Michael Dunn and Curtis Reeves were responsible, law-abiding citizens who used handguns they were legally allowed to carry in public to kill innocent victims who were likewise responsible, law-abiding citizens. Dunn and Reeves — who both ended up facing criminal charges — live in Florida, which makes it easy to get gun-carry permits. Other states do not, but a new federal appeals court ruling casts doubt on how far those states can go in keeping firearms off the streets.
The split decision by the Ninth U.S. Circuit Court of Appeals [Feb. 13] recognizes a Second Amendment right for “responsible, law-abiding citizens” to carry firearms in public. The ruling in Peruta v. San Diego County strikes down the relatively strict policy on granting so-called concealed-carry permits followed in most California jurisdictions.
The ruling is at odds with most federal appeals court to rule on such laws since the Supreme Court’s precedent-setting gun-rights decisions in 2008 and 2010. And it gives no weight to the rationales San Diego County offered for its policy. One of those is directly pertinent to the gun deaths in Florida: “limiting the likelihood that minor altercations in public will escalate into fatal shootings.”
Dunn, a middle-aged software engineer, shot and killed teenager Jordan Davis in a Jacksonville gas station on Nov. 23 after an argument over the rap music being played loudly from the car radio where Davis was a passenger. Dunn, who had a gun permit but allegedly had not fired his weapon in 20 years, claimed he fired 10 shots into the teenagers’ SUV after he saw one of them with a weapon. No weapon was found.
Reeves, a 71-year-old retired police officer, shot and killed Chad Oulson in a movie theater in a Tampa suburb after an argument over Oulson’s texting during the previews. Oulson, a middle-aged father out with his wife, had been texting to the baby sitter back home. He was unarmed.
A jury convicted Dunn on Saturday of three counts of attempted murder but deadlocked on a first-degree murder charge for killing Davis. Reeves is being held without bail awaiting trial for first-degree murder.
Davis and Oulson would be alive today — and Dunn and Reeves would be facing less serious charges if any — but for the weapons that Dunn and Reeves were carrying. Nothing suggests that either had any specific need for self-defense.
California is among a minority of states that allow citizens to go armed on the streets only if they can show “good character” and “good cause” for a permit. Florida led the way in 1987 in enacting laws to the opposite effect. The so-called “shall issue” laws in nearly 40 states generally require local authorities to grant adult citizens gun permits with only a few well-defined exceptions.
Applying the California law, San Diego County adopted a fairly narrow definition of what qualifies as “good cause” for a concealed-carry permit. Specifically, the county allows a citizen to carry a weapon in public for self-defense only based on some specific risk of harm “that distinguish [him or her] from the mainstream.” Concern for “one’s personal safety alone” does not suffice.
The Ninth Circuit’s 77-page majority opinion, written by the veteran conservative jurist Diarmuid O’Scannlain, said the county’s policy was too restrictive. But to reach that point the Reagan-appointed judge first found that the Second Amendment’s right to “keep and bear arms” necessarily includes the right to carry weapons in public.
That conclusion goes beyond the Supreme Court’s 5-4 decisions in Heller v. District of Columbia (2008) and McDonald v. Chicago (2010). In recognizing an individual right to possess firearms, the Heller Court said the right’s “core” purpose was “protection of hearth and home.” But O’Scannlain said the decision “points in a general direction.” And he read 19th century court decisions as pointing in that direction as well.
As Judge Sidney Thomas pointed out in a 48-page dissent, however, O’Scannlain elided over laws prohibiting carrying weapons in public – from the 14th century Statute of Northampton in England to many in the American colonies and the 19th century United States. Thomas, a Clinton appointee, also noted that one of the old cases that O’Scannlain relied on — from Kentucky — was overturned by a constitutional amendment that specifically authorized the state’s legislature to prohibit carrying arms in public.
From his premise, O’Scannlain found no need to balance the county’s interest in controlling firearms against this newfound Second Amendment right to go armed in public. “No amount of interest-balancing . . . can justify” the policy, he writes. In the dissent, Thomas said the county’s rationales survive intermediate constitutional scrutiny even if a Second Amendment right is implicated. He cited five rationales that the county lists, including limiting the dangers to the public.
The judges recognized the importance of the case: they kept it under advisement for more than a year after arguments. Of the four other circuits to issue post-Heller decisions on concealed-carry laws, only one — the Seventh Circuit, ruling on an Illinois law — has struck down the measure at issue. The question is inevitably headed toward the Supreme Court, which some day will have to answer whether its previous decision points in only one direction and, if so, how far.
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