Order in the court.

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Two Wins for Gun Control Buck the U.S. Legal Trend

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Gun-rights advocates have been on a roll, as lower courts building on Supreme Court jurisprudence have subjected gun control laws to heightened scrutiny.

But last week, the trend stalled. One appeals court upheld laws against carrying concealed guns in two California counties. Another stayed the judgment of a lower court that had struck down Washington, D.C.’s concealed-carry restrictions, signaling it would probably reach a different result. The changed momentum suggests that localities may not lose the ability to regulate concealed handguns -- at least for now.

QuickTake Guns in America

The U.S. Court of Appeals for the Ninth Circuit validated concealed-carry bans in San Diego and Yolo counties. Like many such laws, they require an applicant to show “good cause” to the county sheriff to get permission to carry a concealed handgun.

In an opinion by Judge Willie Fletcher, a Bill Clinton appointee, the court rejected the idea that the Second Amendment  includes a right to carry a concealed gun. It dodged the question of whether the Constitution bestows the right to carry guns openly, a matter the Supreme Court left unresolved in 2008 when it made individual gun ownership a constitutional right.

The Ninth Circuit did follow the Supreme Court’s approach by looking at history. It pointed out that five state constitutions gave local authorities the right to ban concealed weapons in the years after 1868, when the ratification of the 14th Amendment had redefined the relationship of the federal and state governments. It added that six more states allowed counties and municipalities to regulate firearms more generally.

The court cited an 1897 Supreme Court decision in which the court said that “the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.”

For good measure, the court explained that Parliament prohibited concealed weapons in England as early as 1541. The English Bill of rights of 1688-89 guaranteed Protestants a right to bear arms that were “allowed by law,” which concealed weapons were not. That makes it hard to say that the Framers’ generation thought that a right to carry concealed weapons was one of the traditional rights of Englishmen.

What’s striking about the opinion is how it managed to avoid the doctrinal framework that the Supreme Court created in its 2008 gun-rights opinion, D.C. v. Heller, and extended in a 2010 decision, McDonald v. City of Chicago.

By defining the question in terms of whether there was a historic right to carry concealed weapons, the court avoided asking what level of scrutiny it must apply to a gun control ordinance. No right, no scrutiny.

Instead, the court could have asked first whether there is a right to own handguns (yes); second, whether there’s a right to carry them in public for self-defense (maybe); and only then ask if the guns may be concealed.

That’s more or less what the D.C. district court did in May when it struck down the city’s concealed-carry ban. By doing so, the court made it easy to invalidate the law because it couldn’t overcome the extremely high barriers required to limit constitutional rights.

The dissenters in the Ninth Circuit tried to say that because California bans openly carrying guns, a ban on concealed-carry amounts to a ban on handguns outside the home -- which they thought violates the Second Amendment. The majority replied that it wasn’t considering the open-carry right. That’s not a terribly convincing answer -- unless the court expects to strike down open-carry restrictions in the future.

Meanwhile, the same day, a panel of the D.C. Circuit issued a brief order halting enforcement of the ruling against the D.C. concealed-carry ban. The order doesn’t necessarily mean the court will reverse the lower court decision. But it’s a strong signal from a panel with a majority of judges appointed by President Barack Obama.

This matters not only if you don’t want to get shot in D.C., but also for potential Supreme Court review. No court of appeals has yet struck down a concealed-carry ban. So now there’s a conflict for the Supreme Court to resolve between rulings in different circuits.

Ordinarily that would worry gun-rights advocates, who, like activists for many other rights, have made greater progress in the courts than in legislatures. But at the moment, delay may actually serve their long-term interests.

For them, everything depends on the composition of the Supreme Court. Without the late Justice Antonin Scalia, the leading judicial champion of gun rights, the advocates don’t have a majority. If Hillary Clinton becomes president, they might not have a majority for a long time.

Under these circumstances, it would be wiser for gun-rights advocates not tempt the court with more extreme lower court rulings that would probably be repudiated. Their best bet is to hunker down and hope the court doesn’t overturn the Heller and McDonald cases. Eventually they could try to build on those cases again in the future.

If Donald Trump wins, all bets are off. Justices Ruth Bader Ginsburg and Stephen Breyer will try to hold on, but the court could have a conservative majority for another generation. In that case, the gun-rights advocates will keep pushing -- and eventually, they will get the court to hear their case.

  1. “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.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net