Breaking news: Ninth Circuit Rules California May Issue Unconstituional


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dc dalton
February 13, 2014, 02:35 PM
Just amazing!

The Ninth Circuit’s decision in Peruta v. San Diego, released minutes ago, affirms the right of law-abiding citizens to carry handguns for lawful protection in public.

California law has a process for applying for a permit to carry a handgun for protection in public, with requirements for safety training, a background check, and so on. These requirements were not challenged. The statute also requires that the applicant have “good cause,” which was interpreted by San Diego County to mean that the applicant is faced with current specific threats. (Not all California counties have this narrow interpretation.) The Ninth Circuit, in a 2-1 opinion written by Judge O’Scannlain, ruled that Peruta was entitled to Summary Judgement, because the “good cause” provision violates the Second Amendment.

The Court ruled that a government may specify what mode of carrying to allow (open or concealed), but a government may not make it impossible for the vast majority of Californians to exercise their Second Amendment right to bear arms.


http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/13/ninth-circuit-strikes-californias-restrictive-rule-against-licensed-carry-of-handguns/

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Midwest
February 13, 2014, 02:41 PM
Will this only apply to California? Or can people from 'needs based essentially may issue' states like NJ, MD and HI can use this as an argument. What are the chances for this to affect New York State since both CA and NYS have may issue/shall issue areas.

This is great news indeed.

Sam1911
February 13, 2014, 02:44 PM
Volokh, writing for the Washington Post says:

The Ninth Circuit thus joins the Seventh Circuit, and disagrees with the Second, Third, and Fourth Circuits. (State courts are also split on the subject.)

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/13/ninth-circuit-holds-second-amendment-secures-a-right-to-carry-a-gun/

dc dalton
February 13, 2014, 02:49 PM
Will this only apply to California? Or can people from 'needs based essentially may issue' states like NJ, MD and HI can use this as an argument. What are the chances for this to affect New York State since both CA and NYS have may issue/shall issue areas.

This is great news indeed.

It could set precedence that other states could then be gone after with BUT you have to be about 99% sure the state is going to appeal this so I have to think this fight is far from over. More than likely it would be pushed up all the way to SCOTUS (if they would accept it)

rbernie
February 13, 2014, 02:55 PM
Will this only apply to California?The ruling addresses CA law, but the Ninth Circuit covers the West Coast and therefore I'm assuming that this has broader implications beyond just this specific case.

http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000135

http://www.ca9.uscourts.gov/images/CircuitMap_01.jpg

9mmepiphany
February 13, 2014, 03:09 PM
Yes, I believe that has far ranging influence. CA is unusual in that a CCW here isn't issued by the State but rather by each separate county...however, it is good anywhere in the state

For those who want further confirmation, here is the article from the San Francisco Chronicle

http://www.sfgate.com/bayarea/article/Court-strikes-California-law-limiting-concealed-5232386.php

For those interested, here is the complete ruling.

WARNING: it is 127 pages long

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/12/1056971.pdf

pendennis
February 13, 2014, 03:14 PM
I was under the impression that Federal Court rulings applied generally within each circuit.

But, since this ruling was by a three-judge panel, might this be further reviewed by the full court, if California requests it?

danez71
February 13, 2014, 03:17 PM
And so many here said that because all of the liberal judges, politicians, and residents, CA was a lost cause and "get what they deserve". ....... :neener:

Between IL, DC, and now CA, anyone who says that any state is a lost cause is a defeatist and was never 100% committed to the fight to begin with.


This has serious POSITIVE National implications and should put more pressure for SCOTUS to take a case and there is a reasonably good chance that the entire Country can become "shall issue" or must allow open carry.


Yes, "CA got what they deserved". Look at my sig on how they did it.

model4006
February 13, 2014, 03:20 PM
awesome!

danez71
February 13, 2014, 03:22 PM
Yes, I believe that has far ranging influence. CA is unusual in that a CCW here isn't issued by the State but rather by each separate county...however, it is good anywhere in the state

For those who want further confirmation, here is the article from the San Francisco Chronicle

http://www.sfgate.com/bayarea/article/Court-strikes-California-law-limiting-concealed-5232386.php

For those interested, here is the complete ruling.

WARNING: it is 127 pages long

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/12/1056971.pdf


From the ruling link.

Pretty strong words IMO.

We are well aware that, in the judgment of many governments, the safest sort of firearm-carrying regime is one which restricts the privilege to law enforcement with only narrow exceptions. Nonetheless, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table. . . . Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court [or ours] to pronounce the Second Amendment extinct.” Id. at 636. Nor may we relegate the bearing of arms to a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated 76 into the Due Process Clause.” McDonald, 130 S. Ct. at 3044.

JellyJar
February 13, 2014, 03:34 PM
Does that mean that since California already has procedures on the book for issuing CCW license that immediately everyone that qualifies and applies for a license must be given one now?

danez71
February 13, 2014, 03:50 PM
Does that mean that since California already has procedures on the book for issuing CCW license that immediately everyone that qualifies and applies for a license must be given one now?


I'm not done reading it....

What I'm gathering, in regular words, is that since CA bans open carry, it must have a reasonable CCP process and would need to be "shall issue".

Currently, CA is a "May Issue" and "must show good cause" of which 'for personal protection' wasn't enough of a reason (in the vast majority of CA). Residents needed to show some added need.

The court said in its ruling (from the link above).

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 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.



Because he was denied, and open carry is banned, he sued.... and WON!

gc70
February 13, 2014, 03:51 PM
Nice! Now to read the opinion.

madsend81
February 13, 2014, 03:59 PM
While it may be 127 pages long, most of it (at least 46 so far, I haven't finished it yet) are historical analysis, similar to what was done in Heller.

Carl N. Brown
February 13, 2014, 04:00 PM
Volokh, writing for the Washington Post ...

Actually, what had some WP leftie readers upset that that the Volokh conspirators (about 20 lawyers including Eugene Volokh and David Kopel) retained fully editorial control over Volokh Conspiracy content.

egyas
February 13, 2014, 04:04 PM
That is just freaking Amazing! I can't believe this came from the 9th circus.

Yo Mama
February 13, 2014, 04:15 PM
Yes!!!!!!!!!!!!!!!!!!!!!!!!!!

This is a huge win.

If someone who has had the chance to review the ruling, I would like to know if they discussed no weapons zones, and the impact this has on an individual when they leave their home with a firearm to carry? This is what Chicago did, just make everywhere a no carry zone.

Jim K
February 13, 2014, 04:21 PM
Interesting. Policy in MD is to issue a general carry permit only because of a specific known threat, by a specific person, and to revoke as soon as the State Police decide the threat is past. And they MAY issue if the applicant has been threatened, can prove he or she was threatened and reported repeated threats to the police at the time they were made. Highly restricted permits MAY be issued to business people who carry large sums of money, or for some other reasons. There have been reports that permits will be issued to those who make very generous contributions to certain political campaigns, but since that does not include me, I cannot prove or disprove such allegations.

I once asked a state police officer (sarcastically) if a notarized statement from someone saying he wanted to kill me would be enough for me to get a carry permit. He replied, quite seriously, that it would not be, because there might not be a real threat.

Jim

madsend81
February 13, 2014, 04:21 PM
Starting on page 64, they start punching holes in the decisions made by the 2nd, 3rd and 4th circuit decisions on carry outside the home.

By evading an in-depth analysis of history and tradition, the Second, Third, and Fourth Circuits missed a crucial piece of the Second Amendment analysis. They failed to comprehend that carrying weapons in public for the lawful purpose of self defense is a central component of the right to bear arms. See Moore, 702F.3d at 941 (criticizing the court in Kachalsky for “suggest[ing]that the Second Amendment should have a much greater scope inside the home than outside” and noting that the“interest in self-protection [and thus in the Second Amendment right]is as great outside as inside the home”). And further, they failed to comprehend that regulations on the right, although permissible to an extent, could not go so far as to enjoin completely a responsible, law-abiding citizen’s right to carry in public for self-defense. Such regulations affecting a destruction of the right to bear arms,just like regulations that affect a destruction of the right to keep arms, cannot be sustained under any standard of scrutiny

morcey2
February 13, 2014, 04:23 PM
I don't have time at the moment to read the opinion, but I wonder if there's something in there that would apply to reciprocity/recognition of non-resident permits. Maybe it's beyond the scope of this ruling, but it can't be possible that the 2A wouldn't apply to non-residents also.

Great news though!

Matt

madsend81
February 13, 2014, 04:27 PM
If someone who has had the chance to review the ruling, I would like to know if they discussed no weapons zones, and the impact this has on an individual when they leave their home with a firearm to carry? This is what Chicago did, just make everywhere a no carry zone.

On page 55 the Justices say
[The 2A right] is, in effect, destroyed when exercise of the right is limited to a few people, in a few places, at a few times.

BTR
February 13, 2014, 04:29 PM
This is HUGE! I did not think the 9th would agree!

joeschmoe
February 13, 2014, 04:38 PM
... another one bites the dust...

:D:D:D:D:D:D

Ryanxia
February 13, 2014, 04:43 PM
Fantastic, just like Chicago, let's start taking our Country back! This and what's happening in Chicago prove we can't give up on ANY state or city but remain ever vigilant.

Mike1234567
February 13, 2014, 04:47 PM
Hmm... we may soon need need to change our pet name for the farthest southwest state from Kommiefornia to Carryfornia.:D

madsend81
February 13, 2014, 04:50 PM
^ I like it, but don't get to far ahead of yourself yet.

Yo Mama
February 13, 2014, 04:57 PM
Thanks madsend81

I love it!!!

Frank Ettin
February 13, 2014, 05:04 PM
Geez! This will teach me not to leave the house.

Exciting news.

I'll need to read everything when I get home.

Librarian
February 13, 2014, 05:08 PM
This is a wonderful step, but we're not settled.

First, San Diego is going to appeal, apparently to an 'en banc' panel of the 9th Circuit. I believe they have made that intention known so today's opinion is 'on hold'.

Then, the loser there is likely, but not certain, to appeal to the Supreme Court.

If today's decision holds, CA residents would still have to apply, with all the procedures that entails; what changes is the requirement for some specific need acceptable to an issuing agency - The San Diego County policy specifies that concern for “one’s personal
safety alone” does not satisfy the “good cause” requirement for issuance of a
permit. Instead, an applicant must demonstrate that he suffers a unique risk of
harm: he must show “a set of circumstances that distinguish [him] from the
mainstream and cause[] him . . . to be placed in harm’s way.” Given this
requirement, the “typical” responsible, law-abiding citizen in San Diego County
cannot bear arms in public for self-defense; a typical citizen fearing for his
“personal safety”—by definition—cannot “distinguish [himself] from the
mainstream.”That goes. 'Personal safety' would become sufficient 'good cause'.

And then there will be the San Francisco and Los Angeles and State of California following suits claiming 'oh, but we are special ...'. One can hope those will be slapped down hard.

danez71
February 13, 2014, 05:14 PM
And then there will be the San Francisco and Los Angeles and State of California following suits claiming 'oh, but we are special ...'. One can hope those will be slapped down hard.


I think they will.

We are well aware that, in the judgment of many governments, the safest sort of firearm-carrying regime is one which restricts the privilege to law enforcement with only narrow exceptions. Nonetheless, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table. . . . Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court [or ours] to pronounce the Second Amendment extinct.” Id. at 636. Nor may we relegate the bearing of arms to a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated 76 into the Due Process Clause.” McDonald, 130 S. Ct. at 3044.



I'll need to read everything when I get home.

Please. I'm interested in getting your take on this.

Elm Creek Smith
February 13, 2014, 05:21 PM
Hawaii's "license to carry" is pretty doggone restrictive too:

"In an exceptional case, when the applicant shows reason to fear injury to his person or property, the respective chief of police may grant a license to carry a concealed firearm on his person within the county where the license is granted to a U.S. citizen or duly accredited official representative of a foreign nation age 21 or older."

Note that the license is only good in the county in which it was "...granted." That means that it's not good on the other islands.

Since Hawaii falls under the 9th Circuit Court of Appeals, it is time for a citizen of the State of Hawaii to apply for a license to carry a handgun for personal protection and sue when it is denied.

ECS

MagnumDweeb
February 13, 2014, 05:32 PM
Yes, this is why we can't forget California. We need more though, we need more wins. Each victory must embolden us, drive us to organize and seek more ground from the enemy. Let this not be our last step, let it be the first in a great journey to getting California back, piece-by-piece.

Ryanxia
February 13, 2014, 05:40 PM
Elmcreek Smith & MagnumDweeb make EXCELLENT points.

They stirred the hornet's nest, it's time they get stung bad.

Trent
February 13, 2014, 06:04 PM
YEEEES!

HAHAH!

HAHAHAHAH!

HAHAHAHAHAHAHAHAH!

Oh man I haven't been this happy to see news since *Illinois* got the right to carry.

But... there is a potential downside here. The Supreme Court is GOING to have to grant cert somewhere now if the En Banc panel affirms the decision... too divided amongst districts.

tomrkba
February 13, 2014, 06:05 PM
Between IL, DC, and now CA, anyone who says that any state is a lost cause is a defeatist and was never 100% committed to the fight to begin with.


This has serious POSITIVE National implications and should put more pressure for SCOTUS to take a case and there is a reasonably good chance that the entire Country can become "shall issue" or must allow open carry.


Yes, "CA got what they deserved". Look at my sig on how they did it.

Get the right to keep and bear arms in your state constitution. This will stop the California legislature from passing bad laws and nullify most of the current laws. You'll still have to hold them to it, but why not add a "bad law prevention" clause. Something to the effect of: any legislator creating or supporting a bill that violates the "California Second Amendment equivalent" is guilty of a felony punishable by not less than 20 years hard time, no parole. You'll still have to hold them to it, but that is much easier to do when you can point to a constitutional violation.

But... there is a potential downside here. The Supreme Court is GOING to have to grant cert somewhere now... too divided amongst districts.

Given the past behavior of SCOTUS, do you believe they will apply original intent to the 2A? Or will they give us more legal shenanigans, such as the "common use standard" horse-pucky?

armoredman
February 13, 2014, 06:06 PM
While incredible, I see this going the way of Nordyke.:( I really hope I'm wrong.
Congrats, Cali, and to all the wonderful people who worked very hard to get us this far! I hope the Leftist Liberal elite of California get stymied in their efforts to overturn this decision, and time will tell.

wildbilll
February 13, 2014, 06:12 PM
Where is the statutory deadline for issuance of a permit once the application is made? Looks to me like it could take an indefinite amount of time to actually get the permit. Also I see the permits are good for 2 years and cost $100 plus the training, extra fees, etc.

pendennis
February 13, 2014, 06:17 PM
Where is the statutory deadline for issuance of a permit once the application is made? Looks to me like it could take an indefinite amount of time to actually get the permit. Also I see the permits are good for 2 years and cost $100 plus the training, extra fees, etc.
Courts have generally been less than patient, no matter the issue, when someone drags their feet after the dust settles.

When a jurisdiction becomes "shall issue", unless someone has a defect in the application, things should move quickly. They also can't make the training time and costs, or raise processing fees so much, that poorer folks can't afford to get permits.

Derek Zeanah
February 13, 2014, 06:20 PM
This is just outstanding. :D

Doc7
February 13, 2014, 06:37 PM
Thank you! Please for the love of all that is great let this go to SCOTUS and bring NJ and other states up to speed.

danez71
February 13, 2014, 06:48 PM
Get the right to keep and bear arms in your state constitution. This will stop the California legislature from passing bad laws and nullify most of the current laws. You'll still have to hold them to it, but why not add a "bad law prevention" clause. Something to the effect of: any legislator creating or supporting a bill that violates the "California Second Amendment equivalent" is guilty of a felony punishable by not less than 20 years hard time, no parole. You'll still have to hold them to it, but that is much easier to do when you can point to a constitutional violation.



Pssst... CA did point to a constitutional violation. The 2A. Remember the 2A.... the 2A that SCOTUS already ruled that it applied to the states?



I agree with the "bad law prevention" idea. I think FL has one.... EVERY state should have one.

usmarine0352_2005
February 13, 2014, 06:48 PM
.

http://www.mercurynews.com/california/ci_25134832/?source=redbar





.
San Diego could seek "en banc" review by a larger, 11-judge panel of the 9th Circuit appeals court. And if that is denied, or if either side chooses to appeal the larger panel's ruling, the case could go to the U.S. Supreme Court..



What's the chance of them bypassing a full review from the 11 judge panel and appeal right to SCOTUS?
.

tomrkba
February 13, 2014, 06:52 PM
Pssst... CA did point to a constitutional violation. The 2A. Remember the 2A.... the 2A that SCOTUS already ruled that it applied to the states?

Hmmm...I do not want to take this off topic into the types of citizenship and the limited citizenship granted by the 14th Amendment.

So, let's just gloss that over. In that case, why are most of the California laws still active? Challenging every one of them will take a few centuries...

ECVMatt
February 13, 2014, 06:57 PM
The irony of all this is that the places where the Democrats have done the most damage and have trumpeted as examples of their "wisdom", now pave the way for victory after victory for 2A rights. We have more to come here in CA and hopefully they will have national implications as well.

danez71
February 13, 2014, 07:07 PM
Hmmm...I do not want to take this off topic into the types of citizenship and the limited citizenship granted by the 14th Amendment.

So, let's just gloss that over. In that case, why are most of the California laws still active? Challenging every one of them will take a few centuries...



Maybe I dont understand your question because the my answer is "For several obvious reasons."


CA hasn't had this type of case or ruling before. Neither did DC or IL.

Laws can get passed faster than can be challenged and run thru the court system. That's true nationally.

Laws get passed and then get challenged for constitutionality. That how our system works in the US.

That's how the system works nationally for every state whether or not something is in the States Constitution or in the US Constitution.

The District courts and SCOTUS don't hear a lot of cases per year so things take time.

CA wasn't so anti in the past. Its taken decades to get to this point. IL didn't turn around over night. DC didn't get turned around over night.

.

barnbwt
February 13, 2014, 07:43 PM
I think these panel judges saw an opportunity and took it. They knew a ruling heavily borrowing from recent SCOTUS rulings would be very unlikely to be heard by SCOTUS. I think they also knew that the state would be disinclined to bring the case before en banc because it could then only be strongly rejected by biased judges and flawed logic, by definition in contradiction with the logic of recent SCOTUS rulings cited therein.

I'm sure they don't want to allow shall-issue, but I'm certain they don't want to flatly contradict the contents of the most recent high court rulings in their entirety. I'm not entirely sure of what exact consequences result from low-court judges bucking their superiors, but I assume they don't get promoted or invited to fancy dinner parties any more (and their ruling gets overturned, anyway :D)

SCOTUS has made it plain they don't want to rule on carry issues, or even gun issues in general at the moment (quite possibly because they've moved pretty quickly to redefine the conventional wisdom of the issue over the last decade or two by SCOTUS standards). It seems likely they've also made it plain that the lower courts had better not overplay their hand and force the Supreme Court to make a ruling.

Still, we have five of the district courts in conflict (so far), and an ever increasing number of RKBA vectors making a B-line for DC.* I really do think there is a watershed over the horizon, but just how fast it can materialize within our intentionally-braked system remains to be seen. 30 or so years from nearly no CC access to mandatory signoff? That's pretty darn fast for such a philosophically polarized issue.

*May/Shall Issue, AWBs, gun free zones, growing insanity of the NFA & BATFE enforcement, open carry, reciprocity, 'reasonable restrictions,' the list is getting to be quite long and we're pushing firmly on all fronts and making actual progress. When you look at it that way, the oppositions' localized advances look pretty weak and defensive, even if they will be difficult to dislodge.

TCB

Bobson
February 13, 2014, 07:43 PM
I'll be holding my excitement until we get to see the real-world effect of the decision - assuming things get better in California. And frankly, I think that's a steep assumption.

All the same, my best wishes go out to those in California.

charlie echo
February 13, 2014, 08:23 PM
Bravo. Now I and my wife are shopping for actually concealable and legal CA CCW pistols: 45 ACP for me, 44 Special+P for her.

Ryanxia
February 13, 2014, 08:32 PM
This can't be overstated enough: FIGHT NOW. Push hard and take our Freedoms back. This is the push that they didn't expect, we have them on their heals, push and do your worst. :)

As Shakespeare said, "Cry Havoc, and let slip the dogs of war!"

gc70
February 13, 2014, 08:45 PM
This decision may also be a reminder about the importance of judicial appointments. O'Scannlain and Callahan were respectively appointed by Reagan and Bush; Thomas was appointed by Clinton.

MikePGS
February 13, 2014, 08:46 PM
Very happy to hear that the good people of California are making progress in their struggle.

Sent from my SAMSUNG-SGH-I997 using Tapatalk 2

Librarian
February 13, 2014, 09:19 PM
One of the interesting bits here is how CA Legislators helped the case.

Back in 1967, the Legislature passed the Mulford Act; banning open carry of loaded guns.

A bunch of clever folks analyzed the Penal Code, and discovered that OPEN carry UNLOADED was not prohibited. We had a number of little demonstrations of that here in CA.

The demonstrations put bees in the bonnets of some legislators, and 2011 they passed AB 144 that banned even unloaded open carry (UOC) starting 2012.

However.

The lower court made much of UOC as an alternative path to self defense; it was still legal when that ruling came out.

Now that UOC is also banned, the only path to exercising the right of carry for self-defense is the permit system.

So the Court says In California, the only way that the typical responsible, law-abiding citizen
can carry a weapon in public for the lawful purpose of self-defense is with a
concealed-carry permit. And, in San Diego County, that option has been taken off
the table. The San Diego County policy specifies that concern for “one’s personal
safety alone” does not satisfy the “good cause” requirement for issuance of a
permit. Instead, an applicant must demonstrate that he suffers a unique risk of
harm: he must show “a set of circumstances that distinguish [him] from the
mainstream and cause[] him . . . to be placed in harm’s way.” Given this
requirement, the “typical” responsible, law-abiding citizen in San Diego County
cannot bear arms in public for self-defense; a typical citizen fearing for his
“personal safety”—by definition—cannot “distinguish [himself] from the
mainstream.”
...
In other words, D.C.’s complete ban on handguns in the home
amounted to a destruction of the right precisely because it matched in severity the
kinds of complete carry prohibitions confronted (and struck down) in Nunn and
Andrews. These, in turn, resemble the severe restrictions in effect in San Diego
County, where the open or concealed carriage of a gun, loaded or not, is forbidden.
Heller teaches that a near-total prohibition on keeping arms (Heller) is hardly
better than a near-total prohibition on bearing them (this case), and vice versa.
Both go too far.
There are still hurdles to traverse, but this is a very nice start.

ICE1210
February 13, 2014, 09:40 PM
I don't it is going to make much difference. Pretty soon in California, the only handgun still legal will be cap and ball revolvers. The percussion caps would have to be micro stamped of course.

Queen_of_Thunder
February 13, 2014, 09:52 PM
The Ninth Circuit? The bastion of liberalism.

charlie echo
February 13, 2014, 09:55 PM
This decision may also be a reminder about the importance of judicial appointments. O'Scannlain and Callahan were respectively appointed by Reagan and Bush; Thomas was appointed by Clinton.
Good reminder, thanks

larryh1108
February 13, 2014, 09:59 PM
*May/Shall Issue, AWBs, gun free zones, growing insanity of the NFA & BATFE enforcement, open carry, reciprocity, 'reasonable restrictions,' the list is getting to be quite long and we're pushing firmly on all fronts and making actual progress.

Does it seem possible that the Supreme Court, realizing all of the potential legislation coming their way due to their recent rulings, can just decide to look at the entire right-to-carry system as a whole and make a ruling based on their previous decisions? They've already stated that states can impose certain limits to types of arms but basic rights like mentioned above could be ruled on in one, fell swoop and save millions of dollars in litigation and thousands of hours of court time because 50 states could ask the same question, with variations, on a hundred different issues. Things like right-to-carry, all states honoring a permit to carry, shall issue, etc., are all things that can be put to rest with one decision.

Is it feasible?

danez71
February 13, 2014, 10:18 PM
I don't it is going to make much difference. Pretty soon in California, the only handgun still legal will be cap and ball revolvers. The percussion caps would have to be micro stamped of course.

Part of... what I like about the ruling is the logic that went behind it.

If the same line of thinking continues, I can see the microstamping law being overturned and the Roster in big jeopardy too.

martymcfly
February 13, 2014, 10:22 PM
I find it disappointing how little news play this is getting. Seems like a big deal to me and boy howdy, did all the gun control stuff get play all over the place. But it's been darn hard to find much coverage on various CA news sites or the national news sites.

another pake
February 13, 2014, 10:55 PM
Yahoo picked up the Associated Press story a few hours ago.

http://news.yahoo.com/court-tosses-california-39-concealed-weapons-rules-200215313.html

Reading the comments at the end of the piece, most are favorable to our cause. I noticed the same when reading local accounts of the Connecticut "resistance" story today.

I'm encouraged.

JRH6856
February 13, 2014, 10:55 PM
Does it seem possible that the Supreme Court, realizing all of the potential legislation coming their way due to their recent rulings, can just decide to look at the entire right-to-carry system as a whole and make a ruling based on their previous decisions? They've already stated that states can impose certain limits to types of arms but basic rights like mentioned above could be ruled on in one, fell swoop and save millions of dollars in litigation and thousands of hours of court time because 50 states could ask the same question, with variations, on a hundred different issues. Things like right-to-carry, all states honoring a permit to carry, shall issue, etc., are all things that can be put to rest with one decision.

Is it feasible?
The Courts generally try to avoid making law. They rule on the issues brought before them and if they find the law involved to be flawed, their only real option is to declare it unconstitutional and thus invite the legislative branch to try to get it right.

What the Courts do not do is look ahead and rule on cases before they reach them.

Frank Ettin
February 13, 2014, 11:09 PM
Does it seem possible that the Supreme Court, realizing all of the potential legislation coming their way due to their recent rulings, can just decide to look at the entire right-to-carry system as a whole and make a ruling based on their previous decisions? ....

Is it feasible? The short answer is "no." A court decides a case, i. e., the dispute in front of it.

The principles and interpretations of law used by a court to decide the case in front of it will, under the doctrine of stare decisis, be applied by other courts for which the deciding court makes binding precedent. Stare decisis reflects the principle that similar disputes should be decided in a similar way.

But the sort of thing you describe is really the province of legislatures.

Sebastian the Ibis
February 13, 2014, 11:17 PM
Will this only apply to California? Or can people from 'needs based essentially may issue' states like NJ, MD and HI can use this as an argument. What are the chances for this to affect New York State since both CA and NYS have may issue/shall issue areas.

Midwest,

This case only directly strikes down to San Diego’s “good cause” requirement to obtain carry permit.

However, all United States District Courts in California, Hawaii, Arizona, Nevada, Idaho, Montana, Oregon, Washington (state) and Alaska have to follow the reasoning in this opinion with respect to “need” for a carry permit.

This opinion does little for New Jersey and Maryland since those states are not in the Ninth Circuit, and the Second and Fourth circuits have already ruled the other way. However, this opinion contributes to the Circuit split making it more likely that the Supreme Court will take up the issue.

But, since this ruling was by a three-judge panel, might this be further reviewed by the full court, if California requests it?

Pendennis,

Yes, California will likely request en banc review.

Does that mean that since California already has procedures on the book for issuing CCW license that immediately everyone that qualifies and applies for a license must be given one now?

JellyJar,

No, not right now. This case specifically reversed the District Court’s summary judgment rulings on the constitutionality of the “good cause” requirement in San Diego. This will now go back to the District Court to enter an injunction instructing San Diego to issue permits to people whose good cause is self-defense.

Starting on page 64, they start punching holes in the decisions made by the 2nd, 3rd and 4th circuit decisions on carry outside the home.

Madsen 81,

I loved this part. They are daring another panel to disagree and look foolish.

I wonder if there's something in there that would apply to reciprocity/recognition of non-resident permits.

Morcey2,

Nope, at least not directly. For the most part reciprocity is done by agreements between the states.


What's the chance of them bypassing a full review from the 11 judge panel and appeal right to SCOTUS?


USMarine,

Small. California probably has better shot of winning en banc. Also, two chances is better than one.

Is it feasible?

larryh1108,

Nope. The Supreme Court doesn’t like doing “one fell swoop.” They like sitting back and watching how things play out in the lower courts. Even if there were a case which brought up all of those issues, the Court would decide it as narrowly as possible and pass on the rest.

morcey2
February 14, 2014, 01:25 AM
Morcey2,

Nope, at least not directly. For the most part reciprocity is done by agreements between the states.



I'm just hoping. There are some really great rivers in Northern Cal that I'd love to fish for steelhead and sea-run cutts. I've gotten so used to carrying that I can't stand being unarmed, especially in the outdoors.

Matt

Midwest
February 14, 2014, 02:21 AM
Back in 1967, the Legislature passed the Mulford Act; banning open carry of loaded guns.


If anyone is interested, here is the account on what happened that led to the banning of open carrying in California.

http://www.theatlantic.com/magazine/archive/2011/09/the-secret-history-of-guns/308608/1/

toivo
February 14, 2014, 05:48 AM
CA is unusual in that a CCW here isn't issued by the State but rather by each separate county...however, it is good anywhere in the state

Same in NY. There is a great deal of difference from county to county. Some are virtually "shall issue," while others are "probably won't issue."

Field Tester
February 14, 2014, 05:57 AM
While I am incredibly happy that there's a win in our corner, and I somewhat understand what the ruling means, how will it change things for me?

Obviously this affects me greatly considering where I live. I've long wished for the opportunity to CCW, but was always told it was a pipe dream. It looks like that dream may come true.

So what do I do now? When does this go into effect? Is there a chance it can be overturned? If I obtain my CCW and it's overturned am I grandfathered?

But the most important to me right now is am I now able to obtain my CCW? If so, what do I have to do to obtain it?

God I will frame Bill Gore's signature if he has to sign it. I will smile every day as I walk out the door as I'm carrying. I will kiss it the day I vote his pompous a** out of office.

BigBore44
February 14, 2014, 06:21 AM
Haven't been to California since I was a small child. When I was old enough to understand what a "leftist" and "liberal" was, and how they ruled there, I had no desire to ever return. Still, I am ecstatic for the 2A's win in the 9th. This is not over. But like in boxing, this hopefully will be the left jab that sets up the right cross. And then "Down goes Frazier! Down goes Frazier!".

NavyLCDR
February 14, 2014, 06:29 AM
There have been past discussions where the open carry groups in California were vilified for their "activism" which was blamed for California banning open carry. There has also been, in the past, some which claimed "Don't exercise that right, because if you do exercise that right, the government will ban it" and "just because you can do something doesn't mean the you should."

This is a perfect example of forcing government to play it's hand, instead of folding when the government threatens to go "all in". If unloaded open carry without a license had not been banned in California, then the first question the court would have had to answer was whether that unloaded open carry was sufficient for self-defense purposes. I suspect they likely would have ruled that unloaded open carry was a sufficient means of carrying a firearm for self-protection and we would have seen a different decision.

As I commented in those previous threads - it is better that the government pass a law than outright bans an activity because the law can be fought in court. Caving in under the fear of threatened government action does nothing because the voluntary surrendering of the right cannot be fought in court.

HexHead
February 14, 2014, 07:48 AM
Yes, California will likely request en banc review.

If it goes to the full 9th circuit court for review, I expect the decision would be reversed.

barnbwt
February 14, 2014, 08:33 AM
I personally wish the opinion had been shorter (maybe Circuit rulings can't be) because the more verbiage there is, the more likely some future jurist can find a flaw to exploit. Hopefully the panel was thorough enough that there are no conflicts in the logic.

TCB

DeadMoneyDrew
February 14, 2014, 08:46 AM
If it goes to the full 9th circuit court for review, I expect the decision would be reversed.

San Diego plans to ask for a full review according to that SFGate article that was posted earlier.

gc70
February 14, 2014, 08:47 AM
I personally wish the opinion had been shorter (maybe Circuit rulings can't be) because the more verbiage there is, the more likely some future jurist can find a flaw to exploit. Hopefully the panel was thorough enough that there are no conflicts in the logic.

Circuit court rulings don't have to be as long as this one, but I suspect that this one was purposely loaded up with citations to help insulate it from rebuttal in an en banc review and to provide more weight to the conclusions if the case goes to the Supreme Court.

Sebastian the Ibis
February 14, 2014, 08:50 AM
So what do I do now?

Go to pacer.gov (the U.S. Federal Court's docketing system), and sign up with your credit card. Then you can pull the docket for this case in the District Court (it costs ten cents a page). Pull the injunction when it is issued and apply for a concealed weapons permit making sure you comply with whatever requirements are included in the injunction.

When does this go into effect?

The opinion tells the lower court what to do - issue an injunction. So you will likely need to wait until the injunction is issued, San Diego backs down or some combination of both.

Is there a chance it can be overturned?

Yes.

If I obtain my CCW and it's overturned am I grandfathered?

It is way to early to say.

MedWheeler
February 14, 2014, 08:57 AM
NavyLCDR writes:

..it is better that the government pass a law than outright bans an activity because the law can be fought in court. Caving in under the fear of threatened government action does nothing because the voluntary surrendering of the right cannot be fought in court.

I agree. Apparently, so do up to 300,000 people in Connecticut, regarding the required registration of their so-called assault rifles.

ChaoSS
February 14, 2014, 09:34 AM
I have been wondering which was more likely, Feinstein and Pelosi cosponsoring a bill to repeal the NFA and GCA, or the 9th circuit standing up for the 2nd amendment.


Pelosi, we are waiting.....

danez71
February 14, 2014, 11:22 AM
If it goes to the full 9th circuit court for review, I expect the decision would be reversed.

I don't think so.

gc70 explains why.

Circuit court rulings don't have to be as long as this one, but I suspect that this one was purposely loaded up with citations to help insulate it from rebuttal in an en banc review and to provide more weight to the conclusions if the case goes to the Supreme Court.

Praxidike
February 14, 2014, 11:23 AM
Volokh, writing for the Washington Post says:
"The Ninth Circuit thus joins the Seventh Circuit, and disagrees with the Second, Third, and Fourth Circuits. (State courts are also split on the subject.)"
What rationale and logic was used by previous courts in CA and NY for May Issue being constitutional? In what way exactly does the Seventh and Ninth Circuit courts rationale/logic conflict with the several other rulings that disagreed?

danez71
February 14, 2014, 11:36 AM
If unloaded open carry without a license had not been banned in California, then the first question the court would have had to answer was whether that unloaded open carry was sufficient for self-defense purposes. I suspect they likely would have ruled that unloaded open carry was a sufficient means of carrying a firearm for self-protection and we would have seen a different decision.



I don't think so. The ruling touches on that; operable gun and that SCOTUS ruled that forcing people to keep their legal gun unloaded, locked up and/or disassemble guns is too significant of and infringement I think in the DC case and that in others precedent cases it was alluded to as well.

krs
February 14, 2014, 12:06 PM
Wouldn't a reversal of the no open carry law(s) nullify the effect of this decision and it's ultimate resolution?

If open carry were allowed there's no case for concealed carry since the issue here was the restriction on a personal need to defend, and Californians will be walking around in business attire with their six shooter strapped alongside their legs ala' "Justified".

madsend81
February 14, 2014, 12:11 PM
If it goes to the full 9th circuit court for review, I expect the decision would be reversed.

Many people also all thought that the full 7th would review and overturn the carry case from IL and they denied the petition. Anything can happen.

madsend81
February 14, 2014, 12:14 PM
What rationale and logic was used by previous courts in CA and NY for May Issue being constitutional? In what way exactly does the Seventh and Ninth Circuit courts rationale/logic conflict with the several other rulings that disagreed?
They used the line in Heller that "Long standing prohibitions ... are presumptively constitutional", just like San Diego tried to do here in Peruta. CA9, in their ruling, discussed why that line of reasoning fails.

Praxidike
February 14, 2014, 12:18 PM
Okay then why would that change if they were to take up this case?

Mainsail
February 14, 2014, 12:25 PM
During several of the numerous open carry debates we (the open carry proponents) were told that open carry was detrimental to all carry rights, and by doing so we would only get open carry outlawed. That could only happen in one state where open carry was legal; California.

The reason that wouldn't work in Washington is that our State Constitution recognizes the right to bear arms. Thus, outlawing open carry would require the state to drop the concealed carry licensing scheme- something the state is unlikely to do.

California attempted to go that route- outlawing open carry while simultaneously creating a de facto ban on concealed carry. That’s what the court locked onto. Since open carry is completely outlawed and concealed carry regulated, it seems they went the path of least resistance and determined the severe restrictions on concealed carry (which is in effect a ban) is unconstitutional.

The best part is that they used the US Constitution’s second amendment to do so, as California has no constitutional recognition of the right.

Trent
February 14, 2014, 12:32 PM
Does anyone have a link to the full court decision for this?

madsend81
February 14, 2014, 12:45 PM
Okay then why would that change if they were to take up this case?
The CA9 said that laws prohibiting or regulating concealed carry by itself are not unconstitutional in and of themselves, but if there is no other avenue for an individual to carry a gun to protect him/herself in public, then those prohibitions are not constitutional. In California, open carry is banned and a permit is required to carry concealed. Because the permit requirements are so restrictive, the average citizen has no legal way to carry a firearm for self protection. Ergo, the law is unconstitutional. The CA9 used many of the same court cases in their decision as were used in Heller. By mimicking the logic followed by the SCOTUS, they have solidified their argument and made it more likely that their decision will stand upon appeal.

morcey2
February 14, 2014, 12:45 PM
Does anyone have a link to the full court decision for this?
It's in post #6 of this thread.

Mike1234567
February 14, 2014, 01:17 PM
Wouldn't a reversal of the no open carry law(s) nullify the effect of this decision and it's ultimate resolution?

If open carry were allowed there's no case for concealed carry since the issue here was the restriction on a personal need to defend, and Californians will be walking around in business attire with their six shooter strapped alongside their legs ala' "Justified".

That would be like w-a-a-a-y kewl... fer sher, fer sher.;) I wonder what t-o-o-o-tally rad hi fashion like, "don't mess with me er I'll like pull on ya' dude", accessories those totally rad California dudette surfers will wear over their 'kinis.

I'm like t-o-o-o-tally pumped, dudes. This could like R-E-A-L-LY change the cover of Sports Illustrated Swimsuit Edition. Oh yeah, like fer sher!!:D

danez71
February 14, 2014, 01:35 PM
Wouldn't a reversal of the no open carry law(s) nullify the effect of this decision and it's ultimate resolution?

If open carry were allowed there's no case for concealed carry since the issue here was the restriction on a personal need to defend, and Californians will be walking around in business attire with their six shooter strapped alongside their legs ala' "Justified".

I tend to agree with that assessment.

But CA is highly unlikely to allow OC.

Not only did CA ban the OC of a loaded gun, when Pro 2A residents started OCing, but with it un-loaded, CA went as far as to ban that too.


The reason they banned UOC (unloaded open carry) was because the police started getting tons of calls for "there is a person with a gun".


Also, generally speaking, a lot of people are the "out of sight out of mind" type.

If they cant see the gun, its hard for them to be so afraid of it.

And at this point, since there are CCP in CA and they are issued by LE, it would be very difficult for LE to suddenly claim that CC is too much of a risk for the officers

For those reasons, I don't think CA will allow OC.

larryh1108
February 14, 2014, 01:55 PM
I think CA boxed itself into a corner.
With IL passing CC last year with a SC decision, I feel that any may issue law should be challenged if OC is not an option. This ruling may give legal precedence if it is upheld.

ilbob
February 14, 2014, 03:12 PM
When a jurisdiction becomes "shall issue", unless someone has a defect in the application, things should move quickly. They also can't make the training time and costs, or raise processing fees so much, that poorer folks can't afford to get permits.

hmm.

what about IL? pretty offensive fees.

Trent
February 14, 2014, 03:33 PM
It's in post #6 of this thread.

Gracias. Totally missed it. :)

Praxidike
February 14, 2014, 03:55 PM
The CA9 said that laws prohibiting or regulating concealed carry by itself are not unconstitutional in and of themselves, but if there is no other avenue for an individual to carry a gun to protect him/herself in public, then those prohibitions are not constitutional. In California, open carry is banned and a permit is required to carry concealed. Because the permit requirements are so restrictive, the average citizen has no legal way to carry a firearm for self protection. Ergo, the law is unconstitutional. The CA9 used many of the same court cases in their decision as were used in Heller. By mimicking the logic followed by the SCOTUS, they have solidified their argument and made it more likely that their decision will stand upon appeal.
It won only by a 2 to 1 vote correct, and many other courts have sided with NY and CA. I just think people celebrating prematurely. Even if they lose this battle, which I'm not totally convinced that they will yet, they'll simply will find another way to make it harder for people to legally own firearms.

Gaiudo
February 14, 2014, 04:01 PM
they'll simply will find another way to make it harder for people to legally own firearms.

And we'll find a way to hit them back. It's a war, not a battle. This is a nice victory along the way.

larryh1108
February 14, 2014, 04:11 PM
IL gets CC, CA may get shall issue. Is that a cold front heading to Hades?

JRH6856
February 14, 2014, 04:30 PM
IL gets CC, CA may get shall issue. Is that a cold front heading to Hades?

Satan won't notice a thing until both happen in NYC and NJ. :evil:

larryh1108
February 14, 2014, 04:35 PM
Man, I'd loving nothing more than to see the faces of Cuomo and Bloombust if NYC aver gets shall issue. Right now the entire state has may issue, with a "good reason". Does NYS have OC? Could a CA ruling filter down to NY if/when it gets to the SC?

madsend81
February 14, 2014, 05:00 PM
It won only by a 2 to 1 vote correct, and many other courts have sided with NY and CA. I just think people celebrating prematurely. Even if they lose this battle, which I'm not totally convinced that they will yet, they'll simply will find another way to make it harder for people to legally own firearms.
It certainly has caused a split in the circuit courts. In the ruling, the CA9 addressed why they though the other courts were in error in their judgements. Because the logic in Heller was so closely followed, and SCOTUS was so heavily quoted in the decision, I think some serious cognitive dissonance will have to occur on the part of the judges in an en banc hearing to go against what the SCOTUS has said.

The decisions of the other courts (2,3 and 4) all hinged on "prior long standing regulations being presumptively constitutional." They looked at concealed carry alone and determined it was outside the scope of the 2nd Amendment so they didn't bother to look deeper, or they weighed it against the need of the government to protect public safety and deemed the restrictions constitutional.

The CA9 approach was to first determine if carry for the purpose of self defense by itself was protected by the second amendment. Then it determined that because there was no legal avenue by which ordinary law-abiding residents could carry, and that San Diego County expressly forbade personal defense as good cause, that the requirement was invalid.

The two different logical approaches to similar questions, and the differing outcomes, make it much harder for SCOTUS to ignore a carry case for much longer. No matter which way the 9th en banc decides, this will probably be appealed to SCOUTS and with the extensive research and reasoning of the CA9 in this case, I find it hard for SCOTUS not to hear this one.

Is it premature to start celebrating? That may be up for debate. I for one am happy and spreading the good news where I can because I live in LA county which has similar requirements as San Diego County for CCW. If you go to calguns.net and visit the forums there, there is certainly a lot of celebrating going on.

Trent
February 14, 2014, 05:37 PM
Man, I just finished reading the first 78 pages of that document. I haven't read the dissenting section yet, but WOW.

That ruling is even more strongly worded than the 7th circuit decision in Moore vs. Madigan, in Illinois.

Talk about a great precedent!

They obliterate the may-issue decisions of the 2nd, 3rd, and 4th circuits.

Moore didn't go that far.


Because the Second, Third, and Fourth Circuits eschewed history and
tradition in their analysis of the constitutionality of these regulations, despite the
Supreme Court’s admonition that “the public understanding of a legal text in the
period after its enactment or ratification” is a “critical tool of constitutional
interpretation,” we find their approaches unpersuasive.


And...


Our second disagreement with our sister circuits’ application of intermediate
scrutiny relates to the high degree of deference they afforded the state legislatures’
assessments of the fit between the challenged regulations and the asserted
government interest they served.


Followed by a few pages of supporting cases; and ..

The bombshell..


In light of the states’ failure to demonstrate sufficient narrow tailoring
in Drake, Woollard, and Kachalsky, the gun regulations at issue in those
cases should have been struck down even under intermediate scrutiny.


(emphasis added)

The 9th went right out on the limb and said May Issue in the 2nd, 3rd, and 4th circuits should have been struck down.

danez71
February 14, 2014, 05:42 PM
<snip snip snip>

It certainly has caused a split in the circuit courts. In the ruling, the CA9 addressed why they though the other courts were in error in their judgements. Because the logic in Heller was so closely followed, and SCOTUS was so heavily quoted in the decision, I think some serious cognitive dissonance will have to occur on the part of the judges in an en banc hearing to go against what the SCOTUS has said.

The decisions of the other courts (2,3 and 4) all hinged on "prior long standing regulations being presumptively constitutional." They looked at concealed carry alone and determined it was outside the scope of the 2nd Amendment so they didn't bother to look deeper, or they weighed it against the need of the government to protect public safety and deemed the restrictions constitutional.


The two different logical approaches to similar questions, and the differing outcomes, make it much harder for SCOTUS to ignore a carry case for much longer. No matter which way the 9th en banc decides, this will probably be appealed to SCOUTS and with the extensive research and reasoning of the CA9 in this case, I find it hard for SCOTUS not to hear this one.



I agree. The way in which the ruling was written was really smart as to make the ruling as solid as possible.

ETA: Trents post ABOVE this one has some of the info I'm referring to. The CA9 just backhanded the other Circuits upside the head and said "Hey Circuits 2, 3 , & 4, cant you read and understand what SCOTUS was saying!?!!! Let us help you by repeating and explaining what SCOTUS said.".


I'm going to guess that it only has a 50/50 shot for en banc review. If CA en banc does grant it for review, I think there is only another 50% or less chance that they will over rule it because.....

IF CA9 an banc does over rule it, it would be as if they are challenging SCOTUS because SCOTUS was so heavily cited in the CA9 ruling.

I'm not sure but I think if CA9 en banc over rules it and its appealed to SCOTUS, I think SCOTUS can just review it and determine which ruling is correct (as opposed to re-trying the whole case).

Either way, if it gets to SCOTUS, the initial CA9 ruling will almost certainly be upheld otherwise, with the way the initial ruling was written, SCOTUS will be contradicting themselves and that has never happened with the same SCOTUS members still sitting on the bench.




On a side note, there are a couple of naysayer posters in this thread that have been known to bash the other states with comments like "they can stew in their own juices" and "they get what they deserve". I think they just like bashing others to make themselves feel better.


.

Red Wind
February 14, 2014, 06:21 PM
Circuit court rulings don't have to be as long as this one, but I suspect that this one was purposely loaded up with citations to help insulate it from rebuttal in an en banc review and to provide more weight to the conclusions if the case goes to the Supreme Court.

Even with all the backup citations, with a full 9th Circuit, I peg the odds at 50-50 at best.
Not to be pessimistic, but it is the 9th, the most liberal.

And this ruling only affects California and Hawaii,none of the other 9th Circuit states, I've been told.

The ruling affects only California and Hawaii among 9th Circuit states because the others have rules that favor the granting of permits to carry guns in public, according to Eugene Volokh, a professor of constitutional law at UCLA.

ChaoSS
February 14, 2014, 06:27 PM
Even with all the backup citations, with a full 9th Circuit, I peg the odds at 50-50 at best.
Not to be pessimistic, but it is the 9th, the most liberal.

And this ruling only affects California and Hawaii,none of the other 9th Circuit states, I've been told.
It may only affect two states, but it applies to the full circuit. The other states are just already in compliance, as I understand that quote.

Red Wind
February 14, 2014, 06:30 PM
^ That seems to be the case,thankfully! ;) To repeat Volokh:

The ruling affects only California and Hawaii among 9th Circuit states because the others have rules that favor the granting of permits to carry guns in public, according to Eugene Volokh, a professor of constitutional law at UCLA.

danez71
February 14, 2014, 06:34 PM
I particularly like this part... admittedly because, in part, it back hands the 2, 3, & 4 Circuits:

The Second Amendment secures the right not only to “keep” arms but also
to “bear” them—the verb whose original meaning is key in this case. Saving us
the trouble of pulling the eighteenth-century dictionaries ourselves, the Court
already has supplied the word’s plain meaning: “At the time of the founding, as
now, to ‘bear’ meant to ‘carry.’” Heller, 554 U.S. at 584.3 Yet, not “carry” in the
ordinary sense of “convey[ing] or transport[ing]” an object, as one might carry
groceries to the check-out counter or garments to the laundromat, but “carry for a
particular purpose—confrontation.” Id. The “natural meaning of ‘bear arms,’”
according to the Heller majority, was best articulated by Justice Ginsburg in her
dissenting opinion in Muscarello v. United States, 524 U.S. 125 (1998): to “‘wear,
bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose
. . . of being armed and ready for offensive or defensive action in a case of conflict
with another person.’”



Immediately follow up with:


Speakers of the English language will all agree: “bearing a weapon inside
the home” does not exhaust this definition of “carry.” For one thing, the very risk
occasioning such carriage, “confrontation,” is “not limited to the home.” Moore v.
Madigan, 702 F.3d 933, 936 (7th Cir. 2012). One needn’t point to statistics to
recognize that the prospect of conflict—at least, the sort of conflict for which one
would wish to be “armed and ready”—is just as menacing (and likely more so)
beyond the front porch as it is in the living room. For that reason, “[t]o speak of
‘bearing’ arms within one’s home would at all times have been an awkward
usage.” Id. To be sure, the idea of carrying a gun “in the clothing or in a pocket,
for the purpose . . . of being armed and ready,” does not exactly conjure up images
of father stuffing a six-shooter in his pajama’s pocket before heading downstairs to
start the morning’s coffee, or mother concealing a handgun in her coat before
stepping outside to retrieve the mail. Instead, it brings to mind scenes such as a
woman toting a small handgun in her purse as she walks through a dangerous
neighborhood, or a night-shift worker carrying a handgun in his coat as he travels
to and from his job site.


Other good stuff:
Other passages in Heller and McDonald suggest that the Court shares
Sumner’s view of the scope of the right. The Second Amendment, Heller tells us,
secures “the right to ‘protect[] [oneself] against both public and private violence,’
thus extending the right in some form to wherever a person could become exposed
to public or private violence.” United States v. Masciandaro, 638 F.3d 458, 467


The Court reinforced this view by clarifying that the need
for the right is “most acute” in the home, Heller, 554 U.S. at 628, thus implying
that the right exists outside the home, though the need is not always as “acute.”
See also McDonald, 130 S. Ct. at 3044 (2010) (“[T]he Second Amendment
protects a personal right to keep and bear arms for lawful purposes, most notably
for self-defense within the home.”). In a similar vein, Heller identifies “laws
forbidding the carrying of firearms in sensitive places such as school and
government buildings” as presumptively lawful. 554 U.S. at 626. Were the right
restricted to the home, the constitutional invincibility of such restrictions would go
without saying. Finally, both Heller and McDonald identify the “core component”
of the right as self-defense, which necessarily “take[s] place wherever [a] person
happens to be,” whether in a back alley or on the back deck



There is so much Heller and McDonald in the ruling that its clear the 9th is sending a message.

Maybe the 9th isn't so liberal after all and is really more Libertarian than anyone thought. CA used to be more Conservative Libertarian.

Red Wind
February 14, 2014, 06:39 PM
Maybe the 9th isn't so liberal after all and is really more Libertarian than anyone thought. CA used to be more Conservative Libertarian.

We can pray that your analysis is correct! :D As a former Californian (San Francisco), I like it.

Praxidike
February 14, 2014, 06:54 PM
I particularly like this part... admittedly because, in part, it back hands the 2, 3, & 4 Circuits:





Immediately follow up with:





Other good stuff:







There is so much Heller and McDonald in the ruling that its clear the 9th is sending a message.

Maybe the 9th isn't so liberal after all and is really more Libertarian than anyone thought. CA used to be more Conservative Libertarian.
What, if any, reason was given by the 1 judge that voted against it?

joeschmoe
February 14, 2014, 06:57 PM
Isn't this a strange ruling for a 3 person review panel? A 127 page decision and summary judgement? I thought review panels main job is to determine if it should go to the full panel, be dismissed or offer judgements in the most obvious clear cut cases. While we may like it, 127 pages doesn't sound like an obvious clear cut case, which some major fall out. To then allow an appeal to the full panel set's the court up to reverse itself. That could make it look like a kangaroo court.

If they do hear it, could this not force the 9th to have to deal with it's tragic mistake in Silveira v. Lockyer since the SCOTUS has now clearly said there is an individual right to arms in Heller and McDonald? (when they claimed their is no individual right to arms)

Trent
February 14, 2014, 07:22 PM
joeschmoe;

No, a 3 person review panel tossed Illinois Unlawful use of Weapons code right out of the ballpark.

The en banc panel didn't even try to take it on, because the chances were NIL ; the decision was solid.

The en-banc panel refused to take it on, and States Attorney Madigan didn't file cert with the Supreme Court (I've speculated this was due to pressure from New York, etc.)

We may see the same thing happen here in California - if the en banc panel accepts and reverses the smaller panel, OUR side is certain to appeal it to the USSC. THEY may not be so willing to do so, as it could easily spell the end of *all* may issue, country wide.

As it is, "may issue" is on very weak footing - growing weaker with every federal decision we have seen. Won't be long, I suspect.

danez71
February 14, 2014, 07:27 PM
What, if any, reason was given by the 1 judge that voted against it?


Here is the summary of the dissent:

This case involves California’s “presumptively lawful” and longstanding
restrictions on carrying concealed weapons in public and, more specifically, an even narrower question: the constitutionality of San Diego County’s policy of
allowing persons who show good cause to carry concealed firearms in public.


Unfortunately, the majority never answers the question posed. Instead, in a
sweeping decision that unnecessarily decides questions not presented, the majority
not only strikes down San Diego County’s concealed carry policy, but upends the
entire California firearm regulatory scheme.

Therefore, I must respectfully dissent.

But the majority DID answer the question in regards to "good cause". They said that, based on precedents, "self defense" is sufficient good cause.

Additionally,
The majority's counter to the dissent is that the 2A does include "outside the home" and that when the complete picture is evaluated, either OC or CC must be allowed.

The majority stated:

To be clear, we are not holding that the Second Amendment requires the
states to permit concealed carry. But the Second Amendment does require that the
states permit some form of carry for self-defense outside the home.

Praxidike
February 14, 2014, 08:30 PM
Here is the summary of the dissent:



But the majority DID answer the question in regards to "good cause". They said that, based on precedents, "self defense" is sufficient good cause.

Additionally,
The majority's counter to the dissent is that the 2A does include "outside the home" and that when the complete picture is evaluated, either OC or CC must be allowed.

The majority stated:
Thanks... Sounds as if the hold out wanted to vote against it no matter what, and only gave a reason why he didn't agree with the majority, but never gave a reason why San Diego County’s policies were constitutional. I'd like to know what he thought and why about the actual constitutionality of the policy rather than why he disagreed with the rational of the other 2 judges however...

danez71
February 14, 2014, 08:36 PM
Thanks... Sounds as if the hold out wanted to vote against it no matter what, and only gave a reason why he didn't agree with the majority, but never gave a reason why San Diego County’s policies were constitutional. I'd like to know what he thought and why about the actual constitutionality of the policy rather than why he disagreed with the rational of the other 2 judges however...


That's how I take it.

In the none summarized version he says more.

But youre right, he never says why San Diegos position is Constitution and he basically says his reason is "its always been this way" and cites the 2,3, & 4th Circuits decisions.

He really doesn't have any input as to his own thought process.

Frank Ettin
February 14, 2014, 08:48 PM
...Isn't this a strange ruling for a 3 person review panel? A 127 page decision ...127 pages doesn't sound like an obvious clear cut case,...You might want to read the decision. True it's long, but a good portion of the is the dissent.

But in the majority opinion Judge O'Scannlain has made the effort to write a thorough and detailed opinion. He examines in some depth the the historical background, extensively relates his opinion back to the opinions in Heller and McDonald and goes into some detail explaining why those Circuits reaching contrary conclusions were wrong and pointing out their errors.

It appears to me that Judge O'Scannlain was in effect addressing his opinion to the Supreme Court, laying out what he thinks SCOTUS should say if the case gets there.

Somewhere in NM
February 14, 2014, 09:50 PM
Interesting analysis of the ruling

http://www.scotusblog.com/2014/02/sweeping-ruling-on-guns-in-public/#more-205182

Trent
February 15, 2014, 12:25 AM
It appears to me that Judge O'Scannlain was in effect addressing his opinion to the Supreme Court, laying out what he thinks SCOTUS should say if the case gets there.

I concur with your view; he was definitely writing this from the vantage of "this is my opinion, but it must survive an appeal intact." A great deal of thought, careful research, and very selective wording went in to that 70+ page opinion.

Clearly they recognized the importance of what they were undertaking with that opinion, and spent a great deal of time and energy making sure it was "just right."

Willie Sutton
February 15, 2014, 08:18 AM
^^

This 10X

It's very carefully written, and leaves very little room for successful appeal. It's written to be read by SCOTUS as it's primary audience, and is a solid home run. The dissent is weak and virtually pro forma.

One can only hope that with the developing circuit splits that SCOTUS will address the splits and resolve, once in for all, the serious problems in New Jersey & Maryland as the final result. This decision has potential to be the cornerstone of the final argument.


Willie

.

C0untZer0
February 15, 2014, 08:51 AM
The dissenting opinion from Judge Thomas was more rational basis arguments.

I don't see where Thomas deals with the issue logically stemming from Heller. And the other part of the dissent seems to say "all these other judges said otherwise - so they must be right"

His dissent was not a strong logical argument.

larryh1108
February 15, 2014, 09:53 AM
...once in for all, the serious problems in New Jersey & Maryland as the final result.

It seems Maryland got a shall issue ruling per this thread in Legal:

http://www.thehighroad.org/showthread.php?t=669504

gc70
February 15, 2014, 10:20 AM
It seems Maryland got a shall issue ruling per this thread in Legal:

http://www.thehighroad.org/showthread.php?t=669504

The District Court's ruling in Woollard v Gallagher (www.ca4.uscourts.gov/opinions/published/121437.p.pdf) was reversed by the 4th Circuit.

Frank Ettin
February 15, 2014, 10:22 AM
...It seems Maryland got a shall issue ruling per this thread in Legal...That was at the trial court level. It was later tossed by the Fourth Circuit, and that is one of the contrary Circuit Court decisions criticized by O'Scannlian in Peruta.

steve4102
February 15, 2014, 11:30 AM
One can only hope that with the developing circuit splits that SCOTUS will address the splits and resolve, once in for all, the serious problems in New Jersey & Maryland as the final result. This decision has potential to be the cornerstone of the final argument.


Willie

If SD is successful in getting the Full Court to rule on this, and they overturn the 3 judge panel, that would remove the "Split" correct?

Without the "split" what are the chance the SCOTUS will even hear this case?

JRH6856
February 15, 2014, 11:38 AM
If SD is successful in getting the Full Court to rule on this, and they overturn the 3 judge panel, that would remove the "Split" correct?

Without the "split" what are the chance the SCOTUS will even hear this case?

If the en banc court reverses, then Peruta appeals to SCOTUS. The panel opinion is probably too well written for SCOTUS to ignore.

vincyr
February 15, 2014, 01:36 PM
Even with all the backup citations, with a full 9th Circuit, I peg the odds at 50-50 at best.
Not to be pessimistic, but it is the 9th, the most liberal.

And this ruling only affects California and Hawaii,none of the other 9th Circuit states, I've been told.
Actually, it sets a precedent that could affect the whole country, if upheld.

Sam1911
February 15, 2014, 01:40 PM
Actually, it sets a precedent that could affect the whole country, if upheld.Its precedent will only affect the states in the 9th district. If the case goes to the US Supreme Court and their decision concurs, then THAT decision will set precedent that applies to the whole nation.

gc70
February 15, 2014, 02:01 PM
If SD is successful in getting the Full Court to rule on this, and they overturn the 3 judge panel, that would remove the "Split" correct?

No. A split would still exist between the 7CA decision in Moore (http://docs.justia.com/cases/federal/appellate-courts/ca7/12-1269/12-1269-2012-12-11.pdf) and the decisions in the 2CA, 3CA, and 4CA. Unfortunately, the question in Illinois was so different (no carry) from those in the other states (restrictions on carry) that Moore does not provide the stark contrasts that a highly similar case like Peruta provides.

danez71
February 15, 2014, 05:24 PM
Hit this poll.

Its currently lopsided in our favor. Lets keep it that way.

Is a desire for self defense enough reason to be granted a concealed weapon permit?

http://www.utsandiego.com/news/2014/feb/13/ccw-gun-conceal-carry-sheriff-opinion-peruta/

streak
February 15, 2014, 05:44 PM
From the Sdsheriff website:-

LICENSING DIVISION

LICENSING

APPLYING FOR A CONCEALED WEAPONS LICENSE

With regard to the recent 127-page opinion in Peruta v. San Diego, proffered by the 9th Circuit, we are in the process of reviewing and studying the decision, as well as conferring with Legal Counsel.

We will continue with existing procedures and all CCW applications will be handled by appointment only.

Frank Ettin
February 15, 2014, 05:55 PM
^^^
Why would you expect anything different? The fat lady hasn't sing yet. The County can ask for an en banc hearing or petition the Supreme Court to hear it.

Nothing changes until the whole process is worked through.

streak
February 15, 2014, 06:15 PM
I did not say anything about expecting anything different.
For interest I just cut and paste what what was on their website.

This could still take years to settle.

JRH6856
February 15, 2014, 06:41 PM
Hit this poll.

Its currently lopsided in our favor. Lets keep it that way.

Why? Is the 9th Circuit going to rule on the basis of a poll?

ilbob
February 15, 2014, 06:50 PM
And this ruling only affects California and Hawaii,none of the other 9th Circuit states, I've been told.

The rest of the states in this circuit are already shall-issue. It might have some affect on some minor Pacific territories as well.

joeschmoe
February 15, 2014, 08:01 PM
Is a desire for self defense enough reason to be granted a concealed weapon permit?

Is the desire for free speech enough reason to be granted an assembly permit?

Red Wind
February 15, 2014, 09:05 PM
ilbob,please see my posts #100 and #102. You are the 3rd person to partially quote me! I have already twice mentioned (now 3 times), that per Volokh of UCLA, the.rest of the 9th Circuit is already in compliance. :)

Crashbox
February 16, 2014, 01:12 AM
Since I just LOVE to read, I sat down and read the first 78 pages. I'll read the dissent when I feel masochistic.

I must admit that I'm still in a state of semi-unbelief WRT the NINTH handing this down. This opinion is very well-written and very tight IMO. I do hope it is upheld by the SCOTUS; I think it has a good chance of doing so because of its in-depth and correct analysis.

JRH6856
February 16, 2014, 01:48 AM
This 3 judge panel just happened to have two Republican appointees. O'Scannlain was appointed by Reagan and was on the first board of directors of Young Americans for Freedom.

The 9th is a strange beast. It is the largest circuit with 29 active judges. Because of this, it has unique rules for en banc hearings. While other circuits en banc panels consist of all the judges of the court, the 9th only empanels 11 randomly selected judges out of the 29.

This means that an en banc panel may not necessarily include the judges who made the ruling being reviewed. Or it might include only the dissenting judge. Also, the ruling of this limited en banc panel may not actually represent the opinion of the majority of the full court. This opens the door for intracircuit conflicts of law when opinions differ. But en banc review is apparently a rarity and there are rules that allow a full en banc panel in some circumstances.

Interestingly, Judge Thomas (dissenting) is the en banc coordinator for the 9th Circuit, with parliamentarian type duties that can affect the outcome of any case, though he is said to be even-handed in his rulings in that role.

steve4102
February 16, 2014, 06:03 AM
Who were the Attorneys and organizations that were/are responsible for fighting this battle for us?

danez71
February 16, 2014, 10:41 AM
Why? Is the 9th Circuit going to rule on the basis of a poll?

For the same reason that everyone else that posts a poll to hit.

To show the desires of the people.

Possibly it could sway the SD Sheriffs Dept to not request an en banc review. Sheriffs are elected by the people.

San Diego also has a new Mayor and he is a member of the Republican party. Hes not a staunch Republican but he is compare to the last Mayor.



Also, if more people in SD that don't openly support the 2A see how many others are in favor of the ruling, they may feel compelled to also speak out in support.

For some, supporting the 2A is the new black. Lets take advantage of that.


.

Luger_carbine
February 16, 2014, 11:20 AM
Who were the Attorneys and organizations that were/are responsible for fighting this battle for us?

California Rifle and Pistol Association Foundation,

Carl D. Michel and Paul H Neuharth attorneys

JRH6856
February 16, 2014, 06:22 PM
For the same reason that everyone else that posts a poll to hit.

To show the desires of the people.

Possibly it could sway the SD Sheriffs Dept to not request an en banc review. Sheriffs are elected by the people.

San Diego also has a new Mayor and he is a member of the Republican party. Hes not a staunch Republican but he is compare to the last Mayor.



Also, if more people in SD that don't openly support the 2A see how many others are in favor of the ruling, they may feel compelled to also speak out in support.

For some, supporting the 2A is the new black. Lets take advantage of that.


.
Good points, but I had to ask.

ilbob
February 16, 2014, 06:32 PM
is the county funding the other side or is it coming out of the sheriff's dept budget?

9mmepiphany
February 16, 2014, 08:04 PM
By law, it can't come out of the Sheriff's budget, it comes out of the County Budget. His job is to decide policy for enforcement, they decide if it should be defended.

If they suddenly decided not to pursue the appeal in Court the Sheriff would have no say in it.

JRH6856
February 16, 2014, 09:57 PM
If they suddenly decided not to pursue the appeal in Court the Sheriff would have no say in it.

Really? The suit names not only "San Diego County" but "William D. Gore individually and in his capacity as Sheriff". I guessing that means he could pursue it on his on if the County declines to do so. But maybe not. :confused: Though perhaps not with the Sheriff's budget.

9mmepiphany
February 16, 2014, 10:16 PM
If the County declines, he could not as the Sheriff and he'd be a fool to do it as an individual unless he has the resources of a Bloomberg.

Also if he were to pursue it as an individual, he's lose any indemnification for legal fees by the County

JRH6856
February 16, 2014, 11:36 PM
If the County declines, he could not as the Sheriff and he'd be a fool to do it as an individual unless he has the resources of a Bloomberg.

Thanks for confirming my guess. And I concur that continuing without the County would be foolish. OTOH, Bloomberg seems to like throwing money at foolish causes.

Praxidike
February 17, 2014, 06:50 AM
Could this be reversed based on a technicality? The dissenting judge, Sidney R. Thomas, stated that the majority erred because:

the majority never answers the question posed. Instead, in a
sweeping decision that unnecessarily decides questions not presented, the majority
not only strikes down San Diego County’s concealed carry policy, but upends the
entire California firearm regulatory scheme.

The plaintiff's case was about whether San Diego County's "conceal weapons" "show good cause" licencing policy was constitutional or not; however, the Majority answered an even broader question. They didn't answer the question that was specifically before them; they answered and ruled on whether both an open AND conceal carry ban was constitutional. The dissenting judge does have a point there.

Even in the Heller case, the Supreme Court strictly stuck to the question at hand which was whether a firearm ban in the home was constitutional. They did not tackle whether or not that right extended to outside of the home. More specifically, they stated:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.

The dissenting judge reiterates the latter by stating:

This case involves California’s “presumptively lawful” and longstanding restrictions on carrying concealed weapons in public and, more specifically, an even narrower question: the constitutionality of San Diego County’s policy of allowing persons who show good cause to carry concealed firearms in public....

We are not asked in this case to determine the reach of the Second
Amendment outside the home or to evaluate the entirety of California’s handgun
regulatory scheme. Rather, the narrow questions presented in this case are: (1)
Does the scope of the Second Amendment extend to protect the concealed carrying
of handguns in public, and (2) if so, does San Diego County’s policy of allowing
public concealed weapon carry upon a showing of good cause unconstitutionally
infringe on that right?...

The majority’s first—and crucial—mistake is to misidentify the “conduct at
issue.” Chester, 628 F.3d at 680. The majority frames the question as “whether a
responsible, law-abiding citizen has a right under the Second Amendment to carry
a firearm in public for self-defense.” This is certainly an important issue, but it is
not the question we are called upon to answer. The Plaintiffs are not seeking a
general license to carry firearms in public for self-defense—they are seeking a
license to carry concealed firearms in public.


I wounder if the Majority's decision is a "technically" correct answer to the wrong question; therefore, may be a plausible reason for reversal.

stressed
February 17, 2014, 06:56 AM
It's a good day in California. especially to turn LA into shall issue. I expect crime to drop.

gc70
February 17, 2014, 08:28 AM
The plaintiff's case was about whether San Diego County's "conceal weapons" "show good cause" licencing policy was constitutional or not; however, the Majority answered an even broader question. They didn't answer the question that was specifically before them; they answered and ruled on whether both an open AND conceal carry ban was constitutional.

The Peruta decision answered the question, but the question could not be answered in a vacuum as the dissenting judge advocated.

... the state has a right to prescribe a particular manner of carry, provided that it does not “cut[] off the exercise of the right of the citizen altogether to bear arms, or, under the color of prescribing the mode, render[] the right itself useless.”

California bans open carry. No problem.
California prescribes a permit system for concealed carry. No problem.
San Diego effectively makes permits unobtainable through its "good cause" requirement. Big problem because the combination of the three factors prevents the exercise of the right altogether.

The ruling in Peruta only found San Diego's "good cause" permit requirement (which was the precise question posed) to be an infringement.

The district court erred in denying the applicant’s motion for summary judgment on the Second Amendment claim because San Diego County’s “good cause” permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.
REVERSED and REMANDED.

raa-7
February 17, 2014, 08:55 AM
Yep, that's what I'm thinking ! I'm not trying to put a damper on a positive note but you damn sure know that there will be more "Government rules to all this. I hope it all works out for Calif. the people there need a break ! I used to live out there ...

Praxidike
February 17, 2014, 09:30 AM
The Peruta decision answered the question, but the question could not be answered in a vacuum as the dissenting judge advocated.



California bans open carry. No problem.
California prescribes a permit system for concealed carry. No problem.
San Diego effectively makes permits unobtainable through its "good cause" requirement. Big problem because the combination of the three factors prevents the exercise of the right altogether.

The ruling in Peruta only found San Diego's "good cause" permit requirement (which was the precise question posed) to be an infringement.
I'm not a lawyer, and I do not know how big of a deal it is that the majority didn't strictly stick to the question that was before them, but the dissenting judges does bring up some "possibly" valid chinks in the armor that more liberal judges (or even the Supreme Court) might exploit as cause for a reversal. Not that I agree with his dissent, but some could buy into his logic depending on the residing judge. Even though it's a wonderfully written opinion, I do not believe it's as rock solid as some seem to think or as it appears.

Another example that Judge Thomas brought up was the majority basically found the entire state of CA's law unconstitutional, but by law, the state of CA would have to be named in the law suit and be given a chance to defend their law. They were not listed and were not given such chance. Again, I do not know how much of an issue that is.

He also brings up the fact that unlike in the Chicago and DC lawsuit, Judge Thomas points out that San Diego's licencing policy was not a "complete ban." A gun owner’s residence, place of business, and private property are exempt from. Carrying a concealable firearm within a vehicle is not a crime if the firearm is within a vehicle and is either locked in the vehicle's trunk or in a locked container. Peace officers, retired officers, military personnel, and retired federal officers are permitted to carry concealed weapons. Hunters and anglers may carry concealable firearms while hunting or fishing. He also states that conceal weapon law does not apply to transportation of firearms to or from gun shows or similar events, nor does it apply to people practicing shooting targets at established target ranges, whether public or private.. Last, he points out that on top of all of that, CA still issues CCW permits (even though they do it extremely conservatively.)

Add all of the above together, and this case is different than the just about outright bans that were in the other cases that we won. It seem as though they'll have some ammunition for an appeal and we're not out of hot water yet.

Al Norris
February 17, 2014, 09:47 AM
Could this be reversed based on a technicality? ... The plaintiff's case was about whether San Diego County's "conceal weapons" "show good cause" licencing policy was constitutional or not; however, the Majority answered an even broader question. They didn't answer the question that was specifically before them; they answered and ruled on whether both an open AND conceal carry ban was constitutional. The dissenting judge does have a point there.

That technicality does not exist in the majority opinion.

The question about about the "good cause" policy of San Diego's Sheriff has a direct relationship about whether the right extends beyond the home. That becomes the first question to be answered.

If the right does not extend to the public sphere, then the analysis stops right there and the central question does not even need to be determined.

That is exactly what the CA2, CA3 and CA4 did not do. There was no determination if the right to self defense existed beyond the home. Fact is, those circuits never even defined the core of the right. They assumed that the specific facts of Heller applied to a different question (as have the majority of the courts). Regardless, without that determination, any and all CC laws are rational and therefore constitutional.

Here, the court made that determination. Once it was determined that the right to self defense was the core right, and hence existed beyond the door stop, then the court turned to whether or not the CC "good cause" policy was in accord with the right. As long as self defense was a good cause, then the policy is constitutional. If not, the policy infringes the right to extinction, since OC is against the law.

Judge O'Scannlain followed exactly how the Heller majority laid out as the reasons for finding what they did in the D.C. case.

In the D.C. case, the Supreme Court could not answer the question, until they answered whether or not the right was an individual right. They found that it was a personal right and then answered the question.

This is exactly what O'Scannlain did.

Praxidike
February 17, 2014, 10:09 AM
That technicality does not exist in the majority opinion.

The question about about the "good cause" policy of San Diego's Sheriff has a direct relationship about whether the right extends beyond the home. That becomes the first question to be answered.

If the right does not extend to the public sphere, then the analysis stops right there and the central question does not even need to be determined.

That is exactly what the CA2, CA3 and CA4 did not do. There was no determination if the right to self defense existed beyond the home. Fact is, those circuits never even defined the core of the right. They assumed that the specific facts of Heller applied to a different question (as have the majority of the courts). Regardless, without that determination, any and all CC laws are rational and therefore constitutional.

Here, the court made that determination. Once it was determined that the right to self defense was the core right, and hence existed beyond the door stop, then the court turned to whether or not the CC "good cause" policy was in accord with the right. As long as self defense was a good cause, then the policy is constitutional. If not, the policy infringes the right to extinction, since OC is against the law.

Judge O'Scannlain followed exactly how the Heller majority laid out as the reasons for finding what they did in the D.C. case.

In the D.C. case, the Supreme Court could not answer the question, until they answered whether or not the right was an individual right. They found that it was a personal right and then answered the question.

This is exactly what O'Scannlain did.
If you read Judge Thomas' descent, he directly rebutted Judge O'Scannlain interpretation and application of Heller to this case, and the question that was before the court and the question that the plaintiff explicitly asked for relief from in his original complaint was whether the concealed carry policy was constitutional and not if carry outside the home was. Courts tend to be extremely technical, and if that turns out to be the question that the Judges "had" to answer, then the answer would be that CA's CCW policy is constitutional. Another possible problem that I already mentioned is that Judge Thomas states that this ruling found the state of CA's entire law unconstitutional, and to be able to to that, according to him, the state of CA would have had to been one of the defendants and been given a chance to defend their law. Unlike in the other cases in Chicago and DC, the de facto ban in CA wasn't the question that was before the court.

I'm not saying that their ruling won't hold up, but I'm saying that it's not as clear cut as we might think.

danez71
February 17, 2014, 11:05 AM
Could this be reversed based on a technicality? The dissenting judge, Sidney R. Thomas, stated that the majority erred because:

The plaintiff's case was about whether San Diego County's "conceal weapons" "show good cause" licencing policy was constitutional or not; however, the Majority answered an even broader question. They didn't answer the question that was specifically before them; they answered and ruled on whether both an open AND conceal carry ban was constitutional.

The dissenting judge does have a point there.





No he doesn't.

It was answered and it was also addressed several times with the reasoning explained in great detail with several citations of other cases including Heller.

From the ruling:

The district court erred in denying the applicant’s motion for summary
judgment on the Second Amendment claim because San Diego County’s
“good cause” permitting requirement impermissibly infringes on the Second
Amendment right to bear arms in lawful self-defense.

REVERSED and REMANDED.



How much more clear can it be answer?




.

Luger_carbine
February 17, 2014, 11:49 AM
Thomas makes a lot of claims, he doesn't do a good job of supporting the claims logically or otherwise.

Thomas says:

When we examine the justification provided for the policy, coupled with Heller’s direction, our conclusion must be that the County’s policy is constitutional.

There is not a whole lot there except to say "I'm right because I'm right" He makes an oblique mention of some Heller verbiage which says "nothing in our opinion should be taken to cast doubt on longstanding prohibitions,” which it labeled as “presumptively lawful" and Thomas tries to parlay that into meaning that SCOTUS meant to say that except for firearms in one's own home SCOTUS never meant for Heller to overturn gun control laws outside of the home - and they as much as said so. The other half of his argument is a return to rational basis for evaluating the case.

I think the dissent is weak, and it is weak for a reason, Thomas cherry picks phrases out of Helller while avoiding the meat of the issue, which is the question - does the Second Amendment identify self defense as a core right and being armed to defend one's self as a core right. If RTKBA is a core right then you have to treat it as a core right and Thomas' failure to deal with that is why his dissent is so weak.

Not coincidentally it is also the same reason that the majority opinion in Woollard is so weak - Davis and King were intellectually dishonest because they don't like guns and don't want an armed society. They ruled against Woollard first and then thought up a way to spin it afterwards.

JRH6856
February 17, 2014, 12:09 PM
I suspect SD Cnty will be under a lot of pressure from the rest of the state to not appeal or ask for en banc review, so as to limit the effect of the ruling to SD Cnty while the rest of the state pretends to be unaffected by it. It will take more challenges in other other parts of the state to force the legislature to address the issue.

Meantime, it might delay the issue reaching SCOTUS. (Peruta first sued in 2009 and it took till 2014 to get an appellate ruling). Delay until the mind of the court chages through new appointments is the only way to "forum shop" SCOTUS.

wildbilll
February 17, 2014, 12:35 PM
The appeal of this ruling beyond the en banc review is a like a hand grenade, it has the pin in it, all the county needs to do is pull the pin, wait and see what else they blow up.
The dissent in the ruling thinks the ruling extends beyond what was at issue, I say that all the opinion does is carefully explain how they arrived at their decision.
Bottom line, The guy wanted a permit. The couldn't get one because the may issue system doesn't allow for fair treatment. It allows for abuse. If the Sheriff had been more liberal with the issuances, the county might have won.
It is a defacto ban, if the state hadn't plugged up the open carry law, things might be different.

Trent
February 17, 2014, 01:05 PM
I suspect SD Cnty will be under a lot of pressure from the rest of the state to not appeal or ask for en banc review, so as to limit the effect of the ruling to SD Cnty while the rest of the state pretends to be unaffected by it. It will take more challenges in other other parts of the state to force the legislature to address the issue.


Lacking an en banc hearing this ruling will affect the entirety of the 9th circuit territory, not just SD county. This isn't limited in scope. This affects the entire district; period.

The only chance California has of stopping that is to try to get a different ruling on en banc, or ask for cert at the supreme court.

Either way, one side or the other will probably ask for cert at the Supreme Court level once the en banc hearing is done (or not done).

JRH6856
February 17, 2014, 01:25 PM
Lacking an en banc hearing this ruling will affect the entirety of the 9th circuit territory, not just SD county. This isn't limited in scope. This affects the entire district; period.

Sure it does. But only when the district courts enforce it and that only happens when they get a case before them. Which is why I said the rest of the state will pretend to not be affected and force another case to challenge it state-wide. Same is true in Hawaii. It is in the 9th Circuit, but until someone in HA sues the state and cites Peruta, nothing will change just because of this ruling.

The ruling in Peruta did not say Cali law was unconstitutional, it said only that SD Cnty's strict Good Cause requirement was unconstitutional.

SC Shooter
February 17, 2014, 02:30 PM
I don't know how many states are "May Issue" versus "shall Issue", but hopefully you will start seeing the dominos beging to fall. If this can happen in california, it can happen in other restrictive and arbitrary states.

JRH6856
February 17, 2014, 02:42 PM
9 states are "may-issue" states: California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island.

DC is considered "no-issue" (for carry outside the home), though Hawaii, Maryland, and New Jersey are considered effectively "no-issue" as are parts of New York and California, still.

4 states are unrestricted: Alaska, Arizona, Arkansas, and Vermont.

The rest are shall-issue.

16in50calNavalRifle
February 17, 2014, 03:06 PM
praxidike, not dealing with the issue before it is hardly a novelty for any modern American court. A fairly recent ruling at the highest levels quite blatantly rewrote a law to make it "constitutional" - there are no limits to what courts can do, absent legislative reaction/remedy (and even that can be neutered - see military tribunals and the ludicrous moving goalposts culminating in Hamdan - if Congress just gives up on something, the courts literally do run the country with respect to that issue).

But as noted above, the panel majority's ruling of neccessity dealt with the entire context within which the complaint occurred. And it dealt with application of the law, I believe, not the law itself (i.e., "reasonable restrictions" were not disallowed in principle, but unreasonable/bad faith restrictions were disallowed, in practice - in the context that the CC permitting was the only remaining option for citizens to use their 2A rights, given the open-carry ban).

Not that any of this matters, neccessarily. Recall that one of the most important and least ambiguous rights enshrined in the constitution was only declared to mean what it obviously means by a one-vote majority on the SCOTUS. And that "presumptively lawful" only started with restrictions on firearms - not the two-century+ period of very few such restrictions.

And don't forget the complete lack of good faith or lawful mindset among the "authorities" in question. Some say civil lawsuit remedies may compel "law enforcement" agencies to, ya know, follow the law. OK. Fortunately I have no interest in CC so I won't need to hold my breath on that one.

madsend81
February 17, 2014, 03:29 PM
Another possible problem that I already mentioned is that Judge Thomas states that this ruling found the state of CA's entire law unconstitutional, and to be able to to that, according to him, the state of CA would have had to been one of the defendants and been given a chance to defend their law. Unlike in the other cases in Chicago and DC, the de facto ban in CA wasn't the question that was before the court.


Contrary to what the minority stated, the majority did not strike down California's CCW permit system. What the majority did say was that a commonly held interpretation of the "good cause requirement" which did not include self defense was not constitutional.

Because CA does not define what "good cause" means in the PC, county sheriffs and other issuing agencies have been given broad latitude in how it is interpreted. Judge O'Scannlain has said that in light of the state's current firearm laws and existing regulations on carrying in public, any application of the good cause requirement that does not allow for self defense in not constitutional.

No state laws have been declared unconstitutional, only an interpretation of state law. Therefore the state has no standing to object to the ruling.

ChaoSS
February 17, 2014, 06:31 PM
Contrary to what the minority stated, the majority did not strike down California's CCW permit system. What the majority did say was that a commonly held interpretation of the "good cause requirement" which did not include self defense was not constitutional.

Because CA does not define what "good cause" means in the PC, county sheriffs and other issuing agencies have been given broad latitude in how it is interpreted. Judge O'Scannlain has said that in light of the state's current firearm laws and existing regulations on carrying in public, any application of the good cause requirement that does not allow for self defense in not constitutional.

No state laws have been declared unconstitutional, only an interpretation of state law. Therefore the state has no standing to object to the ruling.
They didn't strictly declare the law unconstitutional, but they laid groundwork, that, unless overturned, can not be interpreted any other way. When they say that an ordinary individual must be able to carry outside the home, that means that any interpretation of good moral character that doesn't allow joe average access to a gun is unconstitutional. It also means that if a sheriff says that you meet the standards, but that the law says they "may" issue, and therefore, they won't, that that is also unconstitutional. They didn't say it outright, of course, but you can not reasonably interpret those findings in any other conceivable way.

gripper
February 17, 2014, 06:45 PM
NH is" conditional may issue".... and the southern tier CLEOs are getting" creative"- in a bad way.

JRH6856
February 17, 2014, 07:06 PM
They didn't say it outright, of course, but you can not reasonably interpret those findings in any other conceivable way.

Maybe you can't, and maybe most of us can't, but you can bet that anyone who wants to interpret it differently will do so until forced to do otherwise.

larryh1108
February 17, 2014, 07:10 PM
9 states are "may-issue" states: California, Connecticut,...

I don't believe CT is may issue. The process does require the local PD to sign off but that is the process. I did not have to give a "reason" for my application. Actually, the pistol permit is a permit to carry and does not specify or ban whether OC or CC.

madsend81
February 17, 2014, 07:12 PM
My comment was more to refute the argument that the state of CA should have been a defendant in the lawsuit. No CA laws were directly challenged, so the state has no standing in this.

The other CA requirements, such as "good moral character" and pass a background check, are still in place. "Good cause" is actually still in place, but the CA9 has dictated how that is to be interpreted.

JRH6856
February 17, 2014, 08:21 PM
^^^^Exactly. Nothing is really "overturned" except the San Diego County Sheriff's policy, and at best, CA moves from local "Restrictive" May-issue or no issue, to statewide "Permissive" May-issue. Further challenges may force a change to statewide Shall issue.

Frank Ettin
February 17, 2014, 08:29 PM
They didn't strictly declare the law unconstitutional, but they laid groundwork, that, unless overturned, can not be interpreted any other way....Yes, this Ninth Circuit panel did lay important groundwork. But no, by no stretch of the imagination must the decision be interpreted as anything like finding the law unconstitutional.

The specific challenge was to the "good cause" requirement for a concealed carry permit. The specific ruling was that in order to pass constitutional muster that requirement must be interpreted to include a personal desire to be able to defend oneself as good cause. To reach that conclusion, the court had to find that the right to bear arms protected by the Second Amendment necessarily includes the right to carry a gun for personal defense outside the home.

The ruling that the right to bear arms includes the right to carry a gun outside the home is the groundwork. But there are a great many further issues to get from this point to some finding that the entirety of California's concealed handgun law is unconstitutional. It's settle law that constitutionally protected rights are subject to limited regulation. Here this panel of the Ninth Circuit has concluded that the "good cause" requirement, if applied so as to exclude a personal desire for self defense, goes beyond permissible limits. But each further requirement of the law will also need to be considered under established principles of constitutional law.

In the law details count a good deal. I've noticed that folks without legal training often make get conceptual leaps -- jumping from one ruling to a distant extension of that ruling without fully considering the vast territory between the two points. It is almost never possible to jump that gap. It almost always must be crossed on foot, step-by-step.

JRH6856
February 17, 2014, 09:45 PM
A bit more on where we may be going on this from the Detroit Free Press/USAToday (http://www.freep.com/usatoday/article/5467059)

barnbwt
February 17, 2014, 10:32 PM
It sounds like they are trying for one of those occasional rulings in which a set of criteria decides legality, rather than individual attributes. IIRC, some of the rulings on indecency laws/free speech and civil rights/segregation in the past worked in this manner. To be honest, there is more than one way to skin a cat (the "cat" being the bearing of arms in this case) so it makes perfect sense for states to have some leeway in deciding how the custom will be done within their borders, so long as the core unalienable right is not infringed upon. But you need a test to check whether the right is infringed upon at the end of the day. SCOTUS has been hesitant to propose such a thing up to now (seems they are just now getting around to learning/defining what the right is, rather than focusing on protecting it ;) )

That's the gist I got from the ruling, and seeing how numerous CCW cases are culminating, it's a bit naiive-to-dishonest for jurists to argue each case exists in a vacuum (that's how we've previously justified the current arrangement of two adjacent doors labeled "Do Not Enter" and "Use Other Door").

Similar type of ruling seems inevitable for weapons bans, too, since Miller and Heller seem to have somewhat conflicting language with what laws actually enforce (we civvies are justified in bearing militia-grade weapons commonly in use, but not full/high capacity magazines or military-pattern guns in some places? :confused:)

steve4102
February 18, 2014, 09:01 AM
Is there a "deadline" when SD must decide to appeal or not?

madsend81
February 18, 2014, 09:20 AM
I believe that they have 10 days from the issuance of the ruling to file a request for an En Banc hearing. Anyone is welcome to correct me if I am wrong.

There is a good discussion about this at Calguns.net: http://www.calguns.net/calgunforum/showthread.php?t=893582

Al Norris
February 18, 2014, 10:02 AM
SD County has 14 days from the entry of Judgment (opinion). FRAP 40.a.1

steelerdude99
February 20, 2014, 05:10 PM
Orange Co. Sheriff changes concealed carry permitting to de facto “shall issue” in wake of Peruta. ( February 20, 2014 )

http://bearingarms.com/orange-co-sheriff-changes-concealedcarry-permitting-to-de-facto-shall-issue-in-wake-of-peruta/

danez71
February 20, 2014, 05:21 PM
Pretty much the same article but from a local news paper The Orange County Register.

http://www.ocregister.com/articles/sheriff-602509-concealed-county.html

Its not too surprising IMO that Orange County was the 1st to adjust their policy as it was one of the last conservative coastal counties.

From the article.

“Bottom line is the sheriff is going to abide by the law,” said Lt. Jeff Hallock, a spokesman for O.C. Sheriff Sandra Hutchens.

“Before the court’s decision, good cause was something that was evaluated by the sheriff. What she considers good cause may not be same as Los Angeles, Riverside or San Diego as good cause. But in looking at the decision, some of the subjectiveness is taken out of it.”


And...


San Diego County, which was the defendant in the case, hasn’t filed an appeal of the 9th Circuit 2-1 decision, though the deadline is Feb. 27.


I'm wondering if this is a hint that San Diego County wont be appealing....?

Gaiudo
February 20, 2014, 05:22 PM
Whoa. That was fast. No appeal?

danez71
February 20, 2014, 05:40 PM
The appeal deadline is Feb 27th.

But I'm wondering if there is a hint of no appeal since OC Sheriff Dept is already complying.

gc70
February 20, 2014, 05:49 PM
Whatever Orange County does is irrelevant; Orange County was not a party to the case.

Gaiudo
February 20, 2014, 05:50 PM
Irrelevant to the appeal, good point. Irrelevant totally? Far from it. Great to see movement in policy as a result of the ruling.

danez71
February 20, 2014, 06:04 PM
Whatever Orange County does is irrelevant; Orange County was not a party to the case.

:confused::scrutiny:



Irrelevant to the appeal, good point. Irrelevant totally? Far from it. Great to see movement in policy as a result of the ruling.

Yea... Gaiudo understands.

To say ' irrelevant totally' would be like saying the whole rest of the 9th Circuit is irrelevant because they weren't party to the case; that would be dismissing the authority of the 9th Circuit.

The 9th Circuit ruled on the case... not the "San Diego Circuit". :rolleyes:

gc70
February 20, 2014, 06:24 PM
But I'm wondering if there is a hint of no appeal since OC Sheriff Dept is already complying.

Whatever Orange County does is irrelevant to whether Peruta is appealed because Orange County was not a party to the case.

Better?

danez71
February 20, 2014, 07:49 PM
Whatever Orange County does is irrelevant to whether Peruta is appealed because Orange County was not a party to the case.

Better?

Sure.I guess.

I wasn't trying to nitpick.... I guess I didn't/don't understand because I didn't suggest that they did.

I was wondering if by Orange County changing their rules, if that might hint that San Diego may not appeal.

IOW, why change if San Diego is going to appeal? If they wanted to change their policy regardless of Peruta, they could have done so a long time ago.

madsend81
February 20, 2014, 08:09 PM
OC County and the Sheriff are being sued in another suit for similar reasons. I believe the case is called McCay vs Hutchins. It was stayed pending the outcome of Peruta and a couple of other carry cases working their way through the district courts covering CA. It's possible OC is hedging its bets in case an appeal is not called by SD. But notice that in the news release that if Peruta is stayed, OC will go back to its original policy.

Librarian
February 21, 2014, 07:12 PM
San Diego Sheriff says SD will not appeal Peruta.

A judge on the 9th Circuit could still call for review.

Red Wind
February 21, 2014, 08:23 PM
A judge on the 9th Circuit could still call for review.

What are the betting odds on that occurring? :scrutiny:

Mousegun
February 21, 2014, 08:29 PM
Just imagine the swingin' swerlin' turmoil that will take place when N.J. gets "shall issue" carry. There will have to be a lot of educational suits going on for the first year or so if things are true to form.

madsend81
February 21, 2014, 09:00 PM
Here is the press release from SD Sheriff office for those interested:
http://www.calgunlaws.com/wp-content/uploads/2012/07/Press-Release-on-Peruta.pdf

Trent
February 21, 2014, 09:05 PM
Hell yeah!

And, congratulations!

JRH6856
February 21, 2014, 10:09 PM
San Diego Sheriff says SD will not appeal Peruta.

A victory of sorts. At least a battle won. As long as the ruling stands unchallenged it increases the split at the circuit level and places pressure on SCOTUS to take up the issue sooner rather than later.

danez71
February 21, 2014, 10:44 PM
Sounds like CA is afraid now.

Afraid they'll lose the revenue stream of permit fees, renewal fees, listing weapons for CCP etc etc etc

IOW.... Afraid they'll lose more control.

The decision by Sheriff Gore not to appeal is likely to stand because anti-gun jurisdictions don’t want the Supreme Court to weigh in on carry rights and stop all “may issue” state laws.



http://www.washingtontimes.com/news/2014/feb/21/san-diego-wont-appeal-9th-circuit-on-concealed-car/



I thought that since Orange County was changing their policy that it might be a hint of no appeal to en banc.

Gaiudo
February 22, 2014, 04:52 AM
Via David Kopen of Volokh Conspiracy:

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/21/san-diego-sheriff-will-not-seek-9th-circuit-en-banc-in-peruta-right-to-carry-case/
Assuming that there is no certiorari petition in Peruta, and no sua sponte en banc, things will continue as usual in the California counties that were already issuing carry permits in compliance with the principles that the Second Amendment includes the right to bear arms. Other counties–such as Los Angeles, Orange, and San Francisco–will have to follow San Diego’s lead and begin issuing permits to ordinary, law-abiding citizens who pass the requisite background checks and safety training requirements.

He goes on to address Guam and Hawaii as potentially involved as well.

steve4102
February 22, 2014, 07:53 AM
San Diego Sheriff says SD will not appeal Peruta.

A judge on the 9th Circuit could still call for review.

How about the CA AG, can she call for a full court review?

http://m.apnews.com/ap/db_6407/contentdetail.htm?contentguid=ajKrcy0B&src=cat&detailindex=11

http://www.latimes.com/local/lanow/la-me-ln-san-diego-sheriff-concealed-guns-20140221,0,2138479.story#axzz2u1SO0xq7

ChaoSS
February 22, 2014, 08:42 AM
How about the CA AG, can she call for a full court review?

http://m.apnews.com/ap/db_6407/contentdetail.htm?contentguid=ajKrcy0B&src=cat&detailindex=11

http://www.latimes.com/local/lanow/la-me-ln-san-diego-sheriff-concealed-guns-20140221,0,2138479.story#axzz2u1SO0xq7
She can ask the court to step in for a full hearing, but the state has no standing in this. The state was not sued. The lawsuit addressed only the policy of not accepting "self defense" as good cause.

So, really, this doesn't force any county other than SD to do anything, but it does mean that other counties should comply, and if they don't, they can be sued, and the lower courts are supposed to go with the appeals court decision.

Could be interesting if any other counties decide to force people to sue them so they can try to get a different decision from another panel on the 9th, but I don't see that happening.

Carl N. Brown
February 22, 2014, 08:54 AM
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/21/san-diego-sheriff-will-not-seek-9th-circuit-en-banc-in-peruta-right-to-carry-case/

Davis Kopel, "San Diego Sheriff will not seek 9th Circuit en banc in Peruta right to carry case", Volokh Conspiracy blog, Washington Post, 21 Feb 2014.

San Diego County Sheriff’s Office press release announcing SDCSO won't seek en banc review (by all 9th circuit judges) of Peruta decision by a three judge panel (2-1) holding may-issue unconstitutional.

.... As I detailed in a post last week, Peruta requires that the exercise of the Second Amendment right to carry a licensed firearm for lawful self-defense be considered “good cause” under the California statute providing for the issuance of concealed carry permits.

The press release is scrupulously silent about the possibility of filing a petition for a writ of certiorari. The deadline for filing such a petition is 90 days from the entry of judgment, which was February 14 in the Peruta case. Supreme Court Rule 13.1 ....

IIRC "writ of certiorari" means appeal to the US Supreme Court.

As long as Peruta is upheld, 0% of the US population lives in a State where there is "may issue" or "no issue" on carry permits. In 1986, 91% of the US population lived in States where "may issue" or "no issue" applied to right-to-carry. (Some cities are still no issue or defacto no issue under restrictive may issue laws.)

danez71
February 22, 2014, 09:02 AM
She can ask the court to step in for a full hearing, but the state has no standing in this. The state was not sued. The lawsuit addressed only the policy of not accepting "self defense" as good cause.

So, really, this doesn't force any county other than SD to do anything, but it does mean that other counties should comply, and if they don't, they can be sued, and the lower courts are supposed to go with the appeals court decision.

Could be interesting if any other counties decide to force people to sue them so they can try to get a different decision from another panel on the 9th, but I don't see that happening.

I don't see that happening either. If it does, LA and SF are the 2 most likely with SF having a slight lead IMO as they are the most 'progressive'.


CA doesn't want to keep losing in court. It undermines their 'image'.

JRH6856
February 22, 2014, 09:36 AM
CA doesn't want to keep losing in court. It undermines their 'image'.

Yes, its hard to be seen a progressive when going backwards. ;)

gc70
February 22, 2014, 10:27 AM
We should not discount the strategic importance of any decision that would push Peruta closer to the Supreme Court. The other "may issue" states probably do not want California to do anything that would put the supportive rulings from their Circuit Courts at risk. If the Supreme Court does not take up Drake, and Peruta is unchallenged, most of the "may issue" states' laws are safe for the foreseeable future.

Librarian
February 22, 2014, 07:38 PM
As long as Peruta is upheld, 0% of the US population lives in a State where there is "may issue" or "no issue" on carry permits. With regard to California, I don't think that is true - yet.

There are further requirements beyond 'good cause', particularly 'good moral character'; there is also a case pending to address that.

If we get GMC = "pass a background check" added to GC = "lawful self defense", we should formally have 'shall issue'.

Then we get to address things like 'only able to handle 4 applications per day' as San Diego is currently asserting.

9mmepiphany
February 22, 2014, 09:00 PM
Then we get to address things like 'only able to handle 4 applications per day' as San Diego is currently asserting.
That has been our biggest holdup since Sacramento Co got defacto "Shall Issue" a couple of years ago.

They originally had 1 officer handling it and he got quickly overwhelmed. Then they added another officer and a dedicated clerk, I think they were adding another officer to keep up. Last year they filled all the appointments available by the summer and folks were stalking the calender for cancellations

cwo2lt
February 23, 2014, 12:35 AM
There is a 6 month waiting list to apply at the Sherriff's Dept. in Lincoln County OR. Another 3 or so to get it.

Scimmia
February 23, 2014, 03:07 AM
As long as Peruta is upheld, 0% of the US population lives in a State where there is "may issue" or "no issue" on carry permits. In 1986, 91% of the US population lived in States where "may issue" or "no issue" applied to right-to-carry. (Some cities are still no issue or defacto no issue under restrictive may issue laws.)
So New York, New Jersey, and Maryland don't count? Since this isn't going to the Supreme Court, the ruling only applies to the states in the 9th circuit. Takes care of Cali and Hawaii, but there are plenty of other problem spots out there.

danez71
February 23, 2014, 11:58 AM
With regard to California, I don't think that is true - yet.

There are further requirements beyond 'good cause', particularly 'good moral character'; there is also a case pending to address that.

If we get GMC = "pass a background check" added to GC = "lawful self defense", we should formally have 'shall issue'.

Then we get to address things like 'only able to handle 4 applications per day' as San Diego is currently asserting.



Yes, in regards to 'good moral character', some Counties are wanting to interview neighbors and possibly notify employers, get non-family character references and even do a psych eval.


Librarian, (9mmepiphany or anyone else) What case(s) are you referring to in regards to 'good moral character".

madsend81
February 24, 2014, 09:38 AM
Richards V Prieto is the big one that deals with GMC. It was heard at the same time as Peruta.

galapoola
February 25, 2014, 01:15 PM
In NJ we have a "good moral character" clause in the statute for ownership and carry of firearms. As far as I know, the gatekeeper for this has been the reference check. If an applicant's references find no reason for the town to deny a permit (carry, purchase, own), then you are of good moral character. If NJ looses the "justifiable need" requirement for permits to carry, I can imagine the tyrants in Trenton (state capital) could adjust the administrative code to include some unobtainable standard for "good moral character" to keep the status quo. They are famous for moving the goal posts to get their way.

wildbilll
February 25, 2014, 01:38 PM
Good moral character is a legal term that has a historical meaning that isn't easily redefined. Anyone who is not of good moral character already knows who they are.
Airline Transport Pilots are required by Federal Aviation Regulation 61.153 (c) to be of good moral character, I know some who you wouldn't want to associate with and they do have criminal records.

madsend81
February 25, 2014, 02:11 PM
With the wording in the Peruta ruling, municipalities cannot use regulations to create a de facto ban on exercising the right to carry, so if CA sheriffs are going to use GMC like they used GC to limit issuance of licenses, they will be on shaky ground.

galapoola
February 25, 2014, 02:59 PM
I was pleasantly surprised that IL did not challenge the court of appeals when they lost, I'm further surprised that Gore has said he wouldn't challenge. Makes me think they are getting a phone call from someone telling them to stand down. If the tyrants win in the lower courts they have no say whether a plaintiff can appeal. But if they loose the onus is on them not the plaintiff to appeal it up. That's why I'm thinking there are some puppet masters somewhere telling people like Gore and AG Madigan of IL to halt. The fear is that by adding yet another lawsuit to the list that could reach SCOTUS it increases the odds in our favor. It's a numbers game, the less cases appealed up the less the chance of one being heard. The tyrants do not want "to bear" defined by SCOTUS in a case that specifically addresses it. Yes the dicta in Heller & McDonald is clear but the lower courts have been avoiding that, kicking it down the road. That is the end game IMHO, to not get one of these before SCOTUS. If they succeed, then states outside the 7th and 9th districts can continue to infringe as needed.

madsend81
February 27, 2014, 07:46 PM
On calguns (http://www.calguns.net/calgunforum/showthread.php?t=899977), the latest is that the California Peace Officer's Association and the California Police Chiefs' Association have filed a request for an En Banc hearing, even though their standing to request such is questionable as they were simply Amici, not parties to the original case.

Here is the filing:
https://www.dropbox.com/s/9eyocu0pc2rczhs/Document.pdf

madsend81
February 27, 2014, 08:17 PM
And the state AG has filed a motion to intervene as defendant and has petitioned the court for an En Banc hearing.

Motion to Intervene:
https://www.dropbox.com/s/fizgv7vzfrrzhgn/mtn%20to%20intervene.pdf

Petition for En Banc:
https://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-appeals-ninth-circuit-concealed-weapons-permit

madsend81
February 28, 2014, 03:35 PM
Not to be outdone, the Brady Campaign has also filed a motion to Intervene. This one just smells like a stall tactic. There is no way the Brady campaign has any standing to be granted a motion to intervene.

**Warning, the PDF is 187 pages***
http://cdn.ca9.uscourts.gov/datastore/general/2014/02/28/10-56971_motion_to_intervene_brady_campain.pdf

madsend81
February 28, 2014, 03:38 PM
This line is cute:
Brady has standing because its members have suffered a particularized injury due to the Court's decision to overturn the San Diego CCW policy.

Red Wind
February 28, 2014, 05:19 PM
Gotta wonder what the "particularized injury" was,Cuz?

morcey2
February 28, 2014, 10:38 PM
Gotta wonder what the "particularized injury" was,Cuz?
Loss of control of a segment of the population that they believe that they should control. That's the only thing I can think of.

Trent
February 28, 2014, 10:49 PM
Hah not going down without a fight, are they?

Red Wind
February 28, 2014, 10:55 PM
Loss of control of a segment of the population that they believe that they should control. That's the only thing I can think of.

Good reasoning.That is probably it.

Librarian
March 1, 2014, 04:15 PM
Development: Filed 2/28/2014
Before: O’SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges.
The Brady Campaign to Prevent Gun Violence’s Motion to Extend Time for
Filing a Petition for Rehearing En Banc and Stay the Issuance of the Mandate, and
Proposed Intervenor State of California’s Motion to Extend Time to File a Petition
for Rehearing En Banc and Stay Issuance of the Mandate, both filed with this
Court on February 27, 2014, are GRANTED. Any proposed petitions for rehearing
filed with this Court by February 27, 2014 will be considered timely if this Court
grants the petitioners’ concurrently filed motions to intervene. This order does not
extend the time for filing petitions for rehearing for any petitioner who did not
move to intervene by February 27, 2014.

Submission with respect to the pending motions to intervene is deferred
pending further order of the Court. Issuance of the mandate is stayed pending
further order of the Court.

So, this seems to mean
(1) the mandate to the lower court is stayed, and
(2) the submissions by Brady and the CA-AG are timely, and (apparently the Court will look at them to see if they should be allowed to ask for rehearing, and if the Court decides to allow it) the deadline for requesting such rehearing is extended.

ohbythebay
May 22, 2014, 09:12 PM
I read about the California decision as if it was something that happened today, yet reading this thread, seems like it is old..

Can someone bring me up to date on whats what ? I thought it was today and this will spark a SCOTUS decision since we have conflicting federal appeals court rulings ..

Librarian
May 22, 2014, 09:34 PM
9th Circuit is still deciding whether to allow the CA AG to intervene. The last action was May 14, a response from Sheriff Gore/his legal team as ordered by the Court.

See the 9th's web site for the case http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000722.

bds
May 22, 2014, 09:42 PM
ohbythebay, here's summary overview and update from Michel & Associates' webpage - http://michellawyers.com/2014/nra-victory-in-the-peruta-shall-issue-california-ccw-case/

Here's a video of attorney Chuck Michel talking with Cam Edwards of NRA News about the case - https://www.youtube.com/watch?v=YMOkaflMly4

HexHead
May 22, 2014, 09:57 PM
That is just freaking Amazing! I can't believe this came from the 9th circus.
Even a stopped clock is right twice a day.

ohbythebay
May 22, 2014, 10:51 PM
The court links seem to be "old news". It seems like TODAY decided the case (2 to 1) unless of course they (CA Atty General) appeals? Still wondering what I am missing...

EDIT: Never mind///clarity now..it is old news..NRA and certain articles made it sound like this was "breaking news"....THANKS TO ALL

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