Hey, did you notice that Dennis Daugaard and Marty Jackley were on the wrong side of another culture-war lawsuit last week?
- The applicant is of good moral character.
- Good cause exists for issuance of the license.
- The applicant is a resident of the county or a city within the county, or the applicant’s principal place of employment or business is in the county or a city within the county and the applicant spends a substantial period of time in that place of employment or business.
- The applicant has completed a course of training as described in Section 26165 [Circuit Judge William Fletcher, Opinion, Peruta v. Cty. of San Diego (#10-56971), 2016.06.09].
The brief Daugaard joined argued that citizens don’t have to demonstrate “good cause” to exercise their gun rights any more than we have to demonstrate “good cause” to speak, pray, or refuse to quarter soldiers. Governor Daugaard also signed onto the argument that concealed-weapon permit holders in Texas are far less likely to commit crimes than the general population and that the state thus lacks any compelling public safety justification. Governor Daugaard’s brief backed that claim with John Lott’s dishonest and well-debunked data.
Jackley and fellow A.G.s focused on arguing that bearing arms entails being able to carry a concealed firearm for self-defense outside one’s home. Jackley et al. contend that we can’t maintain a well-regulated militia if we can’t carry our guns past our doorstep.
Seven of eleven judges of the Ninth Circuit rejected South Dakota’s arguments on behalf the plaintiffs and held that the Second Amendment does not grant a right to carry concealed firearms in public. Ninth Circuit Judge William Fletcher pointed to language in Heller (2008) in which the U.S. Supreme Court, while affirming the right to keep firearms in one’s home for self-defense, acknowledged that the Second Amendment does not grant “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” and that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment….” Judge Fletcher says it was actually an overwhelming majority and all states that took up the question in the latter half of the 19th century that found neither the Second Amendment nor state constitutions including a right to carry concealed weapons in public.
Judge Fletcher tracks the history of the right to bear arms through 500 years of English and colonial law and restrictions on “pocket pistol[s], skeins, stilladers, daggers or dirks.” Fletcher’s majority opinion cites precedent from a variety of states, including a Georgia 1846 ruling saying that “suppress[ing] the practice of carrying certain weapons secretly… does not deprive the citizen of his natural right of self-defense, or of his constitutional right to keep and bear arms.” A Louisiana 1850 ruling held that the Second Amendment “is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages an unmanly assassinations.”
With keen relevance to our post-Orlando discussion of the Second Amendment, Judge Fletcher notes a Texas 1873 ruling that construed “arms” as referring only to weapons “used for purposes of war”:
To refer the deadly devices and instruments called in the statute “deadly weapons,” to the proper or necessary arms of a “well-regulated militia,” is simply ridiculous. No kind of travesty, however subtle or ingenious, could so misconstrue this provision of the constitution of the United States, as to make it cover and protect that pernicious vice, from which so many murders, assassinations, and deadly assaults have sprung, and which it was doubtless the intention of the legislature to punish and prohibit [English v. State, 35 Texas 473 (1871), cited in Peruta v. San Diego, 2016].
A later West Virginia ruling upheld the idea that the Second Amendment applies strictly to “the weapons of warfare to be used by the militia… in defending the state and civil liberty” and not deadly instruments “habitually carried by bullies, blackguards, and desperadoes, to the terror of the community and the injury of the state.”
Daugaard and Jackley were thus arguing in favor of a right that does not exist. Hundreds of years of English law that informed the Second Amendment and subsequent interpretation of that amendment by our state courts make clear that the right to bear arms does not include a right to carry concealed weapons in public.