Concealed Carry Ruling

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The Ninth Circuit Court of Appeals has ruled against the right to carry concealed firearms in a California case. Arizona State University law professor Paul Bender will tell us the legal implications of the ruling.

Ted Simons: Coming up next on "Arizona Horizon," a federal appeals court rules against the right to carry concealed firearms.

Ted Simons: And also tonight, we'll meet the new director of the Arizona opera. Those stories next on "Arizona Horizon."

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Ted Simons: Good evening and welcome to "Arizona Horizon," I'm Ted Simons.

Ted Simons: Additional evacuations were called for today near Yarnell as a wildfire continues to threaten the area. 30 homes were evacuated today, this as an evacuation order remains in effect for 250 other homes.

Lauren Kormylo: It's nerve-wracking; waiting to see if your place is burning, the fire three years ago, our house didn't burn, although 3-fourths of the property did. We were kept out for eight days and we didn't know if we had a house to come back to or not. It makes you very nervous.

Ted Simons: The Tenderfoot Fire is 10% contained and has burned over 1,200 acres. The fire is burning close to the site of the 2013 Yarnell Hill tragedy, which took the lives of 19 Granite Mountain Hotshot firefighters.

Ted Simons: The Ninth Circuit Court of Appeals today ruled against the right to carry concealed weapons in public under the Second Amendment. Here to explain the legal Implications of the ruling and Its impact on Arizona is ASU law Professor, Paul Bender. Good to see you.

Paul Bender: Good to see you, Ted.

Ted Simons: What exactly did the ninth circuit decide?

Paul Bender: Remember this is the ninth circuit en banc. They had too many to fit on a single bench but this establishes the law of the circuit law of the circuit they held 7-4 that the Second Amendment does not protect the right to carry a concealed weapon in any circumstances. There is no Second Amendment protection for that. It's just like it wasn't a gun at all and therefore, California's prohibition of carrying concealed weapons, unless you get a permit from your local sheriff and you have to show in California not only that you're not a felon and that you're of good moral character, you have to go through a training course and you have to have a good reason and that's the thing that was being challenged here, two people were denied permits because they didn't have a good reason and a good reason -- a good reason can vary from county to county but in these two counties because the state left it up to the counties to define that, in these two counties, a good reason did not include just general fear of being attacked on the streets. You had to have a specific threat that you were trying to respond to or you had already been shot at or something like that. And so they said that's unconstitutional, we have to be able to carry a concealed weapon, even though we haven't had a specific threat and the ninth circuit held there is no constitutional right under any circumstances to carry a concealed weapon.

Ted Simons: Now, again you mentioned this was en banc. Usually, when we hear ninth circuit decisions, it's a three panel deciding factor there. The difference for us between three panels and en banc and it sounds like there were only 11 judges here. It doesn't sound like much --

Paul Bender: It's a problem in the ninth circuit because they have so many judges that they don't think they can fit them all onto one bench to hear one case. They have more than 20 judges there so for years they have picked 11 people at random so you could get a panel that is not representative of the whole circuit. I don't really know enough about these particular judges to know how representative they are. I don't know anyone on the panel, the only one I know well is Barry Silverman and the one who wrote the opinion I know, judge Fletcher but they are not people I can readily say whether they're liberal or conservative.

Ted Simons: 7-4 decision. And again, this is for California. What about Arizona? What about Arizona's concealed carry law?

Paul Bender: Well, if Arizona wanted to prohibit concealed carry, then this decision would make that unconstitutional but Arizona is not about to prohibit concealed carry and so this has no effect on Arizona.

Ted Simons: None whatsoever?

Paul Bender: No, not really. It only has an effect on places that would want to prohibit concealed carry, altogether, or put strict regulations on concealed carry. It's only in states that want to do that that this has any effect. It's a very important decision nationwide, though, because in the two cases in which the court has established that there's an individual Second Amendment right, a personal right to bear arms, they are only established that there's a personal right to bear handguns in your house, that's what those cases have involved. They have left open whether it's more than handguns and whether it's more than your house. And so this is the first case in an en banc panel, there have been panels that have faced these issues, the first -- I'm sorry, an en banc court faced some of those other issues, the issue was is the right to carry a weapon, a concealed weapon covered by the Second Amendment? And if it's covered, then you should -- we don't know what the standard of review is or the level of scrutiny as people say because the court in the Heller case where they established this right refused to say whether they're going to treat it like free speech where you need a compelling interest or gender, what the court said is we don't have to face that because concealed carry is totally outside the bounds of the Second Amendment. So that's -- if that's true, that's a very important decision nationwide because there are a lot of states that do want to regulate concealed carry.

Ted Simons: What about if someone from Arizona decides to challenge Arizona's concealed carry law? I mean, how far does that go, especially when the ninth circuit is saying we don't think concealed carry is covered?

Paul Bender: Well, I don't think Arizona has really strong regulations on concealed carry.

Ted Simons: But they want to challenge the idea that there should be?

Paul Bender: There's no constitutional right for gun control.

Ted Simons: So they can't just jump on board and say there's an opening, we should do X., Y., Z., they can't do that?

Paul Bender: Any state that wanted to ban concealed carry has an opening but a state like Arizona which doesn't want to do that, that has no immediate effect but it has potentially a big effect on development of the Second Amendment right nationwide because there's a big unanswered question, what guns does it apply to, whether does it apply, guns in houses only, on the street, other places and if it does apply, what level of justification does the state have to have to ban guns? It's not an absolute right. Scalia said in his opinion in heller that it's not an absolute right, and he mentions all kinds of regulations but those regulations have not been tested yet.

Ted Simons: Real quickly, it does affect Arizona residents visiting California.

Paul Bender: Absolutely. Yeah. They should not be carrying concealed weapons, unless they get permission from the local sheriff.

Ted Simons: And unless this -- this will be challenged won't it?

Paul Bender: Well, yeah, it will be challenged I'm sure but when the Supreme Court would take a case like this and given the current status of the court only having eight people when they would decide a case like this, who knows? Now, they might issue a temporary order in which they stay this but you just don't know whether they'll do that or not but as things now stand you have no right -- California prohibits you from concealed carry unless you get permission from the local sheriff and if somebody goes to California without that, they would be committing a California crime.

Ted Simons: Real quickly. If I'm living in San Diego county and I want to go to I don't know Napa county, San Diego won't give me the permit. Napa sheriff might do that. Have to be where you reside?

Paul Bender: I think, I don't know this, I'm making this up because I read this case, it's a long case but I think if the sheriff in your county okays you, then you're okay in other counties.

Ted Simons: Everyone can't go flooding into a county where a guy is going to say you're okay.

Paul Bender: You have to live in the county in order to get permission.

Ted Simons: All right, good stuff Paul, always a pleasure.

Paul Bender: Nice to see you, Ted.

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Paul Bender: Arizona State University Law Professor

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