Quantcast
Breaking news: Ninth Circuit Rules California May Issue Unconstituional - Page 6 - THR
THR  

Go Back   THR > Social Situations > Legal

Welcome to THR
You are currently viewing our site as a guest which gives you limited access to view most discussions, articles and access our other FREE features. By joining our free community you will have, access to post topics, communicate privately with other members (PM), respond to polls, and access many other special features. Registration is fast, simple and absolutely free so please, join our community today!


If you have any problems with the registration process or your account login, please visit the help section.

Reply
 
Thread Tools
Old February 15, 2014, 06:55 PM   #126
Frank Ettin
Moderator
 
 
Join Date: April 29, 2006
Location: California - San Francisco Bay Area
Posts: 7,728
Breaking news: Ninth Circuit Rules California May Issue Unconstituional

^^^
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.
__________________
"Though boys throw stones at frogs in sport, the frogs do not die in sport, but in earnest." Bion (Greek poet, ca. 100 BCE)
Frank Ettin is offline  
Old February 15, 2014, 07:15 PM   #127
streak
Member
 
 
Join Date: July 25, 2012
Location: SoCal
Posts: 30
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.
streak is online now  
Old February 15, 2014, 07:41 PM   #128
JRH6856
Member
 
 
Join Date: December 5, 2011
Location: Flower Mound, TX
Posts: 3,544
Quote:
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?
__________________
"The right of the people to keep and bear arms shall not be infringed" US Constitution, 2A, 1791
“Rights are not supposed to be open to popularity contests." Rachel Maddow, 2013

The only thing you can count on being set in stone is your epitaph...if you're lucky
JRH6856 is offline  
Old February 15, 2014, 07:50 PM   #129
ilbob
Member
 
 
Join Date: June 14, 2006
Location: Illinois
Posts: 7,788
Quote:
Originally Posted by Red Wind View Post
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.
__________________
bob
Disclaimers: I am not a lawyer, cop, soldier, gunsmith, politician, plumber, electrician, or a professional practitioner of many of the other things I comment on in this forum.
http://ilbob.blogspot.com/
ilbob is offline  
Old February 15, 2014, 09:01 PM   #130
joeschmoe
Member
 
 
Join Date: December 27, 2012
Posts: 1,291
Quote:
Originally Posted by danez71 View Post

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?
__________________
Sent via Laser Telegraphy Encryption from my Mobile Moon Base.
joeschmoe is offline  
Old February 15, 2014, 10:05 PM   #131
Red Wind
Member
 
 
Join Date: October 13, 2013
Location: Rock Harbor,Florida
Posts: 669
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.

Last edited by Red Wind; February 15, 2014 at 10:47 PM. Reason: Restating full original posts wording.
Red Wind is offline  
Old February 16, 2014, 02:12 AM   #132
Crashbox
Contributing Member
 
 
Join Date: January 12, 2010
Location: Lynden, Washington
Posts: 505
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.
__________________
This signature intentionally left blank.
Crashbox is offline  
Old February 16, 2014, 02:48 AM   #133
JRH6856
Member
 
 
Join Date: December 5, 2011
Location: Flower Mound, TX
Posts: 3,544
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.
__________________
"The right of the people to keep and bear arms shall not be infringed" US Constitution, 2A, 1791
“Rights are not supposed to be open to popularity contests." Rachel Maddow, 2013

The only thing you can count on being set in stone is your epitaph...if you're lucky

Last edited by JRH6856; February 16, 2014 at 04:16 AM.
JRH6856 is offline  
Old February 16, 2014, 07:03 AM   #134
steve4102
Member
 
 
Join Date: October 14, 2004
Location: Minnesota
Posts: 1,950
Who were the Attorneys and organizations that were/are responsible for fighting this battle for us?
steve4102 is offline  
Old February 16, 2014, 11:41 AM   #135
danez71
Member
 
 
Join Date: August 18, 2009
Posts: 1,759
Quote:
Originally Posted by JRH6856 View Post
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.


.
__________________
.

Ask yourself, Is the goal to get more states to support the 2A or to voluntarily handover to the Anti's one state at a time?

The US was founded because people ran away and left,... However, the Constitution came to be because we STOPPED RUNNING AND FOUGHT for our Rights.

Last edited by danez71; February 16, 2014 at 11:49 AM.
danez71 is offline  
Old February 16, 2014, 12:20 PM   #136
Luger_carbine
Member
 
 
Join Date: June 19, 2012
Posts: 45
Quote:
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
Luger_carbine is offline  
Old February 16, 2014, 07:22 PM   #137
JRH6856
Member
 
 
Join Date: December 5, 2011
Location: Flower Mound, TX
Posts: 3,544
Quote:
Originally Posted by danez71 View Post
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.
__________________
"The right of the people to keep and bear arms shall not be infringed" US Constitution, 2A, 1791
“Rights are not supposed to be open to popularity contests." Rachel Maddow, 2013

The only thing you can count on being set in stone is your epitaph...if you're lucky
JRH6856 is offline  
Old February 16, 2014, 07:32 PM   #138
ilbob
Member
 
 
Join Date: June 14, 2006
Location: Illinois
Posts: 7,788
is the county funding the other side or is it coming out of the sheriff's dept budget?
__________________
bob
Disclaimers: I am not a lawyer, cop, soldier, gunsmith, politician, plumber, electrician, or a professional practitioner of many of the other things I comment on in this forum.
http://ilbob.blogspot.com/
ilbob is offline  
Old February 16, 2014, 09:04 PM   #139
9mmepiphany
Moderator
  
 
Join Date: December 27, 2002
Location: northern california
Posts: 15,500
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.
__________________
Because the journey is the worthier part...The Shepherd's Tale

Correct Grip
DA Trigger Management
How to Dryfire and Hit Stuff

Forum Rules
9mmepiphany is offline  
Old February 16, 2014, 10:57 PM   #140
JRH6856
Member
 
 
Join Date: December 5, 2011
Location: Flower Mound, TX
Posts: 3,544
Quote:
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. Though perhaps not with the Sheriff's budget.
__________________
"The right of the people to keep and bear arms shall not be infringed" US Constitution, 2A, 1791
“Rights are not supposed to be open to popularity contests." Rachel Maddow, 2013

The only thing you can count on being set in stone is your epitaph...if you're lucky
JRH6856 is offline  
Old February 16, 2014, 11:16 PM   #141
9mmepiphany
Moderator
  
 
Join Date: December 27, 2002
Location: northern california
Posts: 15,500
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
__________________
Because the journey is the worthier part...The Shepherd's Tale

Correct Grip
DA Trigger Management
How to Dryfire and Hit Stuff

Forum Rules
9mmepiphany is offline  
Old February 17, 2014, 12:36 AM   #142
JRH6856
Member
 
 
Join Date: December 5, 2011
Location: Flower Mound, TX
Posts: 3,544
Quote:
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.
__________________
"The right of the people to keep and bear arms shall not be infringed" US Constitution, 2A, 1791
“Rights are not supposed to be open to popularity contests." Rachel Maddow, 2013

The only thing you can count on being set in stone is your epitaph...if you're lucky
JRH6856 is offline  
Old February 17, 2014, 07:50 AM   #143
Praxidike
Member
 
 
Join Date: July 18, 2013
Posts: 303
Could this be reversed based on a technicality? The dissenting judge, Sidney R. Thomas, stated that the majority erred because:

Quote:
Originally Posted by THOMAS, Circuit Judge, Dissenting
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:

Quote:
Originally Posted by District of Columbia v. Heller
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:

Quote:
Originally Posted by THOMAS, Circuit Judge, Dissenting
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.

Last edited by Praxidike; February 17, 2014 at 08:00 AM.
Praxidike is offline  
Old February 17, 2014, 07:56 AM   #144
stressed
Member
 
 
Join Date: August 6, 2013
Posts: 734
It's a good day in California. especially to turn LA into shall issue. I expect crime to drop.
stressed is offline  
Old February 17, 2014, 09:28 AM   #145
gc70
Member
 
 
Join Date: December 22, 2004
Location: North Carolina
Posts: 2,796
Quote:
Originally Posted by Praxidike
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.

Quote:
... 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.

Quote:
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.
gc70 is offline  
Old February 17, 2014, 09:55 AM   #146
raa-7
Member
 
 
Join Date: October 20, 2012
Location: Florida
Posts: 295
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 ...
raa-7 is offline  
Old February 17, 2014, 10:30 AM   #147
Praxidike
Member
 
 
Join Date: July 18, 2013
Posts: 303
Quote:
Originally Posted by gc70 View Post
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.

Last edited by Praxidike; February 17, 2014 at 10:58 AM.
Praxidike is offline  
Old February 17, 2014, 10:47 AM   #148
Al Norris
Member
 
 
Join Date: December 25, 2002
Location: Rupert, ID.
Posts: 570
Quote:
Originally Posted by Praxidike View Post
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.
__________________
Listings of the Current 2A Cases at TFL
Al Norris is offline  
Old February 17, 2014, 11:09 AM   #149
Praxidike
Member
 
 
Join Date: July 18, 2013
Posts: 303
Quote:
Originally Posted by Al Norris View Post
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.

Last edited by Praxidike; February 17, 2014 at 11:37 AM.
Praxidike is offline  
Old February 17, 2014, 12:05 PM   #150
danez71
Member
 
 
Join Date: August 18, 2009
Posts: 1,759
Quote:
Originally Posted by Praxidike View Post
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:

Quote:
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?




.
__________________
.

Ask yourself, Is the goal to get more states to support the 2A or to voluntarily handover to the Anti's one state at a time?

The US was founded because people ran away and left,... However, the Constitution came to be because we STOPPED RUNNING AND FOUGHT for our Rights.
danez71 is offline  
Reply


Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -4. The time now is 09:39 PM.


Powered by vBulletin® Version 3.8.6
Copyright ©2000 - 2014, Jelsoft Enterprises Ltd.
vBulletin Optimisation by vB Optimise.
This site, its contents, Shooting Reviews, and its contents are Copyright (c) 2010-2013 Firearms Forum, Inc.
IMPORTANT DISCLAIMER
Although The High Road has attempted to provide accurate information on the forum, The High Road assumes no responsibility for the accuracy of the information. All information is provided "as is" with all faults without warranty of any kind, either express or implied. Neither The High Road nor any of its directors, members, managers, employees, agents, vendors, or suppliers will be liable for any direct, indirect, general, bodily injury, compensatory, special, punitive, consequential, or incidental damages including, without limitation, lost profits or revenues, costs of replacement goods, loss or damage to data arising out of the use or inability to use this forum or any services associated with this forum, or damages from the use of or reliance on the information present on this forum, even if you have been advised of the possibility of such damages.