Peruta CA9 petitioned to SCOTUS -

[old lady new shooter]

But Gorsuch is an advocate of “states’ rights”:



And as an advocate of “states’ rights,” Gorsuch should vote to respect the right of the state of California to regulate firearms as it sees fit; unless, of course, Gorsuch is an inconsistent hypocrite.

Moreover, “limited Federal government” would apply also to the Federal courts, who should acknowledge the will of the people of the states to govern themselves absent interference from the Federal courts.

Indeed, far too many supporters of gun rights are also supporters of this sort of judicial activism and legislating from the bench, to the detriment of the people of the states and local communities.

I'm going to leave it to one of the resident attorneys to respond in detail to the above, but "states' rights" does not mean a state can ignore federal law and certainly not the Constitution, in particular the Bill of Rights. It means like the Constitution says, states get to decide about anything NOT reserved for federal jurisdiction.

 

[old lady new shooter]

1) Then it's stat us quo
2) The the 9th decision stands.
3) Then there is SCOTUS ruling and we finally know.

4) They waited until the last minute to file for cert. The actions of 26 State AGs and 9 Govenors, many from gun friendly states than have little to gain and a lot to lost/jeopardize, seem to indicate a difference of opinion than yours.

The amicus brief from the governors (led by Texas) is great, it demolishes the "public safety" argument with statistics from actual experience in Texas.

 

[old lady new shooter]

2) Would this decision still only pertain to the 9th?

I believe so.

WHERE ARE THE LAWYERS HERE?

 

[Frank Ettin]

But Gorsuch is an advocate of “states’ rights”:



And as an advocate of “states’ rights,” Gorsuch should vote to respect the right of the state of California to regulate firearms as it sees fit; unless, of course, Gorsuch is an inconsistent hypocrite.

Moreover, “limited Federal government” would apply also to the Federal courts, who should acknowledge the will of the people of the states to govern themselves absent interference from the Federal courts.

Indeed, far too many supporters of gun rights are also supporters of this sort of judicial activism and legislating from the bench, to the detriment of the people of the states and local communities.

I'm going to leave it to one of the resident attorneys to respond in detail to the above, but "states' rights" does not mean a state can ignore federal law and certainly not the Constitution, in particular the Bill of Rights. It means like the Constitution says, states get to decide about anything NOT reserved for federal jurisdiction.

You're right, and jdc1244 is wrong.

First, States don't have rights. They have powers, and the 10th Amendment acknowledges the reserved police power of the States.

While the Bill of Rights was ruled in 1833 to apply only to the federal government, after the adoption of the 14th Amendment the courts have ruled that certain rights enumerated in the Bill of Rights apply to the States through the Due Process Clause of the Fourteenth Amendment and thus limit the scope of a State's exercise of its police power. The Supreme Court applied the Second Amendment to the States in McDonald v. Chicago, 561 U.S. 742 (2010).

Therefore the citizens of every State are entitle to enjoy the RKBA to the extent required by the Constitution, and any regulation by a State of the RKBA must be limited in a manner which will pass constitutional muster. The uncertainty here is that Second Amendment jurisprudence is at its formative stage, and therefore the constitutional limits to the regulation of the RKBA are not at present well defined.

 

[Frank Ettin]

2) Would this decision still only pertain to the 9th?

I'm not sure I understand the question. Are you asking what happens if SCOTUS doesn't take Peruta or takes it and the decision splits 4 to 4 leaving the 9th Circuit decision intact? If either happens, the current Peruta decision stands and applies only in the 9th Circuit.

 

[steve4102]

I'm not sure I understand the question. Are you asking what happens if SCOTUS doesn't take Peruta or takes it and the decision splits 4 to 4 leaving the 9th Circuit decision intact? If either happens, the current Peruta decision stands and applies only in the 9th Circuit.

Thanks

 

[danez71]

I'm not sure I understand the question. Are you asking what happens if SCOTUS doesn't take Peruta or takes it and the decision splits 4 to 4 leaving the 9th Circuit decision intact? If either happens, the current Peruta decision stands and applies only in the 9th Circuit.

Could you give a brief elaboration as to if SCOTUS rules in favor of Peruta as to how that affects the other districts?

IOW, does it automatically apply to the other districts? Or, is it a scenario such as someone, in another district, has to be denied a CCP when they used 'for self defense' as their good cause, then sue the State using the SCOTUS Peruta decision as the basis for their suit in order for the SCOTUS decision to apply in that other circuit? (and be successful in that suit, of course)

 

[Frank Ettin]

Could you give a brief elaboration as to if SCOTUS rules in favor of Peruta as to how that affects the other districts?

IOW, does it automatically apply to the other districts? Or, is it a scenario such as someone, in another district, has to be denied a CCP when they used 'for self defense' as their good cause, then sue the State using the SCOTUS Peruta decision as the basis for their suit in order for the SCOTUS decision to apply in that other circuit? ....

Decisions on points of law by an appellate court apply only to courts within the jurisdiction of that appellate court. So the current 9th Circuit decision in Peruta is the law only the 9th Circuit and will be binding in other, similar litigation in that Circuit. In other words, courts in the 9th Circuit would have to use the law as applied in Peruta in any similar cases. In other Circuits, however, the reasoning of the 9th Circuit may be offered to the court for whatever persuasive value it might have.

However, since the Supreme Court has national jurisdiction, its decisions on points of law must be followed by all courts within the United States -- insofar as the law is applicable and insofar as the issues are the same.

But any lawsuit directly affects the rights and obligations only of the parties to that suit. So someone with a similar complaint will often need to bring his own lawsuit -- relying on the prior decisions on matters of law.

Sometimes a subsequent suit might not be necessary. If a statute is found by SCOTUS to be unconstitutional on its face, a governmental body might simply abandon relying on the statute. But if the statute is found unconstitutional only as applied in a particular case, a governmental body might implement procedures to avoid the manner of application found improper, thus requiring further litigation.

And this subject -- the application of stare decisis and the principles of res judicata -- can get very complicated very quickly. Some definitions:

• stare decisis:

  Stare decisis is the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. Generally, courts will adhere to the previous ruling, though this is not universally true. See, e.g. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833. Stare decisis is Latin for “to stand by things decided.” The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. A court engages in vertical stare decisis when it applies precedent from a higher court. Consequently, stare decisis discourages litigating established precedents, ....

  
  
• res judicata:

  Literally "a matter judged", res judicata is the principle that a matter may not, generally, be relitigated once it has been judged on the merits.
  
  Res judicata encompasses limits on both the claims and the issues that may be raised in subsequent proceedings:...

 

[danez71]

Decisions on points of law by an appellate court apply only to courts within the jurisdiction of that appellate court. So the current 9th Circuit decision in Peruta is the law only the 9th Circuit and will be binding in other, similar litigation in that Circuit. In other words, courts in the 9th Circuit would have to use the law as applied in Peruta in any similar cases. In other Circuits, however, the reasoning of the 9th Circuit may be offered to the court for whatever persuasive value it might have.

However, since the Supreme Court has national jurisdiction, its decisions on points of law must be followed by all courts within the United States -- insofar as the law is applicable and insofar as the issues are the same.

But any lawsuit directly affects the rights and obligations only of the parties to that suit. So someone with a similar complaint will often need to bring his own lawsuit -- relying on the prior decisions on matters of law.

Sometimes a subsequent suit might not be necessary. If a statute is found by SCOTUS to be unconstitutional on its face, a governmental body might simply abandon relying on the statute. But if the statute is found unconstitutional only as applied in a particular case, a governmental body might implement procedures to avoid the manner of application found improper, thus requiring further litigation.

And this subject -- the application of stare decisis and the principles of res judicata -- can get very complicated very quickly. Some definitions:

• stare decisis:
  
  
• res judicata:

Thanks. (caveat: Peruta may not be the best hypothetical to use below)

So in real life (and trying to keep it simple) ...... The decision does automatically apply to all the districts but the crux is that 2 cases being exactly the same are slim.

Therefore, the 2 parties must evaluate how significant those differences are between Peruta and this new hypothetical case when determining whether to fight it out or not. If the decision is to fight it out, the judge in the new case then applies stare decisis and res judicate and either kills the new case or allows it to proceed.

 

[danez71]

BRIEF OF AMICUS CURIAE CENTER FOR

CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONERS
(they've done quite a few over the years)


http://michellawyers.com/wp-content...e-Center-for-Constitutional-Jurisprudence.pdf

This one is more focused on the history of specifically carrying outside the home.

I found several things interesting in this one


Tying it to Heller, McDonald, and Moore v Madigan

The court below ignored this history. Instead, the


en banc panel of the Ninth Circuit upheld a state

scheme that allows local sheriffs to prohibit ordinary,

law-abiding citizens from carrying arms for self-defense

outside the home. Peruta v. County of San Diego,


824 F.3d 919, 924 (9th Cir. 2016). This view departs

from this Court’s rulings in Heller and McDonald

and further conflicts with ruling of the Seventh

Circuit in Moore v. Madigan, supra. There, the court

noted that “one doesn’t have to be a historian to realize


that a right to keep and bear arms for personal

self-defense in the eighteenth century could not rationally

have been limited to the home.” Id. at 936.

Going back to a case in 1822 which was cited in Heller

In the first published appellate decision on the


right to arms, Bliss v. Commonwealth, an 1822 opinion

of the Kentucky Court of Appeals (then the state’s

highest court), the court struck down a state statute


that prohibited the concealed carrying of weapons.

The court held that the prohibition violated the “right

of the citizens to bear arms in defense of themselves

and the state” as recognized in the Kentucky Constitution.

5 12 Ky. (2 Litt.) 90, 91, 93 (1822), cited in Heller,


554 U.S. at 585 n.9. The Kentucky court viewed

the right to bear arms as a categorical right to carry

personal weapons in any manner the owner deemed

appropriate, whether concealed or openly. Subsequently,

Kentucky amended its constitution to give

the legislature the authority to ban concealed carry,

while still allowing citizens to carry firearms openly

for self-defense.6

Going back to 1846 (and then cited in an 1850 case) Georgia had banned open carry stating it was ok to do so because they were able to 'carry certain weapons secretly'. That law was struck down. CA has made a similar rationale and currently, generally*, bans all forms of open carry.

* generally - see "*" below

In Nunn v. State, 1 Ga. 243 (1846), the Georgia


Supreme Court struck down a general ban on openly

carrying handguns in public for protection. The court

held that the provisions of the statute banning “carrying

certain weapons secretly” was valid because it did

not “deprive the citizen of his natural right of self-defense,


or of his constitutional right to keep and bear

arms.” Id. at 251. This Court cited State v. Chandler,


5 La. Ann. 489 (1850) for the proposition that the Second

Amendment guarantees a right to carry, subject

to the legislature’s determination of whether the carry

is to be open or concealed. Heller, 554 U.S. at 629. To

the exact same effect is Andrews v. State, where the


Tennessee Supreme Court equated the state constitutional

provision to the Second Amendment, and struck

down a law against carrying handguns “publicly or

privately, without regard to time or place, or circumstances.”

50 Tenn. 165, 187 (1871).

* This one is relevant because CA had also pointed out the 1000s of sq miles were open carry is allowed.... it just so happens to be when hunting and in non populated areas; you know, where no one lives. ;-)

The Idaho Supreme Court issued a similar ruling,

holding that a state law that prohibited the carrying

of handguns in cities, towns, or villages violated the

Idaho Constitution and the Second Amendment. In re

Brickey, 8 Idaho 597, 599 (1902). The legislature could


regulate the exercise of the right by requiring that defensive

handguns be carried openly, but it had “no


power to prohibit a citizen from bearing arms in any

portion of the state of Idaho,” whether inside a city or


not.

Lets not forget about Dred Scott....

I have said before that applying the BOR to the states isn't a new thing. I had even noted Dred Scott.... and was met with stern doubt/questioning/dismissal by Mod.

I feel a bit of redemption that these Constitutional scholars/lawyers also noted Dred Scott in this BOR 2A case.

In the midst of these decisions, this Court specifically


recognized the fundamental right of citizens “to

keep and carry arms wherever they went.” Dredd

Scott v. Sandford, 60 U.S. 393, 417 (1856) (emphasis

added). Of course the irony of this Court’s reasoning

in Dredd Scott was that it relied on the recognition of

this right to justify its erroneous conclusion that African-


Americans are not worthy of citizenship. The

recognition of citizenship inevitably leads to the recognition

of the right to keep and bear arms for self-defense.

As the Supreme Court of Rhode Island recently

noted: “One does not need to be an expert in American


history to understand the fault inherent in a gun-permitting

system that would allow a licensing body carte

blanche authority to decide who is worthy of carrying

a concealed weapon.” Mosby v. Devine, 851 A.2d 1031,


1047 (R.I. 2004).

The complete passage from Dread Scott case that was referenced above..

For if they [African-Americans] were so received, and entitled to tne privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they [the slave States] considered necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them full liberty of speech in public and in private upon all subjects upon which its [a slave State's] own citizens might speak; to hold public meetings upon public affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State

 

[danez71]

Heres a good summary on the Peruta case thus far.

http://harvardlawreview.org/2017/01/peruta-v-county-of-san-diego/

 

[old lady new shooter]

CA had also pointed out the 1000s of sq miles were open carry is allowed.... it just so happens to be when hunting and in non populated areas; you know, where no one lives. ;-)

When I watched the video of the en banc hearing the most stupid argument of the state IMO was when their lawyer said a person can be armed in their home or business, or any other private location whose owner gives permission, just not going between those locations, implying that a person doesn't need to be armed while in transit. Hello? Getting in or especially out of one's car is a moment of greatly heightened vulnerability, why should a person be handicapped in defending him- or herself in that situation?

 

[CoalTrain49]

When I watched the video of the en banc hearing the most stupid argument of the state IMO was when their lawyer said a person can be armed in their home or business, or any other private location whose owner gives permission, just not going between those locations, implying that a person doesn't need to be armed while in transit. Hello? Getting in or especially out of one's car is a moment of greatly heightened vulnerability, why should a person be handicapped in defending him- or herself in that situation?

They shouldn't and in most states they aren't. CA and 7 other states that attempt to regulate concealed carry to the point of not issuing any permits are about to experience the same thing that Chicago and DC experienced. There has to be some method that a law abiding person can be licensed to carry. I believe that will be the next case the SC will consider. I would like to get some odds on that one for a payday.

 

[danez71]

They shouldn't and in most states they aren't. CA and 7 other states that attempt to regulate concealed carry to the point of not issuing any permits are about to experience the same thing that Chicago and DC experienced. There has to be some method that a law abiding person can be licensed to carry. I believe that will be the next case the SC will consider. I would like to get some odds on that one for a payday.

Well.... thats basically Peruta.

26 state AG's and 9 Governors want SCOTUS to take it.

Sure, CA has a permit process but it's with an undefined arbitrary 'with good cause' at the sole discretion of the local sheriff,,,,, which denied the vast majority of time.



The Harvard link above is kind of long but is worth reading to whomever wants to understand the reasoning of both sides. It's not biased political fake news lol

 

[gun_with_a_view]

There has to be some method that a law abiding person can be licensed to carry

To the contrary: http://www.breitbart.com/national-s...eans-no-gun-registry-required-for-open-carry/

Progressive Puerto Rico?
http://www.guns.com/2015/06/22/judges-ruling-threatens-upheaval-of-puerto-rico-gun-laws/

 

[CoalTrain49]

Exactly to my point. CA along with 7 other states are out of step with shall issue. The trend is, as the link pointed out, constitutional carry. The anti-gunners in states that still have may issue will have to eventually choose between shall issue or permitless carry (CC).

The biggest problem with permits is administrative costs. Many states are now realizing that there really isn't anything to gain with permits and only added costs to the taxpayer. If lawmakers are truly trying to get the biggest bang for their administrative buck they will just let this idea of permits go.

Some states let the local LE agency handle the paperwork for a permit. In my county the sheriff's office does the background checks, fingerprinting and issues the permit. They are so understaffed (rural county) that volunteers have to do this work, regular clerical staff do more important things. They probably wish there wasn't a state law that required permits for concealed carry. If full time employees had to do the administrative work the fees wouldn't even come close to covering the cost. These employees are all union with state pensions. You figure out if $55 would cover the adm costs if the average county employee cost the taxpayer $40/hr. That's just employee costs. Counties and states also have equipment and maintenance costs.

The county I used to work for just paid out 14 million dollars in a suit by a citizen because of negligent actions by a deputy sheriff. Their annual budget is only 230 million.

 

[gun_with_a_view]

Or, you could do it this way:

<<<The Florida Supreme Court on Thursday upheld state restrictions on openly carrying a firearm, affirming the law does not violate citizens’ Second Amendment rights. Florida allows individuals to carry firearms in public, but requires that they conceal the weapon. State law also requires gun owners have a so-called “carry-conceal” license before they take a firearm out in public>>>

https://www.courthousenews.com/florida-supreme-court-upholds-state-open-carry-ban/

 

[old lady new shooter]

Exactly to my point. CA along with 7 other states are out of step with shall issue. The trend is, as the link pointed out, constitutional carry. The anti-gunners in states that still have may issue will have to eventually choose between shall issue or permitless carry (CC).

The biggest problem with permits is administrative costs. Many states are now realizing that there really isn't anything to gain with permits and only added costs to the taxpayer. If lawmakers are truly trying to get the biggest bang for their administrative buck they will just let this idea of permits go.

Some states let the local LE agency handle the paperwork for a permit. In my county the sheriff's office does the background checks, fingerprinting and issues the permit. They are so understaffed (rural county) that volunteers have to do this work, regular clerical staff do more important things. They probably wish there wasn't a state law that required permits for concealed carry. If full time employees had to do the administrative work the fees wouldn't even come close to covering the cost. These employees are all union with state pensions. You figure out if $55 would cover the adm costs if the average county employee cost the taxpayer $40/hr. That's just employee costs. Counties and states also have equipment and maintenance costs.

The county I used to work for just paid out 14 million dollars in a suit by a citizen because of negligent actions by a deputy sheriff. Their annual budget is only 230 million.

This is California, where they now voted to require background checks to purchase ammo.

 

[CoalTrain49]

Or, you could do it this way:

<<<The Florida Supreme Court on Thursday upheld state restrictions on openly carrying a firearm, affirming the law does not violate citizens’ Second Amendment rights. Florida allows individuals to carry firearms in public, but requires that they conceal the weapon. State law also requires gun owners have a so-called “carry-conceal” license before they take a firearm out in public>>>

https://www.courthousenews.com/florida-supreme-court-upholds-state-open-carry-ban/

I don't see anything wrong with that, in a legal context, if FL is indeed a shall issue state. In WA open carry is protected by the state constitution. In order to deny that right the legislature would have to change our constitution. Something like what CA did to open carry wouldn't get past the WA state supreme court. It would never make it to federal court as there is no federal code that restricts open carry of firearms unless they fall under NFA, GCA or Nat'l Parks adm.

Please correct me if I'm wrong.