Peruta v. San Diego

[CowTowner]

It could go the other way. The 2nd Amendment (as well as the constitutions of many states) only mentions a right to bear arms, not the mode of bearing.

If memory serves, California's constitution does not include a RKBA. Only a right to defend one's self.
Since this is a Federal Court, does this have any effect on arguments for either side?

[JimDandy]

No, California law goes to a California court, Federal law to a federal court. When California conflicts with Federal law, it's Federal law (supremacy clause) and thus a Federal court.

What CAN happen (as I understand it) is someone can challenge Federal AND State law at the same time in which case it goes to Federal court, and the Federal judge MIGHT ask the State court to "certify" (answer) the question of State Law for the Federal Judge to use and/or ignore in the ruling.

[Librarian]

Peruta filed in Federal court 10/29/09 alleging a Second Amendment violation - http://michellawyers.com/wp-content/...-Complaint.pdf

There is no California law being challenged, but the San Diego Sheriff's policies in enforcing the CCW law.

[62coltnavy]

Actually, JimDandy, although you are mostly right, a couple of statements are wrong. A lawsuit challenging a California statute as violation the Federal Constitution may be brought in either state court or federal court. This is called "concurrent jurisdiction," where both courts are qualified to address the question. Second Amendment rights actions have been brought n the federal courts for two reasons: although now superseded by Heller and McDonald, the California Supreme Court was not friendly towards 2A rights, and second, an action initiated in federal court has a shorter procedural path to the Supreme Court. For example, a suit filed in state court has to be appealed to the state court of appeal, and then to the state supreme court before review in the SCOTUS may be sought. Filing in federal court has one appeal to the federal Circuit Court of Appeals, and then, absent an en banc as here, a request for review to the Supreme Court. Even then the process takes years.

[steve4102]

Looks like Orange County Sheriff Sandra Hutchins has already started the "may Issue" requirements due to the Peruta en banc hearing.

http://ocsd.org/about/info/services/ccw

[Aguila Blanca]

Holy Moses!

New applicants, and those applicants currently in process, will be required to [B]articulate their safety concerns[/] and provide supporting documentation in accordance with the Orange County Sheriff’s Department’s (OCSD) Policy 218. Each application will be evaluated individually based on the merits of the applicant’s good cause statement and the totality of their circumstances.

CCW Licenses issued under the previous Peruta standard of good cause are lawful and will not be recalled. Current licensees may be required to provide supplemental information and documentation in support of their good cause statement when they attempt to renew their CCW license. All renewal applications are subject to the legal standards at the time of renewal.

Prospective applicants are encouraged to attend their scheduled appointments and submit their CCW applications for consideration. Licenses issued after Thursday, March 26, 2015, are subject to the good cause requirement in OCSD Policy 218.

Please be aware the application process includes an interview, fingerprinting, background checks, residency verification, successful completion of firearms training, and the payment of all related fees. Applicants may also be required to pass a psychological examination as part of the CCW application process in accordance with California Penal Code Section 26190(f)(1).

That looks to me like eight reasons not to even consider living in California.

Gotta love that may issue nonsense.

[NY'er]

^^^

Considering that the requirement of simply showing an ID to vote is considered too onerous of a hurdle to exercise that fundamental Right, I'd say this represents eight separate un-Constitutional infringements to the fundamental RIGHT to keep and bear...

[Librarian]

Please be aware the application process includes an [2]interview, [3]fingerprinting, [4]background checks, [5]residency verification, [6]successful completion of firearms training, and the [7]payment of all related fees. Applicants may also be required to pass a [8]psychological examination as part of the CCW application process in accordance with California Penal Code Section 26190(f)(1).

Except for the interview, all of that is in the CA Penal Code.

There's no information that all of that gets better-behaved concealed gun carriers than no license required at all.

[Metal god]

Please be aware the application process includes an [2]interview, [3]fingerprinting, [4]background checks, [5]residency verification, [6]successful completion of firearms training, and the [7]payment of all related fees. Applicants may also be required to pass a [8]psychological examination as part of the CCW application process in accordance with California Penal Code Section 26190(f)(1).

It seems they left out the Partridge in a pear tree


Do we know when the panel will be picked ? or is there even an announcement for that ?

[62coltnavy]

I would assume that the panel has been picked already, but the members are not announced, AFAIK, until the oral argument or shortly before. The assignment of the panel is supposed to be random. The panel has to have time to read and digest the briefing that has already been filed (which is voluminous) prior to the June argument date (there is no new briefing here; the court has announced that it will rely on the briefing previously submitted). The only person we can guarantee will be on the panel is (now) Chief Justice Clarence Thomas, the dissenter in the original opinion, and also the dissenting justice in the decision to deny AG Harris motion to intervene. (And also the justice everyone suspects was the judge that sought sua sponte en banc review.)
Based on the political demographics of the current active bench, odds are the panel will have a majority of democrats, which, though not dispositive, is suggestive of a bias against affirmance. On the other hand, arguing for plaintiffs/appellants are Paul Clemens and Alan Gura, probably the two best Second Amendment attorneys in the nation right now.

[KyJim]

The only person we can guarantee will be on the panel is (now) Chief Justice Clarence Thomas, the dissenter in the original opinion, and also the dissenting justice in the decision to deny AG Harris motion to intervene. (And also the justice everyone suspects was the judge that sought sua sponte en banc review.)

I assume you mean Chief Judge Sydney Thomas, not Chief Justice Clarence Thomas.

[Metal god]

There is a whole lot of new reading material

http://www.ca9.uscourts.gov/content/..._id=0000000722

[Aguila Blanca]

Originally Posted by MetalGod

There is a whole lot of new reading material

Just ... WOW!

It would take me a month (at least) to wade through all those amicae.

[Tom Servo]

The Everytown brief does its best to look like scholarly research. Their thesis is that restrictions of the right to carry come from a "a seven-century Anglo-American tradition of restricting public carry in populated areas." The claim is that such restrictions don't violate Heller because of their longstanding nature.

(I'll skip the irony that slavery was a longstanding institution as well.)

For centuries, English law broadly prohibited anyone from carrying a dangerous weapon in public, beginning with the Statute of Northampton in 1328, and continuing after the English Bill of Rights of 1689. This tradition took hold in America in the 17th and 18th centuries, when several colonies enacted similar restrictions. And it carried into the century, when three distinct types of public-carry laws predominated: one primarily northern, one southern, and one western. The panel focused exclusively on the southern model, the most permissive of the three, which regulated only the manner of carry(open, not concealed) and was motivated largely by the ever-present fear of slave rebellions.

[Metal god]

Is there a 14th amendment argument here in the good cause aspects of this case . I/we citizens of San Diego are being treated different then the citizens of riverside county. San Diego does not allow self defense as good cause but Riverside does . Both have urban and rural areas . The urban/incorporated argument does not fly when comparing the two county's . Yet San Diego citizens are treated different then Riverside citizens . The carry argument either open or concealed should not be the issue . The issue should be are my 14th amendment rights being violated under the state law and scheme governing the the ability of all CA residents to carry a firearm

[Metal god]

The Court has set oral argument for Tuesday, June 16 at 3:30 PM.

[CowTowner]

So how does Judge Scullin's decision in D.C. regarding "good reason to fear injury to his or her person or property or has any other proper reason for
carrying a pistol" affect this case, if at all?

[Librarian]

There's an avenue to introduce that - generally called a "28j" motion, more formally "MOTION FOR LEAVE TO FILE NOTICE OF SUPPLEMENTAL AUTHORITY". (Aside - a lot of these things seem to be, in form, 'mother, may I?' but in fact include 'oh, here is the thing'.)

That might be informative, but as Wrenn is a decision from a District court rather than a Circuit Court of Appeals, it's hard to tell how influential it might be to 9th Circuit.

[maestro pistolero]

The DC decision striking "may issue" licensing is timely with regard to the Peruta en banc proceedings. Will the 9th circuit follow Scullin's reasoning? Perhaps unlikely. But it will not escape their attention and it absolutely merits a 28j letter as persuasive authority.

[62coltnavy]

I don't know how persuasive it will be. For one, Judge Scullin's determination as to the manner in which intermediate scrutiny is applied conflicts with the way it was applied in Jackson v. SF (and the concealed carry decisions in the 2d, 3d, and 4th Circuits), so will be largely ignored (even if he is right), and as to the other part, he relies quite a bit on the original Peruta decision that has now been decertified and should not have been cited in his decision. So this too will count no more than that there are at least three judges who think that the 2A really means what it says, and that the State cannot demand that a citizen have a better reason than the average citizen to carry a firearm in public. Finally, I suspect that the City will try to do something to stay his decision pending an interim appeal, since it does change the status quo and requires the City to issue CCWs for all otherwise qualified applicants.

[maestro pistolero]

9th Circuit Court of Appeals, 3:30 pm PST

https://www.youtube.com/user/9thcirc/videos

[Metal god]

GAME ON

http://www.ca9.uscourts.gov/media/vi...vid=0000007833

[csmsss]

So far, so bad. Some of these judges are, well...absolute morons.

[tyme]

These judges are being frighteningly dogmatic.

They really think there's not enough evidence on whether licensed concealed carry might meaningfully increase crime?

And now they're trying to argue open carry with ammunition out of the gun is sufficient to satisfy intermediate scrutiny.

And there's some significant "risk" from people carrying concealed weapons? What do they think concealed carry laws do? Allow people to wave guns around? I don't think anyone would be able to (successfully) challenge any laws requiring holster carry of one kind or another, if the danger of unsecured carry is what they're concerned about.

"Carrying outside the home" is not the same as "carrying in public in an urban setting" according to the government. Is this person a moron? Does he have any concept of how concealed carry works? Oh, it's okay that you can only carry on private property that allows you to, because you can have the gun locked in a case on your way there?

My god, the mental gymnastics here are mind-boggling.

Now he's arguing rational basis for concealed carry (apparently ignoring the unavailability of open carry) restrictions, at least in urban areas.

And now he's confusing the right to carry firearms with the right to actually use them, for hunting deer or shooting pigeons within city limits. Compares restrictions on hunting with restrictions on smoking, to demonstrate that of course you can heavily restrict guns, just like we did with cigarettes. Big laughs all around. Nobody seems to catch that it's not illegal to carry cigarettes anywhere.

Not one mention by anyone about how concealed carry is allowed just about everywhere else in the United States.

Clements and Gura. They love drawing parallels, which I think are lost on the court, to other rights. Gura I think suggested that by the State's arguments, 4th amendment rights could be only granted to citizens who have an extreme need for privacy.

And now rebuttal, Clements points out that the open carry ban applies both to incorporated areas and prohibited areas in unincorporated areas, which is basically everywhere near streets, homes, businesses, so it's not a small portion of the places that someone might go, which is what the State was arguing (the state went so far as to say, metaphorically but completely ridiculously, that 99% of places someone might go outside of urban areas allow open carry, and only 1% are prohibited).

Gura closed with some case law points on other circuits, and pointed out that even if for the sake of argument gun carry were highly dangerous, that policy decision is taken away from the States by the 2nd amendment.

That's a very sketchy summary, and the live feed was glitching for me. The video is or will be up soon on the 9th circuit's youtube channel.

[Armed_Chicagoan]

The video is here: https://www.youtube.com/watch?v=gaMuP2qLy04

Starts a little after the 8 minute mark.