Peruta v. San Diego:  The Right to Carry Outside Your Home

by Alexandria Kincaid

Do you think the Second Amendment protects your right to “keep and bear arms” outside your own home?  Earlier in 2017, the United States Supreme Court refused to answer this question. With its refusal, the Court failed to protect millions of Americans who live in states where carrying a firearm outside a personal residence is severely restricted by law. Those states include California.  The California lawsuit saga began in 2009, when five California gun owners filed suit in a case called Peruta v. San Diego to attempt to get the court system’s help with their state’s out-of-control gun control laws.  Their battle ended in 2017 with the Supreme Court’s refusal to provide much-needed guidance to our lower courts on our right to carry.

The issue in the Peruta case was not merely a question of a person’s right to carry a concealed handgun.  The question in the Peruta case also was not merely about a right to open carry.  Instead, the issue in Peruta derives from the intersection of California’s restrictions on both open and concealed carry, which amount to a complete prohibition on carrying a loaded, accessible, self-defense firearm outside the protective walls of a person’s own home.

Simply put, with very limited exceptions, Californians cannot legally openly carry a firearm in public, and Californians also are not guaranteed the ability to carry a concealed firearm in public. These combined prohibitions result in some California residents having no legal means to carry a firearm outside their own homes at all.

Because the Supreme Court refused to provide guidance, the decision of the lower federal court (the Ninth Circuit Court of Appeals) denying Californians the right to carry a defensive firearm outside their homes will remain the law until something changes.

In reaching its decision to uphold California’s restrictive gun control laws, the Ninth Circuit Court of Appeals wrote 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.”  Noticeably missing from the Ninth Circuit’s opinion is an analysis of whether the Second Amendment protects a right to carry firearms for defensive use outside one’s own home in any respect, rather than just focusing on the concealed carry issues.

When the Supreme Court refused to review the case, two Supreme Court justices, Justice Thomas and Justice Gorsuch, wrote a separate, dissenting (opposing) opinion.  In their opinion, they argue that the Supreme Court should step-in and clarify whether or not the Second Amendment protects our right to carry outside our own homes.  These Justices pointed out that the Ninth Circuit’s decision rested its analysis on concealed carry prohibitions and failed to address the right to carry at all. They argued that had the Ninth Circuit answered the real question in the case, it would have had to reach a different conclusion, because the Supreme Court has already suggested that the Second Amendment protects the right to carry in public in some fashion.  “As we explained in Heller, to ‘bear arms’ means to ‘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.’ . . . The most natural reading of this definition encompasses public carry. I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”

They also pointed out that it has been over seven years since the Supreme Court heard argument on a Second Amendment case. In fact, the Law Center to Prevent Gun Violence (LCPGV) reported in August of 2016 that in the last eight years, the U.S. Supreme Court has rejected more than 70 cases seeking to expand the very limited right to “keep and bear arms” in our own homes.  The LCPGV also claims that there have been over 1,090 Second Amendment cases challenging gun laws nationwide, with an overwhelming majority – 94% – of the lower court decisions upholding those laws.

In comparison, during that same time period, the Supreme Court has heard 35 cases regarding the First Amendment and 25 cases about the Fourth Amendment. According to the Supreme Court website, of the 7,000 to 8,000 certiorari petitions filed each term, the court grants certiorari and hears oral argument in only about 80. Granting a certiorari petition requires the votes of four justices.

How does the Supreme Court decide which cases to hear?  A major consideration for the Justices in deciding which cases to hear is supposed to be whether courts hearing a similar case (like the right to carry outside of your own home) have created the proverbial cluster.  The Supreme Court is unlikely to hear a case unless a state’s highest court or federal court of appeals issues a decision that creates a split with another similar court on a question of federal law, such as the interpretation and meaning of the United States Constitution.

This selection criteria, however, would mandate that the Court would review a case like Peruta, because twenty-six states have asked our nation’s highest court to resolve the same issue presented in Peruta.  Justice Thomas and Justice Gorsuch pointed out that at “least four other Courts of Appeals and three state courts of last resort have decided cases regarding the ability of States to regulate the public carry of firearms.  Those decisions . . . have produced thorough opinions on both sides of the issue.”  In other words, the cluster has been created, and the courts are split on how to interpret the Second Amendment with respect to our right to carry outside of our homes.  Direction of the Supreme Court is sorely needed.

Where do we go from here?  It should be obvious that what, exactly, the Second Amendment protects is still being decided by the court system.  The Peruta case is a prime example of how courts will limit our ability to defend ourselves.  In the eyes of some judges, the Second Amendment is nothing more than a privilege that affords different degrees of protection, depending on where you live.  In some locations, the ability to carry outside our homes may still be a protected right.  In other locations, it is only a privilege granted at the whim of a sheriff. Until our Supreme Court provides an opinion on your right to carry outside your own home, more states could pass laws that prevent you from doing so as well, and until the balance of the United States Supreme Court shifts to provide us with Justices who see the Second Amendment as an important issue, we are at the mercy of different judges around the country issuing different decisions about your right to carry and defend yourself.