Court sets California gun-carry case on path to Supreme Court

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Aim1

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How long would this take to get to SCOTUS? I hope we have the right court make up for it.




http://m.sfgate.com/news/article/Court-sets-California-gun-carry-case-on-path-to-9144507.php




Court sets California gun-carry case on path to Supreme Court

A federal appeals court rejected a challenge by gun groups Monday to California’s requirement of a license to carry a concealed handgun outside the home, clearing the way for a final test in the U.S. Supreme Court.


The Ninth U.S. Circuit Court of Appeals in San Francisco upheld the law in June, ruling 7-4 that there is no constitutional right to carry concealed weapons in public. Opponents sought a rehearing before the entire appeals court, but the court said Monday that the request had failed to win a majority among its 28 active judges. No vote total was announced.
 
Case documents for Peruta are here: http://michellawyers.com/guncasetracker/perutavsandiego/ and here:http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000722

I believe the applicable US Code is 28 USC 2101
(b) Any other direct appeal to the Supreme Court which is authorized by law, from a decision of a district court in any civil action, suit or proceeding, shall be taken within thirty days from the judgment, order or decree, appealed from, if interlocutory, and within sixty days if final.

See also this section of SCOTUSblog: http://www.scotusblog.com/reference/educational-resources/supreme-court-procedure/ (which says 90 days instead of 60, so I seem to have missed something...)

My guess: if SCOTUS is at all interested, nothing will actually progress in the case until 2017.
 
Curious on what ground the appeal was made. AFAIK, the court was correct in that there is no Constitutional right to carry concealed firearms in public. Nice try at getting Constitutional Carry, but I don't see it. May as well start a snowball fight in hell.
 
California set itself up. When people were legally open carrying unloaded firearms a few years ago the court ruled that they didn't need to legally allow anyone to carry concealed because they had that as an option.

However since then the state has banned open carry of even unloaded guns, handguns or long guns, and made transport of them more restricted in general as ways once legal to transport no longer are.
Essentially limiting people to cased guns now.


So the court took the easy way out rather than crafting some real logic based on other legal reasoning that might get defeated more easily post McDonald.
After Heller and McDonald went through and when they were strong recent precedents the state thought an anti gun argument preventing carrying in general except for special individuals or permits arbitrarily granted would get defeated. So they chose to say that they were actually letting people carry in compliance with the Constitution because they could carry unloaded. Now it is dealing with the aftermath.
 
If it went to the SCOTUS now, the best they could hope for is a tie, which would uphold the 9th Circuit's decision.
 
If it went to the SCOTUS now, the best they could hope for is a tie, which would uphold the 9th Circuit's decision.

Correct - just as when Obama lost his "Executive Order" case by a 4-4 vote a while back, which then had the practical effect of "affirming" the decision of the lower appeals court, which had ruled against him.

Hence, the outcome of the 2016 presidential election must be Not Hillary if we expect to see any future pro-individual RKBA rulings from SCOTUS over the next several decades.
 
If it went to the SCOTUS now, the best they could hope for is a tie, which would uphold the 9th Circuit's decision.

If it is a 'tie" and the 9th Circuit's decision is upheld, does this mean that it applies to all of America, or does it stay in the 9th?
 
That will depend on how the decision is written. SCOTUS could confine the decision to the specific CA law, or could broadly rule that there's no constitutional right to carry outside the home.
 
steve4102 said:
If it is a 'tie" and the 9th Circuit's decision is upheld, does this mean that it applies to all of America, or does it stay in the 9th?
SCOTUS decision applies to all of the USA.

SCOTUS refuses to hear, means it stays in the Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and Northern Mariana Islands).
 
...but with a tie is there even a decision?

If a tie results in the 9th being upheld, would this non-decision only apply to the 9th as there was no victor in this case?
 
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Good luck to all of us with the not Hillary thing. The Surpeme court is more
rigidly particine that Congress. Liberal justices are in lockstep with the lefts
agenda. Moderate to right justices are all over the place. The Good and Bad done by the Surpremes can alter society forever. That said, we do have the best of all bad systems of government ever devised.
 
IMO,,,,,,,

It comes down to 'bear' and may ultimately hinge on Ginsburg's own words.

From Heller

In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate: ‘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.’” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.


Simplistic layman summary of Muscarello:

Muscarello was a case about a drug dealer/trafficker. During the commission of a drug crime, a gun was found in the glove box of the car he was in.

He was given a mandatory sentence under the reasoning that he was carrying a gun; the gun in the glove box.

The Supreme Court granted certiorari to determine whether possession of a firearm in a vehicle at the scene, rather than on their person, constituted “carrying” a firearm within the statutory meaning.


Muscellero argued that he wasn't 'carrying'; he was merely 'transporting'. He lost and the conviction stood.


Ginsburg gave a dissenting opinion that basically was based on the idea of not destroying the difference between 'transporting' and 'carrying' which are noted as being different in Fed law. She also gave reasoning supporting her dissent which was the definitions and referenced the 2nd Amendment in doing so.


In the Heller Opinion, Scalia referenced Ginsburgs past statement as being relevant to the Heller decision.



Also from Heller


Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment . Pp. 28–30.

(d) The Second Amendment ’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

2. 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 Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment . The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.


(emphasis added)

So, IMO (paraphrasing),

SCOTUS said they weren't advocating or undermining Conceal Carry.

SCOTUS said requiring the gun be inoperable "would fail constitutional muster".

SCOTUS said that a license/permit is OK as long as its "not enforced arbitrarily and capriciously".


Combing those with Ginsburg comments in Muscellero of carrying/bearing' in reference to the 2A and rehashed in Heller,,,,,,

Californian residents should be able to get some type of loaded firearm carrying, with a permit that isn't arbitrarily granted, and with the choice of being OC or CC (or both) being the States decision.
 
That will depend on how the decision is written. SCOTUS could confine the decision to the specific CA law, or could broadly rule that there's no constitutional right to carry outside the home.
Would that immediately eliminate Constitutional Carry in states that currently have it? Or would the law first need to be challenged in each state's court?
 
If I understand correctly, a SCOTUS tie just means the CA9 decision stands and therefore it basically stays in the 9th.



Would that immediately eliminate Constitutional Carry in states that currently have it? Or would the law first need to be challenged in each state's court?

It wouldn't eliminate it.... it would just mean there isn't the Right.

The States could still have it though.
 
And "shall carry" and "may carry" jurisdictions in CA are still issuing CCW permits.
 
I hope all goes well, 2A wise. And to think that living in San Francisco, California in 1960-1964, none of us even gave a thought to the gun issue. And I mean nobody! It simply was not on our radar.

A different time, different thoughts and different priorities.

A different America.
 
And I will add, a much better America.
The incredible focus on a simple tool that created this nation is unbelievable!

How far would Lewis & Clark have gone from St. Louis without the guns?! The Statist's are not of our cloth. Never.
 
So, IMO (paraphrasing),

SCOTUS said they weren't advocating or undermining Conceal Carry.

SCOTUS said requiring the gun be inoperable "would fail constitutional muster".

SCOTUS said that a license/permit is OK as long as its "not enforced arbitrarily and capriciously".


Combing those with Ginsburg comments in Muscellero of carrying/bearing' in reference to the 2A and rehashed in Heller,,,,,,

Californian residents should be able to get some type of loaded firearm carrying, with a permit that isn't arbitrarily granted, and with the choice of being OC or CC (or both) being the States decision.

This is not math, Smokey, this is law. There is no Additive Property, here ;)

To be frank, Ginsburg's recent comments re: Heller needing to be dismantled in advance of any particular court case is actually more pertinent than her comments re: Muscellero, but again, no rules...

Regardless how the election shakes out (yeah right), I think it's probably best we start seriously hedging our bets. It's not longer even a given we'll have a friendly Senate, no matter who's got the Big Chair, so that means there are even more new & exciting ways we lose this one by pressing SCOTUS

What goes around, comes around, and our side has reaped enormous victories at the local legislative level all across the nation, and staked out important national legal precedent. It appears we'll once more be on the defensive for a while, same as the anti's have been since '94. Personally, it would have been nice for us to have secured some protective legislation at the federal level besides the Lawful Commerce Act to tide us over through the up coming rough patch, but oh well, maybe next generation. A federal mandatory reciprocity or mandated shall-issue bill would have obviated most of this debate.

TCB
 
This is not math, Smokey, this is law. There is no Additive Property, here

It is a bit like math in that you build a case in similar fashion to building an equation.


To be frank, Ginsburg's recent comments re: Heller needing to be dismantled in advance of any particular court case is actually more pertinent than her comments re: Muscellero, but again, no rules...

If it's heard at SCOTUS it will be interesting to hear how she crafts the back peddling to support her recent comments to the effect of dismantling Heller... or if she even tries.


I'm not really disagreeing with what you're say though..... sadly.
 
While we might not like the stance of the courts, do not forget that National Reciprocity has been a few votes shy of passing every time it's brought up in Congress.

Passing that overturns the Courts' decisions with Law. The Rule of Law prevails.

There's more than one way to solve this problem.
 
a 4-4 tie in the supreme court would let the appeals court decision stand for that circuit only and the tie would not set precedent
 
They may have written off Peruta - Michel and Associates and the CRPA today filed Flanagan - http://michellawyers.com/michelle-flanagan-et-al-vs-california-attorney-general-kamala-harris-et-al/ (Case 2:16-cv-06164)
Plaintiffs Michelle Flanagan, Samuel Golden, Dominic
Nardone, Jacob Perkio, and the California Rifle & Pistol Association

7. The Ninth Circuit Court of Appeals recently upheld a similarly
restrictive “good cause” policy enforced by the San Diego County Sheriff after the
plaintiffs in that case alleged that the denial of Carry Licenses—the only remaining
means of carrying a firearm for self-defense under state law—violated the Second
Amendment. Peruta v. County of San Diego, No. 10-56971, 2016 WL 3194315
(9th Cir. June 9, 2016) (en banc). Despite the Supreme Court’s teachings in Heller
and McDonald, the majority opinion in Peruta did not address whether the Second
Amendment protects the right to publicly carry a firearm for self-defense. Nor did it
address whether denying Carry Licenses, which in turn extinguishes the only lawful
means of carrying a firearm for self-defense, violates that right. Instead, it held only
that the carrying of concealed firearms was not historically protected by the Second
Amendment, while leaving for another day the question of whether the Second
Amendment protects the carrying of firearms openly. Id. at *19. That day has
come.
 
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