The importance of Peruta – an analysis of the potential impact of the pending concealed carry case in the 9th district

I live in New Jersey. I spend an inordinate amount of time lamenting the state of gun laws here and fantasizing about finding a job where I can move far far away. In the course of my fantasizing and righteous outrage, I wondered: what is the proportion of people in the US that live in states or areas that respect their natural, fundamental, and inalienable human, individual, civil and Constitutionally- protected right to carry a firearm? How many of us are suffering under the draconian and unconstitutional infringement on our right to keep and bear arms? I sought to undertake a simple analysis.

There are discrete areas of our country that any gun-owner should recognize are hostile territory

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I thought it would be a straightforward task to ask: what is the population that lives in these places, compared to the population that does not? I expected the answer to be a sizable fraction, and my hypothesis at the outset was that despite the relatively small number of political subdivisions that restrict our Second Amendment rights, a substantial proportion of the country is being deprived of their rights, thus in clear violation of the Second and Fourteenth Amendments.

While that hypothesis turns out to be mostly correct (although perhaps not by as great a margin as I might have intuited at the outset) a more interesting conclusion became apparent once the analysis was complete: Peruta v. County of San Diego is the single most important case in the history of the jurisprudence of armed self- defense, if for no other reason than the huge number of citizens covered by the ruling.

In the following analysis I will describe how I arrived at this conclusion, as well as provide some additional insight into the state of the right to armed-self defense in the US

Restrictive vs Free States

At the outset of this investigation, I planned to simply take the number of people living in restrictive states (Maryland, New Jersey, Hawaii, Rhode Island, New York State, Massachusetts, and California), add them up and divide by the number of total US population (318.9 million) to arrive at an estimated proportion of people who cannot exercise their right to armed self-defense in the US. This was obviously a terribly simplified calculation fails to account for a variety of different factors such as State-to-State variability in gun laws – including prohibited places and licensing restrictions, accurate counts of the number of persons actually legally allowed to possess firearms in these states, limitations on the type of firearm or other defense weapons, the existence of Stand-Your-Ground laws or other civil protections for individuals involved in self-defense shootings, the rate at which citizens of a given state would actually want to carry a concealed weapon if they were allowed to do so, etc. In fact, to simplify the analysis I disregarded entirely any of the nuances in state laws that permit lawful concealed carry – of which there is a great deal that may significantly impact the day-to-day utility of carrying a concealed weapon. Instead, I grouped the entire population into two camps based on a simple (or so I thought) question: Is there a mechanism that allows private citizens to carry a firearm in public places, and is it reasonably possible to obtain such a permit for the average citizen?

To be truly rigorous in an answer to that question, we’d need hard data on the number of applicants and denials along with reasons for denial in all states that are “may issue”. New Jersey does not make public records for concealed weapons permits, and they are specifically exempted from freedom of information requests, so for at least some States, this depth of analysis is not possible. However, I imagine that few would begrudge me the simple assumption that for New Jersey, the answer to my question is a resounding “no”.

Using information from Wikipedia[1], and Handgunlaw.us[2], I grouped 49 States into two neat columns

Figure 1: A Map of the Concealed Carry Laws in the US[1]

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Table 1. Distribution of States According to Concealed Carry Laws

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There are some reasonable objections to my division methodology. Residents of New York State might say “I live upstate and I can carry – why are we on the list?” – and indeed my initial division treated New York State and New York City differently. However, of the entire population of New York State, nearly half live in New York City. Furthermore, the state remains listed as “restrictive may-issue” on Wikipedia. Plus, the SAFE act. That’s three strikes, guys. For those that say “I live in state X in the Free column, but I’m not allowed to carry in bars, or openly carry my NFA AK-47!” Tough toenails. I live in New Jersey, so my perspective on the issue is a little warped, but for the sake of this analysis, if you can carry a Derringer in a Walmart after taking a 24-hour course with a range test and paying a $300 application fee– you live in a Free State (compared to where I live, you should be grateful). Obviously the term “Free State” in this analysis disregards a lot of issues that I’m sure we could discuss at length, but these issues are outside the scope of this work.

The Problem with California

Some of you may have noticed in the table above, I conveniently left out California. If we refer to the map, we can see that California is the only state that is shaded in a Joker-esque yellow and purple stripe pattern – which seems to accurately reflect both the patchwork quality and general madness of California gun laws. This shading reflects the status of the pending court case Peruta v. County of San Diego – which I think is a case that needs no introduction to the audience who has read this far.

I knew going in that I would not be able to simply exclude a specific population from California as I had tried to do with New York City. I knew that the ability to obtain a concealed carry license in CA depended greatly on the jurisdiction you lived in, with some areas like LA restricting heavily and more rural areas less so. I therefore tried to ask the question: How many Californians live in areas where they can reasonably exercise their right to armed self defense?

The basis for my best-guess estimate comes primarily from a single, very old document: a 1997 report by Marcus Nieto entitled “Concealed Handgun Laws And Public Safety” which seems to have been commissioned by a then- chairperson of the California State Assembly Public Safety Commission, Robert Hertzberg.[3] The age of the document alone certainly calls into question its relevance – it was published prior to the sunset of the Federal “assault weapons” ban. In fact, the relevant information in the report is drawn from an even older report, published in 1994 and using data from 1989 (I was unable to obtain this original report, and so I based my analysis on Nieto’s work). Furthermore, although it is ostensibly a non-partisan investigation that is meant to provide information to a State Assembly for the purpose of gaining a deeper understanding of an important area of law, it has an obvious partisan slant that misrepresents facts about the number of defensive gun uses (quoting the Kleck report) and comes to some erroneous conclusions. Finally, the commission of the report came from a single Assemblyperson representing a single committee- this might have some implications about the proper funding for such an undertaking – an implication that seems to be supported by the fact that the study reports only a single author. The limitations notwithstanding, it is an interesting and brief read – available by direct PDF from the link below.

For all of the flaws in this resource, it appears to be the most useful source of information on the topic of concealed carry in California. For the purposes of answering my question about the population of California who can exercise their right of self-defense the report provides valuable information on the topic. Things may have changed dramatically in California in the last 18 years, but in the area of concealed carry permits, my intuition (and the assumptions I’ve made in this analysis) suggests things won’t have changed that much.

The relevant table from the report, along with some supporting text is reproduced below:

Table 2. California Concealed Handgun Permits, 1989[3]

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California’s may issue permit process was examined in 1994 by researchers interested in knowing how the discretionary authority to issue concealed handgun permits varied by county. They grouped the state’s 58 counties into three categories: the least populated (counties with less than one-tenth of one percent of the state’s population), average (counties with up to one percent of the state’s population), and most populated (over one percent of the state’s population). The second variable was the degree of restriction in concealed handgun licensing criteria. The study then compared these categories to the number per capita of concealed handgun permits issued and the rate of aggravated assault and robbery. These findings generally suggest that persons living in sparsely populated rural counties are much more likely to be granted a concealed handgun permit that those living in moderate to heavily populated counties. The data also implies that persons living in rural counties are less likely to be the victim of robbery or aggravated assault. While no conclusions were drawn from the study about the benefits of concealed handguns, the authors believe their findings are inconsistent with the notion that carrying concealed handguns will lead to more murders or other crimes

While I’m certain that readers might have something to say regarding the conclusion the author draws regarding the correlation between reports of violent crimes and concealed handgun permit issuance, the primary focus of my attention was on the first column of data. Here, we have access to data that we can use to build a model of concealed weapon permit issuance in California. The original report uses a tripartite model, which I have carried forward here. If we take the rate of permit issuance in the rural counties as a proxy for “shall issue” in California, we can derive rates for the more restrictive areas that can act as “restrictive factors”. The major assumption here of course, is that given total freedom, the rate of applicants in rural areas is similar to that of urban areas –an assumption which is almost certainly false. Rural residents are intuitively more likely to have a desire to exercise their rights than those in urban areas – however, I had no access to the hard data on the number of applications by county. Given the low rate of application overall, I think it is a fair assumption and unlikely to be more egregious in error than other conflating factors such as the age of the report.

If we assume that 100% of qualified applicants in rural areas receive their permits, and that the rate of application overall is similar to urban areas, then we can model the rate at which applications that are denied in California that would be approved in shall-issue states. If the rate of issuance per 100,00 persons in rural areas was 1736.5 and the rate in “highly restrictive urban areas” (The language used in the report, not mine) is 28.3, then the rate at which qualified applications are approved is 28.3/1736.5, or about 2%. Highly restrictive indeed. The rate for “moderately restrictive urban counties” calculated similarly is about 25%

Using these approval rates, I pulled the most recently available population of California by county from Wikipedia and estimated the number of Californians who were able to freely exercise their rights, vs those that were not. To calculate which counties were “highly restrictive”, “moderately restrictive”, or “non-restrictive” (again, not my language), I used the same calculation reported by the original study: counties whose population made up >1% of the total California population were “highly-restrictive urban”, those with <0.1% were rural, non-restrictive and the counties in between are “moderately restrictive urban”. I have no idea what criteria were used to correlate the population density of the county with the restrictiveness of the concealed carry permit issuance, however it seems intuitively correct. The by-county breakdown is reported below. It should be noted that I divided the counties based on current population, since that population is central to answering my original query – however it is possible that some of the counties may have jumped from one category to another in the intervening years between this report and now.

Table 3: California population by county, 2015[4]

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Next, I had to account for the admittedly small number of individuals in restrictive California counties that might be considered “free” or “able to obtain licenses if they wanted. That is, the total population of that area, multiplied by the rate of permit acceptance. It may or may not be fair to include these individuals, since the rate of the highly-restrictive urban areas is so low it might indicate that there is some special factor we are not aware of that affects the approval rate. For instance, 2% seems to be about on par with the number of individuals employed by law enforcement or corrections agencies, so perhaps we are only counting them in the rate of approvals, and the rate is therefore not generalizable to the overall population. Still, the numbers are so large that the effect is sizable enough to need to be accounted for, and I have conservatively estimated that those individuals living in restrictive counties who might be approved for a permit if they applied for one are considered “free”. Ignoring the population of “potentially free” citizens from this analysis would create an effect with a similar magnitude to ignoring the population of Hawaii.

Table 4. Population of California by degree of freedom

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For me, the most outstanding conclusion I can draw from this table is the sheer numbers we are talking about. California is so immensely populated, and the population is so concentrated in urban areas it was hard for me to grasp at first. Even as a non-Californian, I am somewhat embarrassed to admit that I was astonished to realize that California is home to >10% of the entire population of the US.

Los Angeles County has a greater population than my entire home state, plus the entire city of Philadelphia combined. The enormous size and corresponding political influence of California cannot be understated, especially with regards to firearms legislation, where California is a monolith among the few outliers that disregard individual liberty. California is therefore uniquely placed to deliver a crushing and perhaps fatal blow to the anti-rights movement, if it were to be legally compelled to recognize those rights among its own citizens.

Results

Figure 2: Proportion of US Persons Able to Exercise Their Right to Armed Self Defense

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Using the analysis outlined above to deal with the special case of California, the total number of people living in areas that prevent armed self-defense is 79.8 million (25%). If we instead consider that California is too contentious and difficult to deal with and therefore exclude it from the analysis entirely, the total number drops to 43.2 million, or about 13.6%. With a total population living in “restricted” areas of California of 36.6 million, the number of restricted Californians represents greater than 45% of the entire nation’s count of such individuals. To put it another way, a 9th district ruling in favor of Peruta would essentially halve the number of individuals in this country who cannot exercise the right to armed self-defense.

Brining California into the fold (or if you like, dragging them kicking and screaming into recognizing the Constitutional rights of its citizens) would reduce the population of forcibly disarmed persons from 25% to a little over 13%, a nearly 12% reduction. By way of comparison, when Illinois was forced to do the same after the McDonald decision, this represented a 4% reduction in the forcibly disarmed nationally.

I have disregarded the population of Washington DC in this analysis, since it seems that ongoing legislation there has muddied the waters around how their laws will be applied, however the entire population of DC represents less than 0.2% of the national population, and thus does not influence the analysis greatly, but it should be clear that there was only a small population that directly benefited from the Heller decision (though indirectly we may all be said to have benefited).

Figure 3. The Potential Impact of the Peruta decision on the Proportion of Americans Who Can Exercise their Constitutional Rights

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Key Conclusions

There is a significant fraction of US citizens who are unable to exercise their Natural, civil, and Constitutionally protected right of armed self-defense. In the United States – the country with arguably the strongest constitutional protection of the individual right to keep and bear arms – nearly 80 million people are prevented from defending themselves using the most effective tool: the personal firearm.

These citizens are concentrated geographically in a few areas of the country; strongholds of a philosophy that is detrimental to public safety and in defiance of reason. California alone accounts for the single greatest fraction of the population whose rights are infringed on a daily basis.

The high population density of urban areas in California, along with the traditionally low rates of approval of CCW permits, presents the largest single obstacle to the exercise of armed self-defense that is ongoing in the US.

The Peruta decision, which may potentially reverse “may issue” standards for those in the 9th district, has the potential to impact more individuals than either the Heller or McDonald landmark cases. The addition of California to the list of right-to-carry (RTC) states would be the largest single boost currently possible, and would reduce the fraction of those who live under unconstitutional restrictions by nearly half.

The Peruta case is currently awaiting an en banc rehearing in the 9th district, but however it is decided it will likely head to the Supreme Court. Supporting the Peruta case should be the top priority among those who support gun rights.

Broadly speaking, those who support the second amendment understand two basic underlying principles: the protection against government tyranny and the provision of armed self-defense against attacks on your life and limb. Whatever the consensus may be about the relative importance of those two principles is, I think we can all agree that the right to armed self-defense is certainly the most likely to be needed by a given individual, statistically speaking.

The urgency of this provision is especially critical to people like me- who are aware of their responsibility to protect and defend themselves and their families and the acute lack of the means with which to do so. For the majority of Americans (75%) this issue is of little concern. For them, if a permit to carry is desired, one can be obtained. But for a sizeable minority there is no recourse to be had, and we are left forcibly defenseless. Consider this a call to action: defend the rights of your fellow citizens who cannot defend themselves. Push for National legislation that will override the huge political majorities at the local level. Save us from ourselves!

When the Peruta case goes to the Supreme Court, write your legislators and urge them to co-sponsor or sign amicus briefs in favor of the plaintiff. Those of you who are NRA members, write to the association and urge them to make this a priority. We have an historic opportunity to close the door on concealed carry restrictions nationwide and cap off a two-decades long momentous swing toward liberty.

Consider that in 1997, when the Nieto report was released, concealed carry was forbidden in Illinois, Kansas, Missouri, Nebraska, New Mexico, Ohio and Wisconsin. Alabama, Delaware, Iowa, Michigan, and Minnesota were all may-issue. Today all 12 of those States are shall-issue. The tide turned long ago. Now is the time to push hard and make sure it doesn’t turn back. A 9th circuit decision in favor of Peruta would all by itself be a killing stroke to the anti-gun movement when it comes to concealed carry. A subsequent favorable Supreme Court case would certainly be the end of the restrictive licensing practices nationwide. The importance of this case, therefore, cannot be understated.

References:

  1. Concealed Carry in the United States. Wikipedia. Accessed at: http://en.wikipedia.org/wiki/Concealed_carry_in_the_United_States
  2. Map of US States by Concealed Carry License Laws. Accessed at: http://www.handgunlaw.us/LicMaps/ccwmap.php
  3. Nieto, M. 1997. “Concealed Handgun Laws And Public Safety”. California Research Bureau California State Library CRB-97-007. 900 N Street, Suite 300 Sacramento, CA 95814. Accessed at: https://www.library.ca.gov/CRB/97/07/97007.pdf
  4. Population of California by county. Wikipedia. Accessed at: http://en.wikipedia.org/wiki/List_of_counties_in_California

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