In a case representing potential direct conflict with Orange County Sheriff’s Department policy on concealed weapons permits, the United States Supreme Court held on Monday that the Second Amendment's right to "keep and bear arms" applies equally to the 50 states as it does to the federal government. Neither Orange County officials or California’s Attorney General are moving to change a decades old policy which conflicts with this week’s high court ruling.

Relying on its 2008 decision in the Heller case which invalidated a Washington, D.C. ban on handguns in private homes, the Court reaffirmed that Americans have a fundamental right "to possess and carry weapons in case of confrontation, for the core purpose of self-defense, and gave States and cities the burden of accomodating that right. The case, McDonald v. City of Chicago, reverses centuries of Supreme Court precedent, overrules or diminishes every Second Amendment case to have been decided by a State court, and invalidates gun control laws that do not allow for adequate self-defense or are administered arbitrarily.

This ruling, however far-reaching, was not a surprise. Virtually every legal scholar who commented on the landmark Heller case predicted a forthcoming decision which would "incorporate" the 2nd Amendment and apply its rules to the States. Since Heller had to do strictly with a federal law governing Washington D.C., no state was bound by that decision. On Monday, Chicago's ban on handguns was considered, and the frequently shifting legal landscape surrounding gun possession is now dominated by a new paradigm: every citizen has a fundamental right to possess and carry guns for any lawful purpose.

In Orange County the most likely implication of this paradigm will involve permits to carry a concealed weapon. CCW permits are issued by the county Sheriff and are administered in accordance with State law. California requires applicants to take a minimum number of hours of gun safety classes, pass a background and fingerprint check, pay a fee, and then, at the discretion of the county sheriff, they may be issued a permit. It's that "may" that is the problem.

California is a "may-issue" state, one of only 9 left in the country after Iowa adopts its new "shall-issue" law this January. County sheriffs in these states are not bound by anything other than the minimum state requirements when it comes to CCW permits, but rather have discretion to grant permits to those applicants the sheriff deems worthy, using their own standards. Prior cases which have found no conflict between the 2nd Amendment and "may-issue" laws have essentially been rendered moot by Monday's decision. Courts must now consider the fundamental right articulated in these two cases when deciding whether California's law, placing one important aspect of the fundamental right to keep and bear arms at the total discretion of a government official, passes muster.

The Supreme Court mentions in both Heller and McDonald that some gun regulations may turn out to be legitimate, but lists only laws prohibiting felons and the mentally ill from owning guns, laws prohibiting possession in sensitive places like schools, and laws that put conditions on selling guns as those that would presumably pass Constitutional muster. CCW laws are conspicuously absent from the Court's analysis, which indicates their attempt to avoid mentioning a likely issue for future litigation.

Sheriff Sandra Hutchens has exercised her discretionary authority by requiring CCW applicants show some sort of heightened risk or fear that they feel over and above that of the general public. "If you just want to protect yourself, [Sheriff Hutchens] will not issue the CCW based off that reason only," said Melissa Soto, Office Specialist for CCW Permits recently. (See related article below) Other California Sheriffs are even more restrictive than Hutchens, which explains incredibly low numbers of CCW permits granted in the counties of Los Angeles and San Francisco. The McDonald decision may have signaled the end of this policy, one way or another.

"Self-defense is a basic right, recognized by many legal systems from ancient times to the present day . . . individual self-defense is 'the central component' of the Second Amendment right." said the Court on Monday and in Heller. The very principle underlying, validating, and supporting both the Heller and McDonald decisions is cast aside as insufficient by the Sheriff's CCW policy, which puts the policy, and the law it is based on, in serious jeopardy. Officials in both the Sheriff's and the county CEO's office indicated that there were no plans to revise the county's current policy, based on guidelines issued years ago by the Attorney General. "Our first reading on this ruling is that we don't have to change anything," said California Attorney General spokesperson Michelle Quinn. "Some people may challenge what we do and we'll have to deal with that when it happens. But our first reading on it is that we're not changing anything."

After any landmark decision by the Court, States must respond, and the responses are in the spirit of either acquiescence or resistance. Some municipalities will acquiesce to the reasoning of the Court and repeal their over-broad gun prohibitions, adopting reasonable regulations like gun safety education but accepting that their role as a regulator of legal ownership of guns has changed. Others will persist in heavily regulating guns and limiting public access to them, inviting challenges by concerned plaintiffs and their lobbying groups. Particularly because of the important and primary role cities and counties have played in gun regulation for 220 years, there is some expectation that local officials will be reluctant to soften their gun control stance, particularly because of the political implications of such a move appearing "soft on crime."

In response to those municipalities that resist change, there will be hundreds if not thousands of lawsuits that wind their way up the judicial ladder towards the Supreme Court challenging any and all aspects of gun control legislation. The minority of states who still have "may-issue" laws like California will likely be among the first to sit at the Respondent's table. These cases take years and cost millions of taxpayer dollars to defend, as the States almost always must take an untenable legal position based on a set of principles that have changed.

Sheriff Hutchens' office indicates that they plan no changes to their CCW policies, which indicates resistance to the new legal paradigm. Once Heller was decided two years ago, the entire country was on notice that the legal landscape was changing, and that "self-defense" should be seen as a valid reason for gun ownership. Yet, shortly after assuming her post and well after Heller, Sheriff Hutchens contacted more than 400 of the 1100+ CCW permit-holders in Orange County to inform them that they would have to show further justification for their CCW permits. These individuals had not shown enough justification over and above self-defense for their CCW permits, which were granted by her predecessor.

Sheriff Hutchens' policy, though based on State guidelines issued in the 1970's, of requiring CCW applicants to assert some justification other than "self-defense," conflicted with the Heller case two years ago and is further undermined by the McDonald decision on Monday. This policy may have already led to the creation of a potential plaintiff within Orange County who can challenge California's "may-issue" law. Any applicant denied a permit would arguably have standing to challenge the law, while an applicant who receives a permit cannot challenge the law because he has not been denied anything connected with the Second Amendment right.

Though McDonald did not specifically address concealed weapons permits, it has opened the door for any person to sue a "may-issue" State, like California, as arbitrarily infringing on the right to keep and bear arms. Now that there is a federal Constitutional right at stake, no government, state, local or federal, may control that right arbitrarily or capriciously. A law that gives a County Sheriff sole discretion to decide who gets access to a fundamental Constitutional right will probably be found to be arbitrary, just as a law creating a "press minister" who in his discretion must approve all newspaper articles prior to publication would run afoul of the First Amendment.

Sheriff Hutchens is in a position to save the taxpayers of Orange County some real money. By adopting a de facto "shall-issue" policy for CCW permits and issuing permits to anyone who meets the State's requirements, she would allow citizens to pursue their 2nd Amendment right to carry arms for "any lawful purpose," without spending the years of litigation and countless millions of dollars in attorney's fees fighting a losing battle. This approach would force the legal challenges to California's "may-issue" law--challenges that are inevitably coming-- to originate in counties where other Sheriffs do not adopt shall-issue policies, which would leave Orange County's budget, and freedom-loving tradition, undisturbed.