table/

PST045215/06113,00 (last visited June 2, 2016).

2

United States Census Bureau, State & County QuickFacts, Sacramento

County, California, http://www.census.gov/quickfacts/table/

PST045215/06067,00 (last visited June 2, 2016).

86 PERUTA V. CTY. OF SAN DIEGO

I.

This case turns on how the applicable issue is framed.

The majority states the issue narrowly—whether the “Second

Amendment . . . preserve[s] or protect[s] a right to carry

concealed firearms in public.” Maj. Op. 11. In contrast, the

dissent1 asks whether “[i]n the context of California’s choice

to prohibit open carry,” the counties’ restrictions on

concealed carry violate the Second Amendment. Dissent 69

(emphasis added).

As a result of this difference in framing the applicable

issue, the majority’s arguments and the dissent’s arguments

are often like “two ships passing in the night.” For example,

the majority engages in a lengthy academic exercise to reach

the conclusion that “the carrying of concealed weapons was

consistently forbidden in England beginning in 1541; was

consistently forbidden in the American colonies; and was

consistently forbidden by the states.” Maj. Op. 49–50. This

historical analysis is relevant to the issue framed by the

majority, but it is irrelevant to the issue framed by the dissent

“because it again fails to appreciate the contexts in which the

cited cases arose.” Dissent 73 (emphasis added).

The majority’s historical analysis is also unnecessary to

resolve the issue as framed by the majority opinion. In

District of Columbia v. Heller, the Supreme Court explicitly

recognized that prohibitions on carrying concealed weapons

were appropriate for regulating the manner in which

1

All references to the dissent refer to the dissent of Judge Callahan.

PERUTA V. CTY. OF SAN DIEGO 87

individuals could exercise their Second Amendment rights.2

554 U.S. 570, 626 (2008). If the issue before us is truly

whether California can, in isolation, prohibit concealed carry,

a simple memorandum disposition citing to Heller would be

sufficient. A formal opinion, much less the gathering of our

en banc panel, would not be necessary to answer the issue

framed by the majority.

Accordingly, I agree with the dissent’s articulation of the

relevant issue in this case. We should not review the

counties’ concealed weapons licensing schemes in isolation.

Instead, we must review them in the context of the underlying

statutory scheme as a whole. That review is consistent with

the Supreme Court’s approach in Heller.3 It is also consistent

with our court’s two-step Second Amendment inquiry. See

Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 961

(9th Cir. 2014) (noting that, under the second step of the

inquiry, courts should consider whether firearm regulations

“leave open alternative channels for self-defense”).

2

The Supreme Court also recognized that context was important when

reviewing a statute that regulates rights secured by the Second

Amendment. “A statute which, under the pretence of regulating, amounts

to a destruction of the right, or which requires arms to be so borne as to

render them wholly useless for the purpose of defence, would be clearly

unconstitutional.” Heller, 554 U.S. at 629 (quoting State v. Reid, 1 Ala.

612, 616–17 (1840)).

3

Heller involved, in part, various prohibitions in the District of

Columbia that (i) made it a crime to carry an unregistered firearm,

(ii) prohibited the registration of handguns, and (iii) required a license to

carry a handgun. Heller, 554 U.S. at 574–75. The Supreme Court did not

review these prohibitions in isolation, but instead concluded that the

various prohibitions together “totally ban[ned] handgun possession in the

home.” Id. at 628.

88 PERUTA V. CTY. OF SAN DIEGO

Accordingly, we cannot ignore the context surrounding the

counties’ concealed carry prohibitions.

II

During the pendency of these appeals, California’s

underlying statutory scheme changed. At the time the district

courts issued their decisions, California permitted unloaded

open carry. However, under the current scheme, open carry

(loaded and unloaded) is prohibited. See Dissent 68–69.

Further, as noted by the dissent, the district courts did not

have the benefit of our recent decisions in Jackson, 746 F.3d

953 and United States v. Chovan, 735 F.3d 1127 (9th Cir.

2013). See Dissent 71.

We have consistently concluded that, when confronted

with an intervening change in law, the better approach would

be to remand for the district court to consider the case under

the new legal framework. See, e.g., Betz v. Trainer Wortham

& Co., 610 F.3d 1169, 1171 (9th Cir. 2010) (discussing why

“remand is the better procedure” when an intervening change

in the law required further analysis of the facts of the case);

Baker v. Hazelwood (In re Exxon Valdez), 270 F.3d 1215,

1241 (9th Cir. 2001) (noting that, in cases where there is an

intervening change in the law, it will often be “the better

approach” to remand for the district court to “apply the

appropriate standards”); White Mountain Apache Tribe v.

Ariz., Dep’t of Game & Fish, 649 F.2d 1274, 1285–86 (9th

Cir. 1981) (“This court may remand a case to the district

court for further consideration when new cases or laws that

are likely to influence the decision have become effective

after the initial consideration.”).

PERUTA V. CTY. OF SAN DIEGO 89

Of course, we have discretion to determine “what

questions may be taken up and resolved for the first time on

appeal.” Singleton v. Wulff, 428 U.S. 106, 121 (1976). We

typically feel most comfortable resolving such an issue when

it has nonetheless been “extensively litigated in the district

court” or “where the proper resolution is beyond any doubt.”

Beck v. City of Upland, 527 F.3d 853, 867 (9th Cir. 2008)

(quoting Golden Gate Hotel Ass’n v. City & Cty. of San

Francisco, 18 F.3d 1482, 1487 (9th Cir. 1994)). However,

neither circumstance is present here. The issue at

hand—whether the counties’ licensing scheme for concealed

carry violates the Second Amendment in light of California’s

restrictions on open carry—was not litigated in the district

courts. Further, as is apparent from the various opposing

views of my colleagues, proper resolution of this issue is not

beyond any doubt.

Indeed, we would benefit greatly from the district courts’

expertise in developing the record and applying the

appropriate standards in light of California’s significant

intervening change in its legal framework. I agree that the

“challenged law burdens conduct protected by the Second

Amendment.” Chovan, 735 F.3d at 1136. I would therefore

remand to allow the district courts to initially determine and

“apply an appropriate level of scrutiny.” Id.

Accordingly, I dissent.