FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EDWARD PERUTA; MICHELLE No. 10-56971 LAXSON; JAMES DODD; LESLIE BUNCHER, DR.; MARK CLEARY; D.C. No. CALIFORNIA RIFLE AND PISTOL 3:09-cv-02371- ASSOCIATION FOUNDATION, IEG-BGS Plaintiffs-Appellants, v. OPINION COUNTY OF SAN DIEGO; WILLIAM D. GORE, individually and in his capacity as Sheriff, Defendants-Appellees. Appeal from the United States District Court for the Southern District of California Irma E. Gonzalez, Chief District Judge, Presiding Argued and Submitted December 6, 2012—San Francisco, California Filed February 13, 2014 Before: Diarmuid F. O’Scannlain, Sidney R. Thomas, and Consuelo M. Callahan, Circuit Judges. Opinion by Judge O’Scannlain; Dissent by Judge Thomas 2 PERUTA V. COUNTY OF SAN DIEGO SUMMARY* Civil Rights The panel reversed the district court’s summary judgment and held that a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense. Plaintiffs challenged a County of San Diego policy which interpreted California’s restriction on carrying handguns in public. California generally prohibits the open or concealed carriage of a handgun, whether loaded or unloaded, in public locations, absent the showing of, among other things, good cause. Under San Diego’s policy, concern for one’s personal safety alone is not considered good cause. The panel first held that a law-abiding citizen’s ability to carry a gun outside the home for self-defense fell within the Second Amendment right to keep and bear arms for the purpose of self-defense. Applying the analysis set forth in District of Columbia v. Heller, 554 U.S. 570 (2008), the panel then held that it did not need to apply a particular standard of heightened scrutiny to the San Diego policy because the “good cause” restriction amounted to a destruction of the Second Amendment right altogether. The panel concluded that San Diego County’s “good cause” permitting requirement impermissibly infringed on the Second Amendment right to bear arms in lawful self-defense. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. PERUTA V. COUNTY OF SAN DIEGO 3 Dissenting, Judge Thomas stated that San Diego County’s “good cause” policy fell squarely within the Supreme Court’s definition of a presumptively lawful regulatory measure. Judge Thomas stated that in dealing a needless, sweeping judicial blow to the public safety discretion invested in local law enforcement officers and to California’s carefully constructed firearm regulatory scheme, the majority opinion conflicted with Supreme Court authority, the decisions of sister circuits, and Ninth Circuit precedent. COUNSEL Paul D. Clement, Bancroft PLLC, Washington, D.C., argued the cause for the plaintiffs-appellants. Carl D. Michel, Michel & Associates, P.C., Long Beach, California, filed the briefs for the plaintiffs-appellants. With him on the opening brief were Glenn S. McRoberts, Sean A. Brady, and Bobbie K. Ross, Michel & Associates, P.C., Long Beach, California. With him on the reply brief were Glenn S. McRoberts, Sean A. Brady, and Bobbie K. Ross, Michel & Associates, P.C., Long Beach, California, and Paul Neuharth, Jr., Paul Neuharth, Jr. APC., San Diego, California. James M. Chapin, Senior Deputy Attorney for County of San, San Diego, California, argued the cause and filed the brief for the defendants-appellees. With him on the brief was Thomas E. Montgomery, County Counsel for County of San Diego, San Diego, California. Stephen P. Halbrook, Fairfax, Virginia, filed the brief on behalf of amicus curiae Congress of Racial Equality, Inc. in support of the plaintiffs-appellants. 4 PERUTA V. COUNTY OF SAN DIEGO Paul D. Clement, Bancroft PLLC, Washington, D.C., filed the brief on behalf of amicus curiae National Rifle Association of America, Inc. in support of plaintiffs-appellants. David B. Kopel, Independence Institute, Golden, Colorado, filed the brief on behalf of amici curiae International Law Enforcement Educators and Trainers Association and the Independence Institute. Alan Gura, Gura & Possessky, PLLC, Alexandria, Virginia, filed the brief on behalf of amici curiae Second Amendment Foundation, Inc., Calguns Foundation, Inc., Adam Richards, and Brett Stewart in support of plaintiffs-appellants. John C. Eastman, Chapman University School of Law, Orange, California, filed the brief on behalf of amici curiae Center for Constitutional Jurisprudence, Doctors for Responsible Gun Ownership, and Law Enforcement Alliance of America. With him on the brief were Anthony T. Caso and Karen J. Lugo. Don B. Kates, Battle Ground, Washington, filed the brief on behalf of amici curiae Gun Owners of California and Senator H.L. Richardson (Ret.) in support of plaintiffs-appellants. Neil R. O’Hanlon, Hogan Lovells US LLP, Los Angeles, California, filed the brief on behalf of amici curiae Brady Center to Prevent Gun Violence, the International Brotherhood of Police Officers, and the Police Foundation. With him on the brief were Adam K. Levin, S. Chartey Quarcoo, and Samson O. Asiyanbi, Hogan Lovells US LLP, Washington, D.C., and Jonathan E. Lowy and Daniel R. Vice, Brady Center to Prevent Gun Violence, Washington, D.C. PERUTA V. COUNTY OF SAN DIEGO 5 Paul R. Coble, Law Offices of Jones & Mayer, Fullerton, California, filed the brief on behalf of amici curiae California State Sheriffs Association, California Police Chiefs Association, and California Peace Officers Association in support of defendants-appellees. With him on the brief was Martin J. Mayer, Law Offices of Jones & Mayer, Fullerton, California. Simon J. Frankel, Covington & Burling LLP, San Francisco, California, filed the brief on behalf of amici curiae Legal Community against Violence, Major Cities Chiefs Association, Association of Prosecuting Attorneys, and San Francisco District Attorney George Gascón in support of defendants-appellees. With him on the brief were Samantha J. Choe, Steven D. Sassaman, and Ryan M. Buschell, Covington & Burling LLP, San Francisco, California. OPINION O’SCANNLAIN, Circuit Judge: We are called upon to decide whether a responsible, law- abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense. I A California generally prohibits the open or concealed carriage of a handgun, whether loaded or unloaded, in public 6 PERUTA V. COUNTY OF SAN DIEGO locations.1 See Cal. Penal Code § 25400 (prohibiting concealed carry of a firearm); id. § 25850 (prohibiting carry of a loaded firearm); id. § 26350 (prohibiting open carry of an unloaded firearm); see also id. § 25605 (exempting the gun owner’s residence, other private property, and place of business from section 25400 and section 26350). Nonetheless, one may apply for a license in California to carry a concealed weapon in the city or county in which he or she works or resides. Id. §§ 26150, 26155. To obtain such a license, the applicant must meet several requirements. For example, one must demonstrate “good moral character,” complete a specified training course, and establish “good cause.” Id. §§ 26150, 26155. California law delegates to each city and county the power to issue a written policy setting forth the procedures for obtaining a concealed-carry license. Id. § 26160. San Diego County has issued such a policy. At issue in this appeal is that policy’s interpretation of the “good cause” requirement found in sections 26150 and 26155: “[A] set of circumstances that distinguish the applicant from the 1 There are a few narrow exceptions to this rule. Armored vehicle guards and retired federal officers may carry a loaded firearm in public without meeting stringent permitting requirements. See Cal. Penal Code § 26015 (armored vehicle guards); id. § 26020 (retired federal officers). And a citizen may carry a loaded firearm in public if: (1) he is engaged in the act of attempting to make a lawful arrest; (2) he is hunting in locations where it is lawful to hunt; or (3) he faces immediate, grave danger provided that the weapon is only carried in “the brief interval” between the time law enforcement officials are notified of the danger and the time they arrive on the scene (where the fleeing victim would obtain a gun during that interval is apparently left to Providence). Id. § 26040 (hunting); id. § 26045 (immediate, grave danger); id. § 26050 (attempting to make a lawful arrest). PERUTA V. COUNTY OF SAN DIEGO 7 mainstream and causes him or her to be placed in harm’s way.” Good cause is “evaluated on an individual basis” and may arise in “situations related to personal protection as well as those related to individual businesses or occupations.” But—important here—concern for “one’s personal safety alone is not considered good cause.” The power to grant concealed-carry licenses in San Diego County is vested in the county sheriff’s department. Since 1999, the sheriff’s department has required all applicants to “provide supporting documentation” in order “to demonstrate and elaborate good cause.” This “required documentation, such as restraining orders, letters from law enforcement agencies or the [district attorney] familiar with the case, is discussed with each applicant” to determine whether he or she can show a sufficiently pressing need for self-protection. If the applicant cannot demonstrate “circumstances that distinguish [him] from the mainstream,” then he will not qualify for a concealed-carry permit. B Wishing to carry handguns for self-defense but unable to document specific threats against them, plaintiffs Edward Peruta, Michelle Laxson, James Dodd, Leslie Buncher, and Mark Cleary (collectively “the applicants”), all residents of San Diego County, were either denied concealed-carry licenses because they could not establish “good cause” or decided not to apply, confident that their mere desire to carry for self-defense would fall short of establishing “good cause” as the County defines it. An additional plaintiff, the California Rifle and Pistol Association Foundation, comprises many San Diego Country residents “in the same predicament 8 PERUTA V. COUNTY OF SAN DIEGO as the individual Plaintiffs.” No plaintiff is otherwise barred under federal or state law from possessing firearms. C On October 23, 2009, after the County denied his application for a concealed-carry license, Peruta sued the County of San Diego and its sheriff, William Gore (collectively “the County”), under 42 U.S.C. § 1983, requesting injunctive and declaratory relief from the enforcement of the County policy’s interpretation of “good cause.” Peruta’s lead argument was that, by denying him the ability to carry a loaded handgun for self-defense, the County infringed his right to bear arms under the Second Amendment. About a year later, the applicants and the County filed dueling motions for summary judgment. The district court denied the applicants’ motion and granted the County’s. Assuming without deciding that the Second Amendment “encompasses Plaintiffs’ asserted right to carry a loaded handgun in public,” the district court upheld the County policy under intermediate scrutiny. As the court reasoned, California’s “important and substantial interest in public safety”—particularly in “reduc[ing] the risks to other members of the public” posed by concealed handguns’ “disproportionate involvement in life-threatening crimes of violence”—trumped the applicants’ allegedly burdened Second Amendment interest. The district court rejected all of the other claims, and the applicants timely appealed. PERUTA V. COUNTY OF SAN DIEGO 9 II As in the district court, on appeal the applicants place one argument at center stage: they assert that by defining “good cause” in San Diego County’s permitting scheme to exclude a general desire to carry for self-defense, the County impermissibly burdens their Second Amendment right to bear arms. The Supreme Court’s opinions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), direct our analysis of this claim. In Heller, the Court confronted a Second Amendment challenge to a District of Columbia law that “totally ban[ned] handgun possession in the home” and “require[d] that any lawful firearm in the home be disassembled or bound by a trigger lock.” 554 U.S. at 603, 628–29. The validity of the measures depended, in the first place, on whether the Second Amendment codified an individual right, as plaintiff Dick Heller maintained, or a collective right, as the government insisted. Id. at 577. Consulting the text’s original public meaning, the Court sided with Heller, concluding that the Second Amendment codified a pre-existing, individual right to keep and bear arms and that the “central component of the right” is self-defense. Id. at 592, 599. It further held that, because “the need for defense of self, family, and property is most acute in the home,” the D.C. ban on the home use of handguns—“the most preferred firearm in the nation”—failed “constitutional muster” under any standard of heightened scrutiny. Id. at 628–29 & n.27 (rejecting rational-basis review). The same went for the trigger-lock requirement. Id. at 635. The Court had no need to “undertake an exhaustive historical analysis 10 PERUTA V. COUNTY OF SAN DIEGO . . . of the full scope of the Second Amendment” to dispose of Heller’s suit. Id. at 626–27. Nor had it reason to specify, for future cases, which burdens on the Second Amendment right triggered which standards of review, or whether a tiered- scrutiny approach was even appropriate in the first place. Id. at 628–29. By any measure, the District of Columbia law had overreached. Two years later, the Court evaluated a similar handgun ban enacted by the City of Chicago. The question presented in McDonald, however, was not whether the ban infringed the city residents’ Second Amendment rights, but whether a state government could even be subject to the strictures of the Second Amendment. That depended on whether the right could be said to be “deeply rooted in this Nation’s history and tradition” and “fundamental to our scheme of ordered liberty.” 130 S. Ct. at 3036. To these questions, the McDonald Court declared, “[o]ur decision in Heller points unmistakably to the answer.” Id. After all, self-defense, recognized since ancient times as a “basic right,” is the “central component” of the Second Amendment guarantee. Id. Consequently, that right restricted not only the federal government but, under the Fourteenth Amendment, also the states. Id. at 3026. Having so concluded, the Court remanded the case to the Seventh Circuit for an analysis of whether, in light of Heller, the Chicago handgun ban infringed the Second Amendment right. Id. at 3050. It doesn’t take a lawyer to see that straightforward application of the rule in Heller will not dispose of this case. It should be equally obvious that neither Heller nor McDonald speaks explicitly or precisely to the scope of the Second Amendment right outside the home or to what it takes to “infringe” it. Yet, it is just as apparent that neither opinion