ROBERT SIEGEL, HOST:
A federal appeals court has ruled that Americans do not have a constitutional right to carry concealed weapons in public. The ruling came last night from the Ninth Circuit Court of Appeals in San Francisco. It upheld a California law that requires concealed-carry applicants to show good cause for needing a permit. In other words, giving personal safety as a reason on its own isn't enough. To talk more about this decision and its implications, we're joined by Joseph Blocher. He is a law professor at Duke. As a lawyer, he assisted the District of Columbia in a landmark Supreme Court case which struck down D.C.'s ban on handguns. Welcome to the program.
JOSEPH BLOCHER: Thank you so much for having me.
SIEGEL: This same appeals court, the one that made yesterday's decision, also ruled last month that the Second Amendment protects the right to buy, keep and sell firearms. At the same time, it says it doesn't protect carrying concealed guns in public. What do you make of this interpretation of the Constitution?
BLOCHER: Well, so, interestingly, I think, if you put those opinions together, it shows you, really, sort of overall where the courts are, which is that the Second Amendment protects the right to keep and bear arms. And that includes, you know, a right that is good to strike down certain kinds of state and municipal restrictions. And yet, the right is not unlimited. And so restrictions, including this good-cause restriction, may satisfy the Second Amendment.
SIEGEL: Talk about good cause. How is that typically defined, and what are examples of reasons that would qualify as good cause?
BLOCHER: So it varies depending on where you are, depending on who you ask the question to. And that was actually one of the complications in the case. So California doesn't have a statewide rule on what counts as good cause. It's something that sheriffs really do at a local level. And, you know, so the reasons may vary, but it would certainly include things like, you've been the victim of a violent crime, you're in a business where you're required to carry money that might subject you to certain kinds of crime, that kind of thing.
SIEGEL: What about, I live in a dangerous neighborhood where there've been other muggings? Personally, I've never been stalked, mugged or anything like that.
BLOCHER: Yeah, that's actually where the law starts to have some bite because, generally - and, again, this is generalizing across lots of different laws and lots of different places - but generally, that would probably not be enough. You'd have to show something a little more than just, for example, a fear of crime, probably even if you live in a dangerous neighborhood.
SIEGEL: What does this California decision mean more broadly? What are the implications, both for the West and for the rest of the country?
BLOCHER: So the Ninth Circuit's decision, which came in a case called Peruta, I think has some major implications, not just for the people living in the Ninth Circuit, which amounts to tens of millions of Americans, but also for Second Amendment doctrine, Second Amendment law, because it reaffirms the principle that we've known for years, which is that the right to keep and bear arms is subject to reasonable regulation. And then, it also maybe reduces the chance of Supreme Court review, at least for this particular case. It's always hard to know, but we really have a lot of uniformity in the federal courts of appeals upholding this kind of good-cause restriction. And the Supreme Court tends not to get involved when there's that kind of uniformity.
SIEGEL: In other states that don't have a high bar to get a concealed carry permit, this doesn't change that at all. It just says that they would have a right to raise the bar if they wanted to.
BLOCHER: That's exactly right. This is just about the limits that the Constitution imposes on gun control. It doesn't say anything about what kinds of gun control states should or can pass short of that bar.
SIEGEL: Do gun-control groups have a right to say they've scored a victory in this Ninth Circuit Court of Appeals decision?
BLOCHER: I think absolutely. I think these good-cause restrictions have really been sort of the central battlefield for Second Amendment litigation for the past, really, five years. And the original panel decision here, which struck down that restriction, was one of the bigger victories, I think, for the gun-rights community. So the fact that it's been now replaced with this opinion is a big win for the gun-control community.
SIEGEL: One other point - all of this is about concealed-carry restrictions, not about open-carry laws. That's already taken care of, I assume.
BLOCHER: This is actually a really important. It's actually what divides the opinions in Peruta. So technically, the law that was under challenge here, according to the majority, was this restriction on concealed carry. But there's a separate California law which all but bans open carry. And so the dissenting opinions in the Peruta case - and there were some - argued that you really have to look at those together, that this near-ban on concealed carry and a near-ban on open carry together amount to a ban on public carry, and that goes too far. And the majority said, that's a question for another day. Here, we're just concerned with the concealed-carry part of it. And so what they really disagreed about was how to frame the case, not so much how to understand the Second Amendment.
SIEGEL: Professor Blocher, thank you very much for talking with us.
BLOCHER: Thank you so much for having me.
SIEGEL: Joseph Blocher is a professor of law at Duke University. He spoke to us via Skype.
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