Yesterday, the Federal Court of Appeals for the Ninth Circuit ruled unconstitutional a California law provision requiring that applicants for concealed carry firearms permits to show “good cause” in order to get approval (h/t Volokh Conspiracy). The 2-1 majority opinion concludes by saying…

We are well aware that, in the judgment of many governments, the safest sort of firearm-carrying regime is one which restricts the privilege to law enforcement with only narrow exceptions. Nonetheless, “the enshrinement of constitutional rights necessarily takes certain policy choice of the table….Undoubtedly, some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court [or ours] to pronounce the Second Amendment extinct”. Heller, 554 U.S. at at 636. Nor may we relegate the bearing of arms of a “second-class right, subject to an entirely different body of rules than the other Bills of Rights guarantees that we have held to be incorporated into the Due Process Clause”. McDonald, 130 S. Ct. at 3044.

The district court erred in denying the applicant’s motion for summary judgement on the Second Amendment claim because San Diego County’s “good cause” permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.

And while decisions of the Ninth Circuit are not legally binding on Rhode Island, it is interesting to note that the Rhode Island Supreme Court cited the Ninth Circuit in a 2001 opinion (Mosby v. Devine) to bolster a decision that “bearing arms” only “relates to military service and the common defense”…

The Ninth Circuit has also offered its interpretation of the phrase “bear arms.” See Silveira, 312 F.3d at 1072. Focusing on the second clause of the Second Amendment, the court noted that “the phrase ‘bear arms’ is a phrase that customarily relates to a military function.” Id. Reviewing considerable research on the subject, the court was convinced that “the use of the term ‘bear arms’ generally referred to the carrying of arms in military service – not the private use of arms for personal purposes.”

As evident from the Ninth Circuit’s change of heart, in the wake of the U.S. Supreme Court ruling in DC vs. Heller that the Second Amendment protects individual rights (just like the rest of the Bill of Rights does), attempts to vastly separate a right to “keep” arms from a right to “bear” them have become difficult to seriously sustain.

However, different circuits have reached different conclusions on this matter over the years, so it will take another decision by the Supreme Court to resolve the question once and for all.

In the meantime, the “good cause” requirement struck down by the Ninth Circuit has a direct analog in the “proper showing of need” requirement for obtaining a concealed carry firearms permit from the state’s Attorney General under Rhode Island law. There is no (formal) pressing Constitutional issue with this at the moment, because RI law also allows citizens to obtain firearms permits via their municipal governments, without either “good cause” or a “proper showing of need”. If, however, the local process were to be struck out of the law — as Attorney General Peter Kilmartin proposed last year — a Constitutional  challenge with a reasonable chance of success would almost certainly result.

If there are indeed valid administrative reasons for moving all concealed carry permit issuance in RI to the Attorney General’s office, addressing a serious Constitutional defect in a plan to do this is as easy as removing the “proper showing of need” requirement from the AG’s process.