Breaking news: Ninth Circuit Rules California May Issue Unconstituional

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.

Hit this poll.

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

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

Red Wind said:

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

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

danez71 said:

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

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

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.

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 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.

Who were the Attorneys and organizations that were/are responsible for fighting this battle for us?

JRH6856 said:

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

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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.


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Who were the Attorneys and organizations that were/are responsible for fighting this battle for us?

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California Rifle and Pistol Association Foundation,

Carl D. Michel and Paul H Neuharth attorneys

danez71 said:

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.


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Good points, but I had to ask.

is the county funding the other side or is it coming out of the sheriff's dept budget?

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

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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.

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.

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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.

Could this be reversed based on a technicality? The dissenting judge, Sidney R. Thomas, stated that the majority erred because:

THOMAS said:

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.

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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:

District of Columbia v. Heller said:

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.

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The dissenting judge reiterates the latter by stating:

THOMAS said:

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.

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

It's a good day in California. especially to turn LA into shall issue. I expect crime to drop.

Praxidike said:

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.

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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.”

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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.

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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 ...

gc70 said:

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.

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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.

Praxidike said:

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.

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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.

Al Norris said:

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.

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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.

Praxidike said:

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.

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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.

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How much more clear can it be answer?




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