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The Second Amendment Issue the Supreme Court Can’t Avoid

The court chose not to hear a major case on concealed weapons, but pressure is mounting to remove state barriers.

By MATT VALENTINE

In Harwinton, Connecticut, in the back room of a law office nestled between the Liquor Lady and a plot of weathered gravestones along sleepy Burlington Road, Rachel Baird and Edward Peruta cohost a live-streaming internet talk show at 7 a.m., Mondays through Thursdays. For the edification of their 251 subscribers, they parse the minutiae of constitutional law and discuss the many legal battles in which one or both are personally embroiled—she as attorney, and he as legal investigator (or plaintiff). The set looks a bit like Saul Goodman’s office in "Breaking Bad" — complete with a floor-to-ceiling backdrop of the Declaration of Independence. This week the crew is on vacation, so Rachel sits alone next to an empty chair as the show begins, while Ed operates equipment off camera. When he joins her, the mood is funereal for a moment.

“I can commiserate with you and sympathize with you,” Rachel offers. “How devastating it is when something like this happens.”

For nine years, Ed Peruta has been at the heart of the most significant Second Amendment lawsuit in the country, Peruta v. California. He challenged the state’s relatively strict gun laws and asserted that he had a constitutional right to carry a gun in public spaces. Last Monday, on the final day of its session, the Supreme Court declined his petition for a writ of certiorari, meaning they would not hear arguments and issue a ruling. The upshot is that a lower court decision will stand, and California sheriffs will retain the discretion to deny concealed carry permit applications.

It’s undoubtedly a win for gun control advocates, not only in California but also in eight other states (and the District of Columbia) with similar licensure processes that could have been affected by a Supreme Court ruling. But while the court is done with Peruta’s case, the arguments he raised remain intensely relevant to the national debate over the right to carry a weapon in public. Peruta is one of about 15 million people in the U.S. with a permit to carry a concealed weapon. In fact, he has permits from two states—Connecticut and Florida. But those permits, unlike a license to drive a car, do not give him the right to carry a weapon in every other state. Peruta believes his case has helped to focus national attention on the disparate rights to carry publicly that gun owners experience from state to state.

“The question is, did I really lose?” Peruta asks. He points out that Trump’s electoral victory was spurred, in significant part, by concern about the future interpretation of the Second Amendment and the makeup of the Supreme Court. It was his case that “Second Amendment people” were watching anxiously as they went to the polls last November. Now, with Trump in the White House and Republican majorities in both chambers of Congress, those gun rights advocates might get their desired outcome, even without waiting for the high court to weigh in.

“Regardless of what happens, there has to be reciprocity,” Peruta said. “Reciprocity means you don’t have to buy five different permits to carry in every state you go through,” Peruta says. National reciprocity legislation—which would give gun owners the right to do in New York and Boston what they can do in Atlanta and St. Louis—has been introduced in both the House and Senate, and Trump has already expressed his support.

The underlying issue is that gun regulations vary drastically from one state to another, especially concerning public carry. Today in Texas, it’s legal to strap a fully loaded semiautomatic rifle across your chest and stroll down the busiest boulevards of Dallas or Houston, with no license of any kind. Meanwhile a San Franciscan wishing to carry a small, concealed handgun will almost certainly be denied the required California license, regardless of training or vetting. More than a thousand gun-related bills are introduced each year in statehouses around the country, concerning where, how and by whom guns can be carried, stored, sold, inherited, destroyed, borrowed, modified and displayed. Disparities in gun laws among states have only grown more pronounced with time.

One of the biggest divergences is between “may issue” states and “shall issue” states. As one of nine “may issue” states, California law allows local authorities to issue concealed carry permits to qualified applicants, but gives discretion to local law enforcement. Thirty other states have laws that require local authorities to issue permits to applicants who meet statutory qualifications, with little or no discretion. (There also are a growing number of states—11 at latest count—that have eliminated the license requirement altogether.)

The Supreme Court has been conspicuously reluctant to weigh in on the constitutionality of state laws restricting public carry. Indeed, in his dissent from the court’s decision not to hear Peruta’s case, Clarence Thomas (Joined by Neil Gorsuch) lamented that the court hadn’t taken up a Second Amendment case in seven years—compared to 35 First Amendment and 25 Fourth Amendment cases over the same period. He chastised his colleagues for treating the Second Amendment as a “disfavored right.”

“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force,” Thomas wrote, “the guarantees of the Second Amendment might seem antiquated and superfluous. 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 last significant Second Amendment decision by the Supreme Court came almost a decade ago. In District of Columbia v. Heller, the court radically reversed a decision that had stood since 1939 when it ruled that the Second Amendment protects only weapons appropriate for use by a militia. Justice Antonin Scalia, writing for the majority in the Heller case, recognized that individuals have the right to bear arms, irrespective of service in a militia. But the Heller decision also recognized that “the right secured by the Second Amendment is not unlimited.” There were exceptions to how, where and why that right could be exercised—but rather than define those limitations, the court demurred. There would be time later to address those specifics, Scalia wrote, “if and when those exceptions come before us.”

The ambiguous limitations to which Scalia alluded in the Heller decision (which were only partly clarified by the 2010 decision in McDonald v. Chicago) created an invitation to gun rights advocates to test the limits of the Second Amendment, by challenging gun laws in states with the strictest regulations. Three petitions with complaints similar to Peruta’s reached the Supreme Court in the years that followed, but the justices showed no appetite to hear them. Peruta’s case seemed different—it remained on the docket all year, and was distributed 12 times for conference among the Justices. Several interested parties submitted amicus briefs, including various gun rights and law enforcement organizations. The case would also be the first opportunity for Gorsuch to define his position on gun rights. (The NRA spent millions in support of Gorsuch’s confirmation, despite his very limited track record on Second Amendment jurisprudence. In a newsletter circulated Friday, the lobbying arm of the NRA seemed pleased that he had joined Thomas in dissent.)

Adam Winkler, a law professor at UCLA who has written extensively on gun rights, agrees that the SCOTUS justices might have been contemplating the safety of their own community while they looked at the Peruta case, though not through the same lens Justice Thomas suggests. Forcing “may issue” states to adopt the “shall issue” rubric would result in vastly greater numbers of armed people in America’s largest cities, Winkler explains. Typically, 3 percent to 5 percent of the population will seek concealed carry permits in “shall issue” states. “To put it in terms of numbers,” Winkler says, “Los Angeles County—about 10 million people—has fewer than 600 people with licenses to carry guns on the street. If Los Angeles is forced to move to shall-issue permitting, it's likely that there'll be nearly 300,000 people carrying guns on the streets of Los Angeles, so a huge difference.”

“What might be of most concern to the justices,” Winkler continues, “is it would mean the exact same thing for Washington, DC, where they have to walk on the streets and where they know lots of diplomats and foreign leaders and politicians are around every corner, making the threat of violence and the potential tie to a national security threat pretty significant.”

Many Americans believe that more guns in public places lead to greater safety and lower crime, but a new analysis from researchers at Stanford University suggests the opposite—where gun laws are made more permissive, nonfatal violent crime goes up, and murder rates stay about the same.

The prospect that a court decision or new federal legislation could suddenly and radically transform his state’s strict gun laws worries Frederick Ryan, chief of police in Arlington, Massachusetts.

“This could have really devastating consequences to public safety,” Ryan says. His authority to deny permits to applicants who meet other statutory requirements is important, Ryan says, because local police interact directly with the community and know certain individuals who aren’t suitable to carry guns, even if they have no criminal record.

“You can just run someone—okay, they’re not a felon—great, give them a gun license. But what if we’ve been to their house half a dozen times when they’ve displayed suicidal ideation or homicidal ideation?” Chief Ryan asks. “Those are mental health issues that wouldn’t present themselves in a criminal history investigation, but clearly very concerning to licensing authorities.”

Ryan recounts the story of one permit applicant who had no prior criminal history. Arlington police had been called to the man’s house several times though, responding to mental health emergencies. “There’s an example where we had denied the guy for good reason, because we knew exactly what his intent was,” Ryan says. “We deal with these people day in and day out and we know who they are and we know their pattern of conduct in the community, for those who have come up on our radar and engaged in concerning conduct,” Ryan explains. “There’s a reason Massachusetts has among the lowest gun violence in America. Because we have pretty responsible gun licensing legislation. That’s not a coincidence.”

***

To gun rights activists, the discretionary decisions of local authorities can seem arbitrary, or even prejudicial. Ed Peruta has had, to put it mildly, a mixed relationship with law enforcement. A few of his close friends are active or retired officers. But he also has sued a number of law enforcement agencies on both coasts, and has posted videos online of his confrontations with police (usually stemming from disputes about his right to document police activity as a freelance journalist). In addition to his Second Amendment complaints against San Diego County Sheriff William Gore, Peruta has a separate First Amendment lawsuit against Gore (concerning press credentials), currently on the docket at the 9th Circuit Court of Appeals. Sheriff Gore declined my requests for comment, but it’s safe to assume that Ed Peruta isn’t his favorite person.

Nobody, though—not even Sheriff Gore—disputes Peruta’s competency to handle a firearm. A competitive shooter since age 9, he was a skilled marksman by the time he joined the military. Peruta was a Marine small arms instructor at the U.S. Naval Academy, and had a brief career in law enforcement. Peruta is certified by the National Rifle Association to teach pistol safety, and he completed the eight-hour firearms course required by the state of California. His application wasn’t rejected because he was unfit to carry a firearm, but because he couldn’t articulate a compelling need to do so. (California requires that applicants demonstrate “good cause” for a concealed carry permit.)

If the House passes its version of a bill for nationwide concealed carry reciprocity, Peruta still won’t be able to get a California permit through Sheriff Gore’s office. But he won’t need one. A version of the reciprocity bill now circulating in the House would require every state to recognize concealed carry permits issued in any other state. Peruta has two—one from Connecticut and one from Florida. Those states already have reciprocal arrangements with three-dozen other states where Peruta would be allowed to carry, but California isn’t among them.

Adam Skaggs, chief counsel for the Law Center to Prevent Gun Violence, warns that national concealed carry reciprocity could undermine state gun laws even more than a Supreme Court decision for Peruta might have. “As it's currently drafted, the concealed-carry reciprocity legislation represents an extraordinary violation of basic principles of federalism,” Skaggs said. He points to a handful of states that issue permits with no required training. “Under reciprocity that would effectively become the national norm,” he says.

Many states already have reciprocal relationships honoring each other’s concealed-carry permits. These arrangements sometimes lead to confusion, as in the case of C.J. Grisham, an outspoken gun rights activist in Texas. Grisham was convicted of a Class B misdemeanor, which would ordinarily make him ineligible for a Texas Concealed Handgun License for five years. On social media, though, Grisham brags that he has continuously carried concealed firearms—legally, he believes, because he has out-of-state permits recognized in Texas through reciprocity.

Winkler emphasizes important differences between House and Senate versions of the federal reciprocity legislation. A bill introduced by Texas Sen. John Cornyn would allow people who have been issued a concealed-carry permit in their own state to legally carry their concealed weapon while traveling to (or through) other states. A much more ambitious House bill, introduced by Rep. Richard Hudson of North Carolina, would allow people who live in one state to apply for a permit in any other state, which would then be recognized everywhere.

Hudson told POLITICO that fears about concealed-carry reciprocity are overblown and stem from “a misunderstanding of the legislation.”

“You keep hearing about carrying a gun in Times Square,” Hudson told POLITICO’s John Bresnahan, “If the city of New York prohibits carrying a gun in Times Square, then any visitor with a concealed-carry privilege would have to follow that law and wouldn’t be able to carry their weapon.”

Hudson’s example is either intentionally misleading or the result of his own profound misunderstanding of the way federal, state and local gun policies intersect in American cities. His example assumes that cities can set their own gun ordinances—that’s true for New York, but not for most of the country. In nearly every state, municipal authority to regulate guns has been preempted by state law, following a decades-long lobbying effort led by the National Rifle Association.

“If [Hudson’s bill] gets passed, that's not national reciprocity,” Winkler says. “That is completely overturning the gun laws of America's major cities: New York, Washington, Los Angeles, San Francisco. I'm not being hyperbolic about it. Anybody in those states could get a permit and carry a gun in their own state. If you wanted to get a permit, you just wouldn't go to California authorities—because you can't get one there—you'd just go online and do it through Virginia. Do it the easiest way you can. The states have a big incentive to push this race to the bottom and make it easier and easier for people to get permits.”

If Peruta can’t be the champion for a constitutional right to carry in public, he seems willing to be its martyr. I asked him, a few days before the court issued its final set of orders this summer, how he’d respond if the justices denied his petition. “I would hope that if the Supreme Court fails to take my case, that President Donald Trump would blow his bugle and tweet at 3 a.m.: ‘With the denial of Peruta being heard we need reciprocity across the country.’”

Trump didn’t take the opportunity. The last time he spoke on the issue was during the campaign, when then candidate Trump voiced his support for national concealed carry reciprocity. Other elected officials, though, seem to feel some urgency about the issue. Just hours after the Supreme Court shared its decision not to hear Peruta v. California, the U.S. Conference of Mayors passed a resolution opposing national reciprocity.

Meanwhile, the effort to challenge state gun laws will continue in federal courts. Weeks before the Supreme Court denied Peruta’s petition, I spoke with C.D. Michel, one of his attorneys. Michel has worked closely with the NRA and other gun rights groups on several past cases, and he’s already preparing for the next constitutional battle.

“If it's not this case, sooner or later—I think it's really sooner or soon—the Supreme Court's going to have to take a Second Amendment case,” Michel said. “If it's not this one, there's a bunch of others that are making their way up.”