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Old April 3, 2014, 09:56 AM   #276
speedrrracer
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Quote:
Originally Posted by Metal God
Right about now I'm wishing Peruta never said they're ok with the AG intervening . She makes a good argument and I hope the court lets Peruta reply to there AGs reply . ( why does she get to reply I might ask ) now Peruta needs to point out each and every time the AG has refused to be apart of a lawsuit that was similar and why she felt no need to be apart of those .
Don't sweat the AG being granted intervenor status. All she'll do is ask for en banc, which has essentially already been done. In Prieto, the Sheriff has asked for en banc (and he has the standing to do so). The Prieto decision is nothing but, "See Peruta" , so we will see a vote regarding en banc, and Peruta will be hanging in the balance if en banc is granted.

Also, Chuck Michel said the police chief in Baker (which is the same, just a "see Peruta" decision) will also ask for en banc. Mr Michel also said the city of San Francisco will disobey Peruta, and fight it in court, up to and including asking for en banc. There are also a half-dozen or so cases in the 9th which have been stayed pending Peruta, and any of them could ask for en banc also.

It's going to happen, and that's not my opinion, it's the opinion of Mr Michel.

Quote:
Originally Posted by 62ColtNavy
Since such panels are chosen randomly (except for the Chief Justice), there is a definite risk that that could occur--and Peruta would be in a weak position on any cert petition because the split would have disappeared.
Not disappeared -- there's still the 7th.
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Old April 4, 2014, 10:29 AM   #277
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OK, Drake is now listed as "distributed for conference of April 18th":

http://www.supremecourt.gov/Search.a...les/13-827.htm

So we seem to have a race here: various judges of the 9th Circus plus the state AG and such want to destroy the Peruta holding before the Supremes decide whether or not to hear Drake.

What can they do to damage Peruta before April 18th?

I realize that the Supremes might stall on deciding whether or not to hear Drake for what, a week or two more?

Who else believes (as I do) that once the Supremes decide to hear Drake, assuming they do of course, it will basically "moot" the remaining steps at en banc in Peruta? In other words, we've either got five votes for Drake on the merits or we don't?
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Old April 4, 2014, 11:15 AM   #278
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Quote:
Originally Posted by Jim March
What can they do to damage Peruta before April 18th?
Nothing, imo.

Quote:
Who else believes (as I do) that once the Supremes decide to hear Drake, assuming they do of course, it will basically "moot" the remaining steps at en banc in Peruta?
I think we can agree a SCOTUS decision in Drake is likely to address Peruta, but SCOTUS isn't bound by anything to do so.
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Old April 4, 2014, 12:53 PM   #279
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Well...in theory the 9th could rush Peruta into en banc and put it on hold before the 18th. They can't come to a new decision before April 18th, right?

The US Supreme Court is in a pickle if they don't decide to hear Drake because it leaves a circuit split (and remember, Moore out of the 7th Circuit is also a pro-carry split with the anti-carry 2nd/3rd/etc. circuits). And there's no guarantee another case will come along. Peruta might not be appealed (which would leave the 9th as shall-issue-required) and then the only circuit that still has any may-issue states in it is the 1st with MA, or the DC Circuit if we can ever get a ruling on THAT carry case! So assuming they don't want to leave a permanent or at least long-term circuit split, the only remaining way to make sure that doesn't happen is by agreeing to hear Drake...
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Old April 4, 2014, 08:47 PM   #280
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There is no way the 9th will make a ruling in Peruta, other than to grant intervention, before April 18.
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Old April 6, 2014, 11:22 PM   #281
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Moore does NOT create a split. Moore says that carry must be allowed--but doesn't direct the manner in which carry will be allowed. Remember, Illinois had no carry. Under the Moore decision, Illinois was free to adopt a "may issue" carry law, but voted instead to adopt a shall issue law, avoiding all of the issues raised in the may issue states. By contrast, California DOES have a carry law, as do all of the east coast circuits--all are "may issue jurisdictions. Kachalsky, Peruta, Drake and Woollard all address the constitutionality of a "may issue" law. Moore is therefore inapposite, although some of its language is certainly helpful--which is why Moore has been described as more or less of a "partial" split, because it implies that the average citizen should be allowed to carry, a right denied to citizens on the northern eastern seaboard.

I am no expert on supreme court procedure, but I think it is possible under the rules that Drake may be "held" until Peruta is done, or that it may accept Drake and then add Peruta when it comes up--as right now seems inevitable. The court can always change its mind later, and decide that cert was "improvidently granted" (if for example, Peruta gets reversed en banc). Further, if Drake is accepted, I would guess that the probability of en banc is greatly diminished, since the California AG has stated her intent (if allowed to intervene which is likely) to pursue SCOTUS review. However, he time to file for cert does not start, at the earliest, until mid to late May.

Last edited by 62coltnavy; April 6, 2014 at 11:41 PM.
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Old April 7, 2014, 10:05 AM   #282
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Quote:
Originally Posted by 62coltnavy
Kachalsky, Peruta, Drake and Woollard all address the constitutionality of a "may issue" law.
I don't see where in the Peruta opinion the constitutionality of a may issue law is addressed.

In fact, Peruta counsel were very careful to consistently claim they were NOT challenging the law, and in fact no laws were struck down, only a sheriff's policy.

The Peruta opinion says (I've read it a coupla times now...IANAL, but the verbiage in the opinion seems pretty darn clear) -- because CA had outlawed open carry, restricting concealed carry (and this is the important point) via policy (again, not law, policy) to the point where Joe Average cannot get a LTC for self-defense (again, a big point, the whole decision is basically that Sheriff Gore must accept "self-defense" as good cause, not that requiring good cause is unconstitutional), is unconstitutional.

Maybe they're still inapposite, but to claim that Peruta "address(es) the constitutionality of a 'may issue' law" seems very inaccurate to me.
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Old April 7, 2014, 11:19 AM   #283
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The Peruta ruling is kind of a simple work around for what otherwise is an unconstitutional law. Because really, lawful use of a CCW gun is ALWAYS about self-defense or defense of another)

Even if the license is issued to, say, a jeweler for business purposes, his use of that licensed gun BETTER be tied to self-defense. The jewels may make him a target, but it is his life that he is defending.

So the statute as written, with the newly required interpretation is a little ackward and outdated, but can function constitutionally if applied according to Peruta. It is the least disruptive solution, that stops short of striking lines in the law.
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Old April 7, 2014, 11:22 PM   #284
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"I don't see where in the Peruta opinion the constitutionality of a may issue law is addressed."

You are correct; what was held to be violative of the Second Amendment was the interpretation by the Sheriff that "good cause" required something "more" than merely a desire for self-defense, and that as a result the vast majority of citizens were prohibited from bearing arms. It was a nifty end run. One could say the same for the east coast cases, although the approach was different. Now things get murky: when Kamala Harris moved to intervene, one of her primary arguments is that the Peruta ruling does implicate the constitutionality of the state statute....which is what the dissent in Peruta argues as well. (In many ways, her motion to intervene and for en banc review parrots/regurgitates the dissenting opinion, an opinion that focused solely on the CCW law, and concluding, based on a long history of laws limiting or banning concealed carry, the CCW law was constitutionally sound. In isolation, the dissenter makes a good argument, but where his argument falters is when one understands that California does not allow open carry in urban areas either.

By contrast, the majority looked expansively at the issue, recognizing that California does not permit open carry in any urban area--and that the "good cause" requirement acted as a de facto ban on the exercise of second amendment rights in urban areas of the sate, most of which issue in limited circumstances or essentially not at all. The majority recognized what all of us believe--that the right to bear arms is a general right belonging to one and all, and cannot be constitutionally limited to a select few. This is indeed the key battle--recognition of a right to carry by the average citizen, either openly or concealed.
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Old April 8, 2014, 07:05 AM   #285
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The dissent's argument did the old trick of saying that the state law should be challenged instead, of course the state in earlier stages says the county sheriff has the discretion to issue, so don't bother us. Everyone points the finger at each other and if the state law were challenged you know the dissent would say that the sheriff should be challenged. Shell game at its best. Glad O'Scannilain didn't fall for the "straw man arguments".
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Old April 8, 2014, 09:23 AM   #286
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Does the state law have the words MAY issue in it ? Is there a sheriff or county in CA that treats that as a shall issue ? It seems odd to me that there's not at least a couple sheriffs out there willing to issue CCWs .

I've been working on my CCW permits for as many states as I can get . I will not name the state but the first sheriff I called in that state said he would not issue permits to out of state residence . I just kept calling around until I found one that would and now I'm legal to carry in that state . CA must have a few gun friendly sheriffs .

The reason I ask is because if the law allows for CCW or open carry . There is nothing in the law to challenge . Therefore the only thing to challenge is each sheriffs ability to say no you can't carry because I don't think you need too . That is a whole lot of power for one man to have .
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Old April 8, 2014, 09:51 AM   #287
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I don't know off hand if the actual words "may issue" are in the statute, but if there's wording like "shows good cause" or "justifiable need", then it's discretionary may-issue. Many CA sheriffs say that self-defense is "good cause", others won't accept that without police reports of attacks, exc.

Handgunlaw.us is a good resource for finding states that issue to non-residents. If you just want to cover more states then UT,FL, and AZ are good ones.
I'm thinking you called either Oregon, Nevada, or PA?
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Old April 8, 2014, 10:05 AM   #288
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Quote:
Originally Posted by Metal god
Does the state law have the words MAY issue in it ?
I believe it does:

Quote:
12050. (a) (1) (A) The sheriff of a county, upon proof that the person applying is of good moral character, that good cause exists for the issuance, and that the person applying satisfies any one of the conditions specified in subparagraph (D) and has completed a course of training as described in subparagraph (E), may issue to that person a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person in either one of the following formats:

(i) A license to carry concealed a pistol, revolver, or other firearm capable of being concealed upon the person.

[etc]

(B) The chief or other head of a municipal police department of any city or city and county, upon proof that the person applying is of good moral character, that good cause exists for the issuance, and that the person applying is a resident of that city and has completed a course of training as described in subparagraph (E), may issue to that person a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person in either one of the following formats:
emphasis mine

Quote:
Is there a sheriff or county in CA that treats that as a shall issue ?
Yes, there are a small number of sheriffs in very rural counties which are and have always been virtual shall-issue, and since Peruta, I think there are now at least two major counties which have gone down that path (OC and Ventura, possibly more).
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Old April 8, 2014, 10:37 AM   #289
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What many people don't realize is that most sheriffs in CA are essentially shall-issue. It's the few sheriffs from the densely populated, mostly coastal ares that are prohibitive. But those areas comprise the bulk of the population. I don't know whether it factored into the Peruta ruling, but it couldn't have hurt to see most sheriffs already modeling exactly what the plaintiffs were proposing.
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Old April 8, 2014, 11:19 AM   #290
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Thanks guys . I have to tell ya . I'm now having a hard time disagreeing with the dissent when it comes to them saying the law should be what Peruta is going after . If the law allows a sheriff to choose who gets the permit . It's the law thats the problem not the sheriff .

Here is where it gets murky and where we can loose . It's my understanding that there is no law on the books that states you can not open carry in CA . That to me seems to make it OK to have the "just cause" aspect of the law . I believe the AG brought this very thing up in her motion to interrupt . How ever there are areas in CA that it is illegal to discharge a firearm . Because of this there is no reason to open carry a firearm if you can't fire it in those areas . Making it a nuisance to open carry there by making it against the law to open carry in most if not all urban areas .

I keep hearing you can't restrict both CC and OC . If technically it's not against the law to OC . Why can't the state restrict CC .

I'm sorry if this has been all hashed out earlier in this thread . I have not read every post in it . If it's easier to give me a post # to go back to or a page please do thanks
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Old April 8, 2014, 01:11 PM   #291
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Quote:
It's my understanding that there is no law on the books that states you can not open carry in CA .
That would be almost entirely incorrect. Open carry has been illegal in CA for many years, except for a few narrow exceptions.

Penal Code 25850(a):

“A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.”3

and just in case you think an unloaded firearm makes a great club:

PENAL CODE
SECTION 26350. (a) (1) A person is guilty of openly carrying an unloaded
handgun when that person carries upon his or her person an exposed
and unloaded handgun outside a vehicle while in or on any of the
following: [etc]
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Old April 8, 2014, 02:33 PM   #292
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And, to go with the parts speedrrracer posted, it's illegal to carry concealed (loaded or not) without the License To Carry
Quote:
25400. (a) A person is guilty of carrying a concealed firearm when the person does any of the following:

(1) Carries concealed within any vehicle that is under the person’s control or direction any pistol, revolver, or other firearm capable of being concealed upon the person.

(2) Carries concealed upon the person any pistol, revolver, or other firearm capable of being concealed upon the person.

(3) Causes to be carried concealed within any vehicle in which the person is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person.
(again, with a very few exceptions). The combination of 'no concealed carry without a license' and 'generally no open carry' was significant in the Court's reasoning.
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Old April 8, 2014, 03:42 PM   #293
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Thank you for correcting me . This case is as many of you have said . Much more clear for me on how the court came to the decision it did . The AG must be coming at this by using the sheer size of CA and trying to say the vast majority of CA is open carry do to it's size and I'm sure lop sided ratio of unincorporated areas as apposed to the incorporated city's and public place .
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Old April 11, 2014, 03:40 PM   #294
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In terms of total acreage, yes, the state of California is mostly unincorporated, and it is legal to carry in those areas unless specifically prohibited. However, the vast majority of the population lives in incorporated areas, the very places one would need protection from wild animals of the two-legged variety, and there's the rub. You can carry in the woods, but not in town, at least not without a CCW, whether openly or concealed, loaded or unloaded. Thus, except for licensed individuals, California cities are gigantic "Gun Free" zones (at least in theory if not in practice.)

I don't know if anyone has counted which counties are "shall issue" or "virtual shall issue," but as far as I know, most of the central valley and northern California from Sacramento north is shall issue--i.e., where self-defense =good cause. The whole Bay Area and the whole LA area is a CCW waste land (except for those visitors who bring their CCWs and handguns with them--at least the permits are valid state-wide). SF is a no issue zone, bans the sale of hollow points, and requires all firearms to be kept unloaded and under lock and key if not in one's immediate possession. (There is a thread here Jackson v. SF that talks about these latter requirements, that were upheld at the district court level despite Heller.) All of the counties around it are slightly more liberal with issuance, but not so's you'd notice. And needless to say, these heavily populated and largely democratic areas dominate the state legislature and the anti-gun laws that are passed there (not quite a 2/3 supermajority.) Which is why Peruta will be fought to the very end.
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Old May 5, 2014, 10:48 AM   #295
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What's this all about ???

Quote:
Filed order (DIARMUID F. O'SCANNLAIN, SIDNEY R. THOMAS and CONSUELO M. CALLAHAN) Appellee William D. Gore is ordered to notify this Court in writing within fourteen days of the date of this order of his position on the pending motions to intervene or that he takes no position. Appellee William D. Gore is further ordered to respond within fourteen days of the date of this order to the suggestion that this case is moot. See Opp’n to Pet. for Reh’g En Banc 16, Richards v. Prieto, No. 11-16255 (“Even were Peruta vacated tomorrow, neither this Court nor the state could do anything to keep Gore from printing permits to all otherwise-qualified comers. The Peruta dispute is moot.”). He shall explain any change in his policy that could affect this Court’s jurisdiction over this case. [9078973] (WL)
If you apply for a CCW here in San Diego and use self defense as your reason . You get a letter back stating that is not good cause but he will hold your app until Peruta is final . He will then proses them in the order they were received .

So for me I'm not sure what moot means . Gore had a press release stating he did not need any clarification as to how to interpret the ruling so what are they asking of him ? The case is in no way moot to him . It is the very thing he is waiting for in order to change his issuing policy . The letter is clear , I do not meet the requierments of good cause at this time . Sounds to me he has not changed anything therefore the case in not moot in any way
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Old May 5, 2014, 02:49 PM   #296
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Gore is trying to have it both ways. He's telling the courts it's all settled, he's telling applicants it isn't. I'd call him a rat but it would be an insult to fine rodents.



The court is calling BS and forcing him to answer under oath what he's really doing. If he flubs this he could face a federal prison.
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Old May 5, 2014, 03:03 PM   #297
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The court is calling BS and forcing him to answer under oath what he's really doing. If he flubs this he could face a federal prison.
That seem a bit of a stretch. How might that happen?
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Old May 5, 2014, 03:35 PM   #298
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Perjury. If he tells the court he's honoring the Peruta decision now, a whole bunch of applicants have paper trails proving otherwise.

If he says Peruta still needs to "go active" before he'll honor it then he is, in effect, appealing it kinda/sorta and it appears he doesn't want to publicly do that. This is likely taking a significant PR toll on Sheriff Gore personally.
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Old May 5, 2014, 03:51 PM   #299
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I don't recall where Gore told the courts that all is settled. Please post a link, thanks.

IIRC Gore's attorney simply said, "I have been instructed by my client not to do anything else on this case" and that was the last we heard from the Gore camp.

Then, Gura said something to the effect that Peruta was moot, and so the court is trying to figure out how that's possible. Only Gore can make it moot, by complying with self-defense as good cause. The court is asking him if that's what he's doing, he'll say, "No" (if he doesn't want to perjure himself), and the 9th will be "Oh, it ain't moot".

Why Gura did that I have no idea. A law student in another forum suggested it somehow enhanced Drake's chances for cert (apparently not enough), which I didn't understand, either.
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Old May 5, 2014, 04:00 PM   #300
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The court, not Gura, and not Gore will decide if the case is moot. Unless Gore certifies to the court that he is presently abiding by the ruling, it is not moot. It may not be moot even then.

With ample documentation that he is withholding the processing of applications with self-defense as good cause, he wouldn't dare tell the court otherwise.
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