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Old February 14, 2014, 12:22 PM   #76
danez71
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Quote:
Originally Posted by HexHead View Post
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.

Quote:
Originally Posted by gc70 View Post
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.
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Old February 14, 2014, 12:23 PM   #77
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Originally Posted by Sam1911 View Post
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?

Last edited by Praxidike; February 14, 2014 at 12:30 PM.
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Old February 14, 2014, 12:36 PM   #78
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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.
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Old February 14, 2014, 01:06 PM   #79
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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".
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Old February 14, 2014, 01:11 PM   #80
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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.
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Old February 14, 2014, 01:14 PM   #81
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Originally Posted by Praxidike View Post
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.
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Old February 14, 2014, 01:18 PM   #82
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Okay then why would that change if they were to take up this case?
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Old February 14, 2014, 01:25 PM   #83
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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.
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Old February 14, 2014, 01:32 PM   #84
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Does anyone have a link to the full court decision for this?
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Old February 14, 2014, 01:45 PM   #85
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Originally Posted by Praxidike View Post
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.
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Old February 14, 2014, 01:45 PM   #86
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Does anyone have a link to the full court decision for this?
It's in post #6 of this thread.
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Old February 14, 2014, 02:17 PM   #87
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Wouldn't a reversal of the no open carry law(s) nullify the effect of this decision and it's ultimate resolution?
Quote:
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!!

Last edited by Mike1234567; February 14, 2014 at 02:28 PM.
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Old February 14, 2014, 02:35 PM   #88
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Originally Posted by krs View Post
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.
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Old February 14, 2014, 02:55 PM   #89
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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.
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Old February 14, 2014, 04:12 PM   #90
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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.
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Old February 14, 2014, 04:33 PM   #91
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It's in post #6 of this thread.
Gracias. Totally missed it.
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Old February 14, 2014, 04:55 PM   #92
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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.
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Old February 14, 2014, 05:01 PM   #93
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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.
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Old February 14, 2014, 05:11 PM   #94
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IL gets CC, CA may get shall issue. Is that a cold front heading to Hades?
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Old February 14, 2014, 05:30 PM   #95
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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.
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Old February 14, 2014, 05:35 PM   #96
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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?
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Old February 14, 2014, 06:00 PM   #97
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Originally Posted by Praxidike View Post
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.
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Old February 14, 2014, 06:37 PM   #98
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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.

Quote:
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...

Quote:
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..

Quote:
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.
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Old February 14, 2014, 06:42 PM   #99
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Originally Posted by madsend81 View Post

<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.


.
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Last edited by danez71; February 14, 2014 at 06:50 PM.
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Old February 14, 2014, 07:21 PM   #100
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Originally Posted by gc70
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.

Quote:
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.
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