Supreme Court Denies Appeal in California Gun-Carry Case

Thomas, Gorsuch issue lengthy, strongly worded dissent

Supreme Court Justice Clarence Thomas / Getty Images
June 26, 2017

The Supreme Court denied the appeal of a California gun-carry case on Monday, leaving a lower court decision upholding the state's restrictive gun-carry law in place.

Peruta v. California dealt with a dispute over whether or not California's gun-carry laws are constitutional. In California, as in a handful of other deep-blue states, open carry of a gun in public is generally prohibited while concealed carry is allowed but only through a strict permitting process. The system governing the issuance of a concealed-carry permit, commonly called a "may issue" system, leaves the final decision on whether or not an otherwise-qualified citizen can obtain a permit up to a government official. Even if a citizen were able to pass the background check required under California's concealed-carry law and obtain the required training, he could still be denied a permit if the government official in charge of issuing them believes he doesn't have a "good cause" for wanting one. A generic desire to carry a gun for self-defense purposes is generally not considered a "good cause" under California's law.

A number of California residents who would otherwise qualify for a concealed-carry permit but were denied under the "good cause" clause of the law sued the state, claiming their Second Amendment right to keep and bear arms was being infringed upon. The National Rifle Association (NRA) and other gun-rights organizations supported the suit.

A panel of Ninth Circuit judges first held in favor of the plaintiffs and found the "good cause" clause in combination with other parts of the law to be unconstitutional. On appeal, however, the full Ninth Circuit reversed the decision and sided with California by ruling the Second Amendment does not specifically protect the concealed carry of guns.

In a dissent from Monday's Supreme Court decision not to hear the case, Justice Clarence Thomas and new Justice Neil Gorsuch called the Ninth Circuit's decision "indefensible" and accused the Supreme Court of treating the Second Amendment as a "disfavored right"—Thomas wrote the strongly worded dissent and Gorsuch joined him. The orders issued on Monday are among the first that Gorsuch has participated in.

The two took special exception to the Ninth Circuit's decision to focus only on whether concealed carry of a gun was constitutionally protected and not the broader question of whether California's effective ban on all forms of gun carry is constitutional.

"We should have granted certiorari in this case," Thomas wrote in the dissent. "The approach taken by the en banc court is indefensible, and the petition raises important questions that this Court should address. ... The en banc court's decision to limit its review to whether the Second Amendment protects the right to concealed carry—as opposed to the more general right to public carry—was untenable. Most fundamentally, it was not justified by the terms of the complaint, which called into question the State's regulatory scheme as a whole."

Thomas went on to say the Second Amendment likely does protect some form of public gun 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," he said.

The dissent went beyond the scope of the Peruta case, though, and complained that the Supreme Court has been reluctant to take any Second Amendment cases in recent years.

"The Court's decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right," Thomas said in the dissent. "The Court has not heard argument in a Second Amendment case in over seven years—since March 2, 2010, in McDonald v. Chicago, 561 U. S. 742. Since that time, we have heard argument in, for example, roughly 35 cases where the question presented turned on the meaning of the First Amendment and 25 cases that turned on the meaning of the Fourth Amendment."

Thomas then suggested members of the Supreme Court, surrounded by armed security at almost every waking moment, may think Second Amendment rights are outdated and chastised that idea.

"For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous," he said. "But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it."

The NRA released a statement condemning the Supreme Court's decision not to hear Peruta v. Califonia.

"We are disappointed in the Court's rejection of the appeal in Peruta v. California, which now leaves millions of law-abiding Californians with no ability to bear arms outside the home," Chris Cox, the head of the NRA's Institute for Legislative Action, said in a statement. "As Justices Thomas and Gorsuch correctly stated, too many courts have been treating the Second Amendment as a second-class right. That should not be allowed to stand."

The gun-rights group said it would continue the legal battle for gun carry.

"As the Supreme Court stated in its landmark decision in Heller v. District of Columbia, the Second Amendment guarantees an individual right to keep and bear arms for self-defense," Cox said. "The framers of our Constitution did not intend to limit that right to the home. We look forward to a future Court affirming that the right to keep and bear arms is as much a part of our Constitution as the other enumerated rights that it protects. We will not stop fighting until a future Court affirms this fundamental right."