District Court Finds No Constitutional Right to Conceal Carry

May 16th, 2011

Judge England in the Eastern District of California issued a 16-page opinion find that the Second Amendment does not protect a right to carry a concealed firearm.

Here is the key analysis section:

However, as the Supreme Court of the United States recently clarified in a landmark case, the “right secured by the Second Amendment is not unlimited. From Blackstone through the 19th- century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554 U.S. at 626. In fact, the Court was careful to explain that their decision did not, in any way, invalidate many of the longstanding state and federal prohibitions on firearm possession. Id. at 627.4 Based upon this, Heller cannot be read to invalidate Yolo County’s concealed weapon policy, as the Second Amendment does not create a fundamental right to carry a concealed weapon in public.

The Court, in a footnote, rejected the proposition that Heller can be read to support 2nd Amendment rights outside the home.

4 Plaintiffs’ implicit argument is that Heller stands for the general right to carry a concealed weapon for self-defense purposes in public. (See Hr’g Tr. 23:9-13 (“There is a right to keep and bear arms. Bear arms means to carry them in public.”).) The Supreme Court does explain that the historical inference of the word “bear” should be interpreted to mean that there is a right to carry “upon the person or in the clothing or in a pocket” a “weapon for a particular purpose – confrontation.” Id. at 584-85. However, Heller’s ultimate holding is not the Court’s interpretation of the historical significance of the Second Amendment’s language. To the contrary, the Court, both in Heller, and subsequently in McDonald, took pain-staking effort to clearly enumerate that the scope of Heller extends only to the right to keep a firearm in the home for self-defense purposes. See supra (emphasis added). This Court does not infer that Heller grants any right that “extends beyond the home,” as Plaintiffs contended during oral argument. (Hr’g Tr. 11:8-10.) Courts “often limit the scope of their holdings, as such limitations are integral” to understanding the holdings’ reach. Vongxay, 594 F.3d at 1115.

The Court proceeds to applying rational basis scrutiny (read government wins), because “the regulation does not place a substantial burden to an individual’s fundamental right.” Addressing Nordyke v. King (2011), the Court finds that rational basis is still appropriate:

In their Summary Judgment Motion, Plaintiffs interpret Heller to mean that rational basis review could not, under any circumstances, be used to evaluate the merits of a policy regulating portions of the Second Amendment. (ECF No. 54-1 at 26.) Indeed, the Ninth Circuit previously interpreted Heller the same way; namely that rational-basis scrutiny would not be appropriate to review Second Amendment restrictions. See Vongxay, 594 F.3d at 1118 n.5. However, earlier this month, the Ninth Circuit read Heller as “insisting that a Second Amendment backed only by rational basis review would have ‘no effect,’” and heightened scrutiny is only appropriate for claims that substantially burden the right to bear and keep arms. Nordyke, 2011 WL 1632063, at *10 (citing Heller, 554 U.S. at 627 n.27) (emphasis added).


This is the test the Court proposes:

In determining whether government action “substantially burdens” a constitutionally-protected right, courts “typically ask whether the restriction leaves open sufficient alternative avenues” for exercising the right. Id. at *7-8. The appropriate inquiry here, under a substantial burden analysis, is whether Yolo County’s restrictions leave Plaintiffs with “reasonable alternative means” to obtain and keep a firearm “sufficient for self-defense purposes.” Id. at *7.

A regulation or policy “does not substantially burden a constitutional right simply because it makes the right…more difficult to exercise.” Nordyke, 2011 WL 1632063, at *8.

As Defendants contend, regulating concealed firearms is an essential part of Yolo County’s efforts to maintain public safety and prevent both gun-related crime and, most importantly, the death of its citizens. Yolo County’s policy is more than rationally related to these legitimate government goals, and Plaintiffs’ Motion for Summary Judgment fails as to this portion of their argument.

The Court decline’s Plaintiff’s request to analogize the Second Amendment to the First Amendment:

Plaintiffs suggest the Court turn to case precedent established from examining the rights and regulations carved from the First Amendment as a framework for assessing those rights indicated under the Second Amendment. However, Plaintiffs do not address the exception in their papers, but cite cases entrenched in First Amendment constitutional analysis. The Court sees no reason to analogize rights under the Second Amendment to those under the First, as plenty of case authority exists to provide a clear framework of analysis to facial challenges, without poaching precedent from another Amendment’s framework.

The Court rejects Plaintiffs’ equal protection argument, relying on Albright v. Oliver, for the proposition that challenges under an enumerated right should be addressed under the relevant constitutional provision (here the 2nd Amendment) rather than a broader substantive due process challenge :

Though the right to keep and bear arms for self-defense is a fundamental right, “that right is more appropriately analyzed under the Second Amendment. Id. (citing Albright v. Oliver, 510 U.S. 266, 273 (1994) (“Where a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing those claims.” (internal citations omitted))).

I address this argument in my article on Village of Willowbrook v. Olech with respect to using the equal protection clause to challenge eminent domain takings under the 5th Amendment.

Why challenge a taking under the Equal Protection Clause when the Takings Clause does the trick? Resolving this tension is essential to validly positing Olech as a constitutional and pragmatic approach to challenging eminent domain abuse.

However, upon closer scrutiny of what the Olech claim seeks to accomplish, this situation is distinguishable. The Takings Clause provides “nor shall private property be taken for public use without just compensation.”91 In the lexicon of Oliver, the plain text of the Amendment suggests three primary constitutional inquiries: (1) whether there is a taking; (2) whether the taking is for public use; and (3) whether the government provides just compensation.92 According to Oliver, these are the “explicit textual source[s] of constitutional protection against a particular sort of government behavior.”93 Thus, if one were to use the Equal Protection Clause to challenge any of these three protections, Oliver would control. For example, if a litigant contended that a taking did not constitute a public use under the Equal Protection Clause, the Court should disregard such an extracurricular appeal to this extraneous constitutional clause. Similarly, if a litigant argued that the compensation was not just, a claim under the Equal Protection Clause should be dismissed under Oliver.

In contrast, an Olech claim, based on the Equal Protection Clause, guards against a totally different evil. The Olech claim protects a class of one that is intentionally and irrationally treated differently from other similarly situated homeowners, and the governmental action results in the taking of his property. The three threshold questions of the Fifth Amendment are not implicated. First, this claim does not query whether a taking exists. Second, the definition of a public use is irrelevant. Third, whether just compensation is provided is of no matter. The Olech claim can only find refuge in the Equal Protection Clause. The Fifth Amendment provides no textual anchor for challenging this species of governmental action. Thus, Oliver does not control, and an appeal to the Equal Protection Clause is an appropriate means in this limited context to challenge eminent domain takings.

In the context of the Second Amendment, an equal protection claim does not assert that someone’s right to keep and bear arms was infringed. Rather an Olech-based equal protection clause challenge asserts that a class of one, however defined, is intentionally and irrationally treated differently from other firearm applicants. I think this is the essence of the equal protection challenge–who gets a permit is determined irrationally.

This should be on appeal soon.