Breaking news: Ninth Circuit Rules California May Issue Unconstituional

[ChaoSS]

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]

^ 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]

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 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]

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! As a former Californian (San Francisco), I like it.

 

[Praxidike]

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]

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]

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]

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]

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]

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]

...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]

Interesting analysis of the ruling

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

 

[Trent]

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]

^^

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]

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]

...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]

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 was reversed by the 4th Circuit.

 

[Frank Ettin]

...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]

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]

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]

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]

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]

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 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]

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]

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.