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Court Tosses San Diego County's Concealed Weapons Rules

February 17, 2014 1:28 p.m.

GUESTS:

Dan Eaton, legal analyst.

Paul Neuharth, attorney.

Related Story: Court Tosses San Diego County's Concealed Weapons Rules

Transcript:

This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

MAUREEN CAVANAUGH: Our top story on Midday Edition, San Diego Sheriff's office says that the federal court ruling striking down the concealed carry law changes nothing at least for now. The Sheriff's office says that the decision is not changed existing law and the same requirements remain in place to get a concealed weapons permit, but if the courts sweeping the ruling stands, the media quite a lot to change control laws and will be in San Diego but possibly across the nation. If the right to bear arms and self self-defense includes the right to carry concealed weapons, will it make us all safer or make us more likely to be victims of gun violence? I would like to welcome my first guest Paul Neuharth. The lawsuit that you brought specifically challenge that San Diego's requirements to get it permit, why did your politics permit what a concealed carry permit?

PAUL NEUHARTH: My client lives in San Diego 5 two 6 months of the year in on the motorhome and owns property here. He feels like he should have a right to protect himself by having a firearm in his motorhome.

MAUREEN CAVANAUGH: And was he given any reason by the Sheriff's office as to why he was turned down for the permit?

PAUL NEUHARTH: The reasons that the they gave originally, when they turn around for not being a resident of San Diego County, the dismissed that portion and the second was that they found that he did not have good cause and was to have a weapons permit, they should hear the San Diego, and by that means they had their own independent standard set up to evaluate whether or not he needed a win for protection. Go to juice

MAUREEN CAVANAUGH: Did you see the lawsuit as part of a larger Charged. California's laws? Gun laws?

PAUL NEUHARTH: Not necessarily, it's very specified specified to unequal application to the permit, the granting of CCW's two other individuals, who is not part of the broad challenge.

MAUREEN CAVANAUGH: Basically it was permitting San Diego was arbitrary according to your client?

PAUL NEUHARTH: The numbers also show that as well and for the County of maybe 2 to 3,000,000 inhabitants, only 2600 to 2700 concealed weapon permits have been issued that is a very small number, and it really use an independent process where the Sheriff's Department with determine the ability of whether or not you had good cause or not.

MAUREEN CAVANAUGH: Obviously you and your client were hoping to win this appeal, we you surprised by the sweeping nature of this ruling?

PAUL NEUHARTH: I was impressed by the scope of it, the ruling in our favor, and the secular law throughout the United States to now, I am some unappreciative of the mountain depth of research that the court went into into formulating the opinion.

MAUREEN CAVANAUGH: Is there anything that you find wrong with being able to carry concealed weapons [ [ CHECK AUDIO] ]

PAIL NEUHARTH: Carrying a concealed weapon, the only people who are planning on applying our people for law-abiding people during the application process.

MAUREEN CAVANAUGH: I would assume everyone to be law-abiding, do think a lot of people have said this is only a three-judge panel of the Ninth Circuit? Would you think this is going to go to the full panel in the Ninth Circuit?

PAUL NEUHARTH: To the County Council of that, I'm not sure if they're going to look through that for the entire Ninth Circuit or not, probably love a chance to speak in the next week to know the willing panic came out Thursday morning and give us the time to go through it we will contact the County Council.

MAUREEN CAVANAUGH: And are you prepared to bring this to the Supreme Court?

PAUL NEUHARTH: Absolutely.

MAUREEN CAVANAUGH: Okay thank you so much for your time today. In the studio with me now is Dan Eaton. I characterized this ruling of the sweeping initiative [ [ CHECK AUDIO ] ] to for this result the fence, would you agree?

PAUL NEUHARTH: The majority right is to carry weapons for outside of the home for the purpose of self-defense is that he was County policy which limited the ability to carry in this case concealed weapons, only to a small class of people such as those have been subject to specific threats was unconstitutional, and would fringe too much on the Second Amendment right.

MAUREEN CAVANAUGH: Some legal analysts have been seeing this as a route logical projection projection progression of the supreme world Supreme Court ruling in 2008 that found that the second amendment guarantee an individual right to bear arms, remind us of that landmark willing at how this decision might fall for that.

DAN EATON: You are referring to the decision in which specific Supreme Court recognize the individual right to keep and bear arms, that case held that there was an individual right at least to keep a gun in the home, a fully ready in the home, for the purpose of self-defense. And in the Donald case, the extend that come up in the second member right does apply to individuals in this way this decision came out.

MAUREEN CAVANAUGH: The first heard that is an individual right budget for a state militia, and we heard that we can also keep weapons in our home and perhaps outside the home, and this ruling by the Ninth Circuit Court of Appeals says that they're sitting that the right to carry concealed weapons.

DAN EATON: It did not say outside of the home, there may been a hint about the focus of the decision was on home at heart, that is the question of whether it did extend outside of the whole, notice but this ruling focused on, was very interesting because what this ruling turnout was a single verb bear, the second amendment says that you have the right to keep and bear arms, and what does it work better mean? The word very least means occurring that jury that there is a way to carry outside of the home, and has the first guest pointed out, was extensive history suggesting that bear as it was used in the nineteenth century, a lot of discussion of that, it meant to carry outside the home.

MAUREEN CAVANAUGH: Does this ruling make it impossible for states or counties to impose restrictions on who can carry concealed weapons?

DAN EATON: Now does it, just with the good cause requirement imposed to carry concealed weapons of the home, it's too much, California law allows each county and municipality incorporated to set for itself what good cause means, all this Ninth Circuit said is that San Diego County went too far, it's also hard to understand that they said is the right to concealed weapons, not quite the problem this case according to the majority is that California law essentially prohibits the open carrying of weapons, that leaves concealed carrying a weapons, but that is the only way that you carry a gun outside of the home, and if there's a right to carry a gun outside of the home, if you allow people to carry guns outside of the home for the purpose of self-defense, you cannot define good cause in such acidic sureties way that only a very few people will qualify to have this fundamental right to carry a gun outside of the home

MAUREEN CAVANAUGH: That this is my ignorance, of which the all back in the nineteenth century people would carry guns on their holsters, hip, from time to time, are the distinctions that still allow people to open carry weapons? This eatery there are a number of jurisdictions that allow people to open carry weapons in some does ñ jurisdictions they prohibit people from carry concealed weapons and that is the issue, if California allowed the open carrying policy this would have never gone to court, they almost that California essentially prohibits the open carrying of weapons leaving only the concealed carry weapons, and given that there is this right to carry weapons in public, you're only going to allow citizens to carry weapons in a concealed way, you have to allow them to carry weapons in a concealed way for self-defense, you cannot limit to a very small class of people such as those who have been subject to specific facts that might warrant them having the gun for purposes of public confrontation call based on this.

MAUREEN CAVANAUGH: What kinds of restrictions come with this?

DAN EATON: Good character test without effective out of it all, there's still hope are those that charge of all by this, and there may well be certain broad kinds of restrictions and obviously the restriction on prior bear felons is unaffected by this, there's a range of potential restrictions that are still very will permissible searches that allowing people to carry concealed weapons within certain areas such as schools and so on, those are the kinds of restrictions that are allowed in they would issue really has to be looked at from the flipside, to say that you can allow the concealed carry of weapons to be limited only to this tiny class of people who have a specific reason needed. You have to allow concealed weapons to be carried for those who want it for self-defense and subject to time place and manner restrictions that are allowed even for the purpose of exercising First Amendment rights.

MAUREEN CAVANAUGH: Do think one of the problems if you did look at this as a problem, using one of the problems that led to this decision being made is the fact that California allowed each county to make of its own rules to issue a concealed carry permit?

DAN EATON: It may have, the problem is that the state of California had to find good cause the way that San Diego County had, it still would've been shut down, let's be very clear on that, yes it's individual County has the right every individual of this county has a right to bear on the but let us not to find good cause in such a way that you obliterate the white rights to carry weapons in public for self-defense.

MAUREEN CAVANAUGH: Let us talk about the legal issues surrounding this, the three-judge panel voted to the one to overturn San Diego's concealed carry permit equals, if the glyph of the same results in the fertile panel of the Ninth Circuit?

DAN EATON: That is an interesting question, I think you would not have seen the results in a different panel, part of it is sort of the look of the drive the situation, but the fact is that when you have a two to one decision that if that was very forceful and lengthy in the decision, reading some of the same as the authorities of the majority saying that they reached different result because the dissent regarding of whether you could have concealed carry, getting to your question this now those potentially to what your first guest called a perfect potential en banc review, a much larger panel of judges which may well vote to look at this again, and you review this decision began fresh and decide whether this three judge pencil panel got it right, and they it may well reach a different decision.

MAUREEN CAVANAUGH: Do they have to be specifically requested to do that or do they take that up on their own?

DAN EATON: Any judge Petition for en banc review, and all of the active judges get to vote and if they get a sufficient majority the cases scheduled for hearing en banc for the broader panel of judges and judging on the makeup of the panel to Mesa that he got the strong, or they consider majority is right, and the next up is the Supreme Court.

MAUREEN CAVANAUGH: And I want to ask you about that but the timing of this ruling is interesting to me, considering just this weekend in Florida and forty-two is handed down against the so-called loud music shooter Michael Dunn, there's a lot the case in that case of a person shooting a patron in the movie theater, most of these cases involved people legally carrying guns around in public with tragic circumstances, you think that consideration will factor in the legal outcome of this case?

DAN EATON: Judges do not decide things based on the latest news headlines but Benjamin Supreme Court justice for the great tides that involve the rest of that do not to the course the passing the men, judges are aware of what is going on but that said it's very important to understand that cuts both ways and it is also important to get back to my first point, judges rely fundamentally not on the news headlines but on the tax of the particular constitutional text of the Constitution prohibit provision and the understanding of it, and is on that basis the apparatus headliner what is going on certain trial court or other parts of the country that will determine whether this to the one majority in the becoming the law of the land for the city.

MAUREEN CAVANAUGH: That is my question to you to visit a lot of different legal opinion about different aspects of the Supreme Court held a decision, I am wondering do you think if it be this case does go to task the Ninth Circuit, is this a right kind of case to go before the US Supreme Court? Is it ready for big decision?

DAN EATON: This, and it's because as you pointed out that there's a majority of the other serving courts have disagreed that the majority reached in this case essentially holding there is no right to carry arms indication of official right to carry arms in public, therefore there is a split in the circuit, and in those cases where circuit courts disagree about what the meeting of constitutional provisions that is, that is very right for this in print court, it does not like constitutional provisions being applied one way in one part of the country and one way or another, the Seventh Circuit has agreed in that it with the Ninth Circuit things there is the other circuits quitting the Fourth Circuit that have disagreed, this up in court may very well say let's take this one in decide what it really means and whether the right to bear arms really does extend outside of this.

MAUREEN CAVANAUGH: Okay, I have been speaking with Dan Eaton, thank you very much.