En Banc Loss in Peruta

[swinokur]

not unexpected.

 

[pdsmith505]

Not exactly unexpected, however disappointing it might be.

"The en banc court held that the history relevant to both
the Second Amendment and its incorporation by the
Fourteenth Amendment lead to the same conclusion: The
right of a member of the general public to carry a concealed
firearm in public is not, and never has been, protected by the
Second Amendment. Therefore, because the Second
Amendment does not protect in any degree the right to carry
concealed firearms in public, any prohibition or restriction a
state may choose to impose on concealed carry — including a requirement of “good cause,” however defined — is
necessarily allowed by the Amendment. The en banc court
stated that there may or may not be a Second Amendment
right for a member of the general public to carry a firearm
openly in public, but the Supreme Court has not answered
that question."

 

[danez71]

This is a mixed bag of judicial opinions.

Concurring, Judge Graber, joined by Chief Judge Thomas
and Judge McKeown, wrote separately only to state that, even
if the Second Amendment applied to the carrying of
concealed weapons in public, the provisions at issue would be
constitutional.


Dissenting, Judge Callahan, joined by Judge Silverman as
to all parts except section IV, by Judge Bea, and by Judge
N.R. Smith as to all parts except section II.B, stated that in
the context of present-day California law, the defendant
counties’ limited licensing of the right to carry concealed
firearms is tantamount to a total ban on the right of an
ordinary citizen to carry a firearm in public for self-defense.
Thus, plaintiffs’ Second Amendment rights have been
violated.


Dissenting, Judge Silverman, joined by Judge Bea, would
hold that the challenged laws are unconstitutional under the
Second Amendment because they do not survive any form of
heightened scrutiny analysis.


Dissenting, Judge N.R. Smith stated that he joined the
dissent of Judge Callahan but wrote separately only to
express his opinion that the appropriate remedy is to remand
this case to the district courts to allow them to initially
determine and apply an appropriate level of scrutiny

Originally said by CA9

The en banc court stated that there may or may not be a Second Amendment
right for a member of the general public to carry a firearm
openly in public, but the Supreme Court has not answered
that question."

(I thought there was some sort of reference in Heller or McDonald that alluded to the 2A extending outside the home?????)


The above quote seems to me that CA9 is punting a bit to SCOTUS.


I cant help to think that timing played a part with the passing of Scalia, the current CA AG just won the primary for Senate, and Clinton gaining (or Trump losing) ground and their likely picks for replacement of Scalia and future SCOTUS picks that are may come up during their presidency.


This isn't good nationally for pro 2A'ers.

 

[Mayo]

Appeals court rules Americans don't have right to carry concealed guns

No surprise

http://www.foxnews.com/politics/201...concealed-weapons-in-public.html?intcmp=hppop

 

[old lady new shooter]

Thanks to the OP for attaching the pdf of the actual decision.

The court seems to be sneaking out by saying that they can't rule on whether limiting concealed carry violates the 2nd Amendment because California also prohibits open carry, because the plaintiffs only brought the issue of concealed carry.

 

[joem1945]

I don't think the 9th decision would stand if the SCOTUS will hear the case. Besides those states that have CCW and the people that do carry will never go back to CCW being prohibited.

 

[heyjoe]

if the case were appealed to the supreme court right now it would probably result in a 4-4 tie which would result in letting the Appeals court decision stand

 

[gbran]

Seems to me the state could get away with banning CCW or OC, but not both.

In much of the state, both aren't available to the public.

 

[Aim1]

if the case were appealed to the supreme court right now it would probably result in a 4-4 tie which would result in letting the Appeals court decision stand

This is what's really bad.

 

[lilguy]

It took me 42 years to get the privalidge to carry a gun after first getting my FOID in the early 70's. Im tired and sick now. This war will never end until they get all our guns. Ill go down fighting, but I do not have a good feeling for the next generations.

 

[Red Wind]

If the SCOTUS takes on this case. in all likelihood it will not be until 2017. The court will be back to full strength by then, for better or for worse, for the 2nd Amendment.

 

[Crawdad1]

If the SCOTUS takes on this case. in all likelihood it will not be until 2017. The court will be back to full strength by then, for better or for worse, for the 2nd Amendment.

Not necessarily. If a Democrat wins and the Republicans hold the Senate then they can block any appointment for a very long time. Its important to vote in all of the elections and just not for the next president.

 

[barnbwt]

Correct me if my deductive reasoning is wrong, but;
-If one can only openly or covertly bear a weapon
-and to do so covertly is not protected as held here
The phrase: "The en banc court stated that there may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public, but the Supreme Court has not answered that question."

Is tantamount to: "The en banc court stated that there may or may not be a Second Amendment right" to bear firearms in any manner, but the Supreme Court has not answered that question.

What I'm about to say is very unpopular in this forum. Are we average American laymen really supposed to accept any courts' constitutional authority extends to determining the very existence or non-existence of enumerated freedoms entirely? The core of this ruling is ridiculous, and will not be respected by anyone with two brain cells to rub together, regardless of any legal schooling or lack thereof --regardless of any lawyers' or judges' umbrage of that fact. It is dangerously corrosive to respect for the rule of law for text this arrogant to be given power. Even sleazier is that they would deny the plaintiff his carry rights entirely --of their own admission-- until "some higher authority" deigns to determine or not determine the particulars. They clearly do not believe there are any protections for the bearing of arms conferred by the RKBA.

The right is only to *keep* arms, in other words, provided they are meet a certain subset of shifting definitions, or are on an approved list, subject to confiscation without due process, subject to safe storage laws --oh, so I guess there isn't a broad freedom to *keep* said arms, either. So why was this text the second addition to the governing document in the first place?

That said, back to the opinion at hand. Taking its supposed legitimacy at face value; is this not a plainer-than-usual avoidance of the 9th amendment in determining the extent of rights? I know that the 9th and 10th have been allowed to atrophy due to lack of oversight and consolidation of federal power over the centuries, but to claim that the 2nd protects at most one mode of bearing a weapon when;
-its text makes no such distinction
-is intentionally broad like the other bill of rights amendments
-does not impinge on other enumerated rights, even with a broad reading
-and we have a whole other amendment which specifically states individual rights do not extend only to the initially-enumerated rights of the people? (i.e. how the Gay Marriage right was concocted entirely from expanded social acceptance of that behavior)

I know there are historical precedents to banning concealed weapons, but I'd think we can all agree that hardly makes them 'legal' precedents. After all, there is equal precedent (if not older) within this country for all sorts of restrictive practices now anathema to our society, like too-cruel punishments or lack of equal protection under the law. That a bad law existed without the proper level of scrutiny for a period of time should not cement its injustice in perpetuity --right? Were that the case, we'd have had no justification for denying The Crown, then in power for like two-hundred years in America.

Otherwise, all you'd have to do is not enforce an unjust law long enough to wait out the counter-arguments (like most of the Jim Crow gun laws still on the books, now applied to the whole society instead of just minorities)

"A well-regulated militia being necessary to the security of a free state, the right of the people."
Okay, now it sounds like that freedom to feel safe and be protected by the government I keep hearing about...well, maybe if your grammar isn't so good.

TCB

 

[barnbwt]

The above quote seems to me that CA9 is punting a bit to SCOTUS.

Normally I'd say yes, but in recent years, and especially with only 8 members now, the court seems more interested in letting the ball roll to a stop on its own, than taking a knee & settling any issue remotely gun-related (hard to blame them, given the very rapid state of applicable laws being passed all over --I think their fault is in not recognizing they are presiding over a balkanization of laws in this country not seen since segregation, growing ever more divided-- rather than merely being 'settled' steadily across the nation)

I cant help to think that timing played a part with the passing of Scalia, the current CA AG just won the primary for Senate, and Clinton gaining (or Trump losing) ground and their likely picks for replacement of Scalia and future SCOTUS picks that are may come up during their presidency.

If I'm not mistaken, all three major gun law passages were preceded by a series of similarly unfortunate events ('34 NFA, '68 GCA, '94 AWB). Highly suspect and damaging legal precedents often resulted, from which we have yet to recover.

This isn't good nationally for pro 2A'ers.

Yup. We've had a good run for a solid two decades --it's silly to think it'd continue on a path toward freedom forever, given how fundamentally intractable this issue is.

TCB

 

[Guy B. Meredith]

With Heller and MacDonald aren't restrictions held to close scrutiny with the government required to show actual need for the restrictions? Would SCOTUS be considering anything other than whether te law meets the test?

 

[danez71]

Correct me if my deductive reasoning is wrong, but;
-If one can only openly or covertly bear a weapon
-and to do so covertly is not protected as held here
The phrase: "The en banc court stated that there may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public, but the Supreme Court has not answered that question."

Is tantamount to: "The en banc court stated that there may or may not be a Second Amendment right" to bear firearms in any manner, but the Supreme Court has not answered that question.

<snip>

I understand that SCOTUS hasn't specifically answered that questions, however, it was addressed in Heller.


Pages 10 and 11 in Heller decision

At the time of the founding, as now, to “bear” meant to“ carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford).When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. 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.

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.”8 It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense “of one’s person or house”—what he called the law of “self preservation.”

From the Peruta case pages 14 and 15

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.’”
Heller, 554 U.S. at 584 (quoting Muscarello, 524 U.S. at 143
(Ginsburg, J., dissenting) (quoting Black’s Law Dictionary
214 (6th ed. 1998)); see also id. at 592 (concluding that the
Second Amendment “guarantee the individual right to . . .
carry weapons in case of confrontation”).


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 sixshooter
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.

What's a bit odd to me is that Peruta sued saying the CA bans open carry (even unloaded open carry) and that combined with the 'good cause' clause for a concealed permit results in a de facto ban on carrying in public.



CA9, in my words, said: 'The 2A doesn't protect carrying concealed in public and in fact, SCOTUS has NOT specifically ruled that carrying outside the home is protected (even though we see that they inferred/alluded it).


I'll add, that imo, CA9 is also saying: 'Therefor, in order to keep status quo, we're going to punt this until SCOTUS rules specifically that carrying outside the home is protected.'

 

[old lady new shooter]

Correct me if my deductive reasoning is wrong, but;
-If one can only openly or covertly bear a weapon
-and to do so covertly is not protected as held here
The phrase: "The en banc court stated that there may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public, but the Supreme Court has not answered that question."

Is tantamount to: "The en banc court stated that there may or may not be a Second Amendment right" to bear firearms in any manner, but the Supreme Court has not answered that question.

The case they were ruling on was only about concealed carry, and apparently the plaintiff must not have brought the argument that since open carry is illegal, the "may issue" flavor of concealed carry in jurisdictions where self-defense is not considered sufficient reason to be granted a permit amounts to an unconstitutional ban on "bearing" arms. Hopefully the next case won't make the same mistake.

That said, I'm despairing here.

 

[JTHunter]

Crawdad1 said:

Not necessarily. If a Democrat wins and the Republicans hold the Senate then they can block any appointment for a very long time. Its important to vote in all of the elections and just not for the next president.

There are too many RINOs in both the House and the Senate to hold out as long as you hope.

 

[TimSr]

if the case were appealed to the supreme court right now it would probably result in a 4-4 tie which would result in letting the Appeals court decision stand

This is why the next presidential election is so important. You are voting on control of the Supreme Court.

 

[Red Wind]

JTHunter is correct. There is no way to hold off a SCOTUS nomination to be confirmed past 2017. No way in this or any other world.

 

[pdsmith505]

The case they were ruling on was only about concealed carry, and apparently the plaintiff must not have brought the argument that since open carry is illegal, the "may issue" flavor of concealed carry in jurisdictions where self-defense is not considered sufficient reason to be granted a permit amounts to an unconstitutional ban on "bearing" arms. Hopefully the next case won't make the same mistake.

That said, I'm despairing here.

When the case was originally brought up, CA still had legal unloaded open carry. Before it hit the initial CA9 hearing, that had changed, and the plaintiff did bring up the fact that there is no possible way to carry if you live in a no-issue city/county during that hearing. That is part of why the plaintiffs won the initial CA9 ruling in Peruta.

The same argument was made during the en-banc proceedings.

 

[old lady new shooter]

When the case was originally brought up, CA still had legal unloaded open carry. Before it hit the initial CA9 hearing, that had changed, and the plaintiff did bring up the fact that there is no possible way to carry if you live in a no-issue city/county during that hearing. That is part of why the plaintiffs won the initial CA9 ruling in Peruta.

The same argument was made during the en-banc proceedings.

If the argument was made then I don't see how the court could weasel out by saying it wasn't raised.

Well, Michel and everybody else said the case would be appealed to SCOTUS regardless of the outcome... so now we "just" have to make sure the person we elect as President will nominate friendly justices.

 

[pdsmith505]

If the argument was made then I don't see how the court could weasel out by saying it wasn't raised.

Well, Michel and everybody else said the case would be appealed to SCOTUS regardless of the outcome... so now we "just" have to make sure the person we elect as President will nominate friendly justices.

First, let me apologize for the long quotes from the ruling...

Judge Fletcher sidestepped the question on whether or not open carry is protected several times. Instead, focusing only on whether concealed carry, independent of all other laws, was constitutionally protected, and flatly refused to consider the totality of CA's legal structure.

We do not reach the question whether the Second Amendment protects some ability to carry firearms in public, such as open carry. That question was left open by the Supreme Court in Heller, and we have no need to answer it here. Because Plaintiffs challenge only policies governing concealed carry, we reach only the question whether the Second Amendment protects, in any degree, the ability to carry concealed firearms in public.

There may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public. The Supreme Court has not answered that question, and we do not answer it here.

The argument of the principal dissent is based on a logical fallacy. Even construing the Second Amendment as protecting the right of a member of the general public to carry a firearm in public (an issue we do not decide), and even assuming that California’s restrictions on public open carry violate the Second Amendment so construed (an issue we also do not decide), it does not follow that California’s restrictions on public concealed carry violate the Amendment.

In light of our holding, we need not, and do not, answer the question of whether or to what degree the Second Amendment might or might not protect a right of a member of the general public to carry firearms openly in public.

The plaintiffs, once open carry was no longer legal, made the argument that since CA's legislature has chosen to allow concealed carry and not not concealed, then the permit to carry concealed could not be dependent on the arbitrary whim as to what constitutes "good cause".

Judge Callahan's dissent adopts the argument presented by the plaintiff:

Plaintiffs assert that the counties’ concealed weapons
licensing schemes, in the context of California’s regulations
on firearms, obliterate their right to bear arms for self-defense
in public. The Supreme Court in Heller addressed concealed carry
restrictions and instructed that those restrictions be
evaluated in context with open-carry laws to ensure that the
government does not deprive citizens of a constitutional right
by imposing incremental burdens. Heller, 554 U.S. at 629.
In the context of present-day California law, the Defendant
counties’ limited licensing of the right to carry concealed
firearms is tantamount to a total ban on the right of an
ordinary citizen to carry a firearm in public for self-defense.
Thus, Plaintiffs’ Second Amendment rights have been
violated. While states maychoose between different manners
of bearing arms for self-defense, the right must be
accommodated.
The majority sets up and knocks down an elaborate straw
argument by answering only a narrow question—whether the
Second Amendment protects a right to carry concealed
firearms in public. But this approach is contrary to Heller,
and contrary to the prescribed method for evaluating and
protecting broad constitutional guarantees. Indeed, the
majority’s lengthy historical analysis fails to appreciate that
many of its cited cases either presumed a right to openly carry
a firearm in public or relied on a pre-Heller interpretation of
the Second Amendment. Because the majority eviscerates
the Second Amendment right of individuals to keep and bear
arms as defined by Heller and reaffirmed in McDonald, I
respectfully dissent.

 

[Crawdad1]

There are too many RINOs in both the House and the Senate to hold out as long as you hope.

Better a RINO then a Democrat. Remember that and get out and vote.

 

[barnbwt]

I'll add, that imo, CA9 is also saying: 'Therefor, in order to keep status quo, we're going to punt this until SCOTUS rules specifically that carrying outside the home is protected.'

Pity they wasted years and millions of dollars pretending to humor a foregone conclusion.

Should've just said up front they lacked the authority to hear the case (apparently)

TCB