Breaking news: Ninth Circuit Rules California May Issue Unconstituional

[Luger_carbine]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

NH is" conditional may issue".... and the southern tier CLEOs are getting" creative"- in a bad way.

 

[JRH6856]

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]

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]

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]

^^^^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]

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]

A bit more on where we may be going on this from the Detroit Free Press/USAToday

 

[barnbwt]

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? )

 

[steve4102]

Is there a "deadline" when SD must decide to appeal or not?

 

[madsend81]

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]

SD County has 14 days from the entry of Judgment (opinion). FRAP 40.a.1

 

[steelerdude99]

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

http://bearingarms.com/orange-co-sh...ng-to-de-facto-shall-issue-in-wake-of-peruta/

 

[danez71]

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....?

 

[NickEllis]

Whoa. That was fast. No appeal?

 

[danez71]

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.