Supreme Court Could Legalize Open Carry in California

A sales associate walks past semiautomatic rifles at Bullseye Sport gun shop in Riverside, Calif., on Dec. 9, 2015. Jae C. Hong/AP Photo

Commentary

The Second Amendment “right to keep and bear arms” soon could be restored to California. Time magazine described the issue at hand in hearings before the court at hearings on Nov. 3. The court “majority appeared to question the constitutionality of a century-old provision in New York state that requires people to prove they have a special need for self-protection if they want to carry a concealed handgun outside of their home.”

California imposes similar restrictions on carrying a concealed handgun. If the New York law is ruled unconstitutional, that likely also would blast away California’s similar restrictions. Although the court is unpredictable, so nothing is definite until the final wording is released.

A big problem with such state restrictions on concealed carry is their arbitrary nature toward honest, law-abiding citizens. (Not at issue is whether criminals can carry concealed weapons; bans on that would remain in place.)

In California, county sheriffs decide who can and cannot get a permit. The rules vary greatly. The liberal coastal county sheriffs generally impose tight restrictions, while rural inland sheriffs generally allow anyone who is a law-abiding citizen, and takes a gun safety course, to be granted a permit.

But the restrictions also vary with the sheriff. The late Sandra Hutchens, while sheriff of Orange County from 2008-19, was highly restrictive. But her successor, Don Barnes, ran and won in 2018 on a platform of advancing gun rights. He recently wrote on his personal website, “In my view any law-abiding citizen who seeks a permit has the right to have one issued.” He said that, since he became sheriff, the Orange County Sheriffs’ Department has issued more than 10,000 permits to residents; Orange County’s population is 3.2 million. “Not one person has misused their permit.”

That’s generally the experience across the country. As research the past 20 years by John Lott and other gun scholars has shown, almost all permit holders use guns responsibly. If they don’t, the first thing that happens is they lose their right to a permit.

In the case before the Supreme Court, President Biden was represented by Brian Fletcher, the principal deputy solicitor general of the United States, who argued for the New York law. Chief Justice John Roberts asked, “When you’re looking for a permit to speak on a street corner ... why do you have to show in this case, convince somebody, that you’re entitled to exercise your Second Amendment right?”

Fletcher responded that a “demonstrated need” was consistent with the Second Amendment.

Roberts then said, “I’m not sure that’s right. … [R]egardless of what the [Constitutional] right is, it would be surprising to have it depend upon a permit system.”

Roberts made a crucial point: We don’t let county sheriffs interpret the Second Amendment rights to speech, religion, the press and assembly. The sheriffs only enforce the laws guaranteeing those rights.

All our rights are uniform across the country since the Fourteenth Amendment stipulated, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Racist New York Gun Law

Something interesting also was brought up by Lott, a former senior advisor for research and statistics at the U.S. Justice Department and currently the head of the Crime Prevention Research Center. He cited “the racist history of concealed carry prohibitions prevented blacks from being able to protect themselves.” That included the New York law.

Wrote J. Michael Luttig, a retired federal Appeals Court Judge and lead author of the brief defending the New York law, “In 1897, this [U.S. Supreme] Court said that it had already long been ‘well-recognized’ that ‘the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.’” He cited the 1897 case Robertson v. Baldwin.

But, Lott noted, Luttig “doesn’t even try to address the fact that the same court that made that decision was the same court that made the infamous Plessy v. Ferguson. That decision is one of the most racist decisions ever by the Supreme Court.

“Plessy v. Ferguson [said] segregated facilities for blacks and whites are constitutional under the separate but equal doctrine. That decision held that as long as the separate facilities were equal in quality, such separation was not unconstitutional. The Crime Prevention Research Center’s Amicus Brief explains why these discretionary concealed handgun laws have been racist.

“Note that there was no change in the membership of the court between these two decisions. Justice John Marshall Harlan was the member who dissented in both of these cases, and the racist history of concealed carry prohibitions prevented blacks from being able to protect themselves.”

Guns vs. the KKK

As America has been having a discussion about race the past several years, seldom has it been mentioned how essential guns were to blacks defending their own rights during the Jim Crow era. Ken Blackwell a few years back wrote a column highlighting this little know history.

He wrote, “In his 2004 book, The Deacons for Defense: Armed Resistance and the Civil Rights Movement, Tulane University history professor Lance Hill tells their story. Hill writes of how a group of southern working class black men advanced civil rights through direct action to protect members of local communities against harassment at schools and polling places, and to thwart the terror inflicted by the Ku Klux Klan. He argues that without the Deacon’s activities the civil rights movement may have come to a crashing halt.”

Soon we’ll see if the Supreme Court agrees that all our rights are secure only when they can be defended by a free people themselves keeping and bearing arms—including in California.