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Old February 21, 2014, 01:25 PM   #151
esqappellate
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I don't know enough about california law on this. Does Cal. law permit open carry of such weapons? If so, then the ban on concealed carry is probably constitutional. But on you larger point, yes, "arms" include other things other than just firearms.
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Old February 21, 2014, 01:40 PM   #152
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Some yes with extremely narrow limits (like knife worn at the waist in a sheath) others not at all. Many weapons are expressly prohibited in the state. CPC 19910-22910 Then we have the unrecognizable, wallet, cane gun prohibitions in addition to a host of assault weapon laws.

Edit to add: For a very narrow set, they are not allowed for general public use but you can get permitted as a Security Guard and then you are limited to carry on the job and portal to portal.
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Old February 21, 2014, 01:42 PM   #153
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Quote:
Originally Posted by SHR970
...Further, even under lesser levels of scrutiny, doesn't this open the door pretty wide to have various "prohibited weapons" statutes stricken as historically (O'Scannlain seriously went there in deference to history) there were generally no prohibitions on the types of weapons one could carry until fairly contemporary times?
None of that was in front of the court in Peruta, and none of that would be addressed if Peruta goes to the Supreme Court.
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Old February 21, 2014, 01:44 PM   #154
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Agreed. And it would be best not to extend Peruta right now.
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Old February 21, 2014, 01:54 PM   #155
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None of that was in front of the court in Peruta, and none of that would be addressed if Peruta goes to the Supreme Court.
I understand that; hence my question leading with "Doesn't that open the door". I would think that if this decision is uncontested based on what the contingent of lawyers here are saying; as a standing precedent discussing arms, we would then be able to use it to attack and overturn a host of laws and / or force substantial modification. Even though this case is about permitting of guns, the Majority decision clearly states ARMS repeatedly. Not all arms are guns so as standing precedent doesn't this wording open the door wide?
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Old February 21, 2014, 02:18 PM   #156
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Quote:
Originally Posted by SHR970
I understand that; hence my question leading with "Doesn't that open the door"....
We're not going to go there. It's too speculative.
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Old February 21, 2014, 03:26 PM   #157
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We'd still have a something of a hodgepodge of county-by-county requirements related to training, insurance, psychological evaluations, etc., to deal with. Some of these will be vulnerable to attack as exceeding requirements permissible under state law as well as on constitutional grounds.

But discretionary good cause has been taken off the table. Furthermore, Judge O'Scannlain's decision is clear and unequivocal that the rights described in the Second Amendment includes a right for ordinary people to bear arms outside the home for personal defense.
I have to make this clear: the counties are doing all kinds of other crap such as illegal requirements, delays WAY past 90 days and more all because the "may issue" thing enables it. Basically, even if everything else they do is black-letter illegal (and some counties come damned close!) fighting it won't help because you'll "win" on each and every other point but then "whoops, you don't have good cause" and you're screwed while they stick their tongues out at you.

Follow?

With "may issue/good cause" off the table we can then fight back on all the other crap - the citizenship requirement in Tehama County that has been flatly illegal since 1972, the various games where you get buck-passed from sheriff to chief and back and forth in various ways, the bond requirement in Alameda County, all that junk.

We don't have to take it anymore.
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Old February 21, 2014, 04:44 PM   #158
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Quote:
Originally Posted by SHR970
we would then be able to use it to attack and overturn a host of laws and / or force substantial modification.
I think that's skipping a step. First you have to get something so prohibited classified as an "arm" THEN you can use Peruta (in the 9th as it's currently ruled) to get or force some sort of method to carry it.

There are two "tests" that I know of. The older one from United States v. Miller 307 US 174 said:

Quote:
Originally Posted by MR. JUSTICE McREYNOLDS
With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
Quote:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.
Then in Heller the Supreme Court, without actually repudiating Miller (as far as I can tell) fine-tuned the "militia purpose" to:
Quote:
Originally Posted by Justice Scalia
We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes,
At least one scholar/lawyer has suggested that should include some version of "or would be so, if not banned."

So if you want Peruta to extend to a KA-Bar, or an M9, you'd probably first have to establish the military still uses them- apparently more problematic and disputed than you would think- and that without the ban they would be in common use for a lawful purpose - Probably much easier than one would think because of the same disputation and the source of support for them- THEN convince the court that the ban is the only reason they're not in common use and the protection should be extended to those items not commonly used only because of a ban that would be unconstitutional to apply today if they were in common use in a cause/effect chicken/egg type of game.

The people who do the legal thing for a living can correct anything I got wrong, but having watched this go on for a bit, it's all a step-by-step meticulous process where almost nothing is a gimme. They'll deny a weapon is "arms" and so not protected by the 2A if that gets it off the streets.

Last edited by Frank Ettin; February 21, 2014 at 04:56 PM. Reason: Deleted off-topic material
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Old February 21, 2014, 06:19 PM   #159
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In a nation where civilian arms have always followed or mirrored military arms, there should be little distinction between common small arms in civilian vs military bearable small arms.
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Old February 21, 2014, 07:14 PM   #160
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San Diego Sheriff says SD will not appeal Peruta.

A judge at the 9th Circuit could still request a rehearing.
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Old February 21, 2014, 07:48 PM   #161
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Here is the press release that librarian is taking his information from:
Attached Files
File Type: pdf Gore Press Release.pdf (108.5 KB, 39 views)
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Old February 21, 2014, 07:50 PM   #162
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Indeed-San Diego has thrown in the towel!

http://apps.sdsheriff.net/press/Defa...c-4e38b4e212e1
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Old February 21, 2014, 08:17 PM   #163
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This is what I figured would happen. What is the likelihood that one of the judges will do something about it?
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Old February 21, 2014, 08:20 PM   #164
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Not over yet. General Order 5.8 of the 9th Circuit can still be involved by a judge acting sua sponte:

b. Sua Sponte Calls
If no petition for rehearing en banc before the full court is filed, any judge may, within seven days after the date such petition was due, request a vote on whether the case should be reheard by the full court. This request shall be accompanied by a memorandum in support of full court consideration. Thereafter, the provisions of this chapter relating to petitions for rehearing en banc of three-judge panel cases shall apply.
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Old February 21, 2014, 08:37 PM   #165
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The 'sua sponte' date is March 6, says one of the Michel and Associates lawyers (Peruta's lawyers).

Cannot even guess the likelihood of one judge asking for the rehearing, nor whether 9th would vote to do it.

Note also this, from Sheriff Gore's letter to the Supervisors:
Quote:
... Additionally, the Ninth Circuit went on to emphasize that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession '—or carriage—' 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.”
California law (PC 26200) allows an issuing agency to add reasonable restrictions:
Quote:
(a) A license issued pursuant to this article may include
any reasonable restrictions or conditions that the issuing authority
deems warranted, including restrictions as to the time, place,
manner, and circumstances under which the licensee may carry a
pistol, revolver, or other firearm capable of being concealed upon
the person.
(b) Any restrictions imposed pursuant to subdivision (a) shall be
indicated on any license issued.
Marking licenses 'not valid on school property', for example, is a legal and sometimes used restriction.
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Last edited by Librarian; February 21, 2014 at 08:43 PM.
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Old February 21, 2014, 08:40 PM   #166
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wikipedia claims that:

Quote:
Originally Posted by wikipedia
Federal law states en banc proceedings are disfavored but may be ordered in order to maintain uniformity of decisions within the circuit or if the issue is exceptionally important
What is exceptionally important? Does the circuit court of appeals deal with issues that are not of exceptional importance? Obv we're all biased and think this decision is a planet-shaker, but who knows what the 9th will think.

And what weight does "disfavored" carry?

I guess we have until 3/6 to wonder
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Old February 21, 2014, 08:46 PM   #167
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Ya, I figured it would be hard to guess whether or not one of the judges would act on this. Thanks for the info though, Librarian.
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Old February 21, 2014, 09:08 PM   #168
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We are talking about the 9th Circuit. My money is on one or more of the judges stepping up to the plate.
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Old February 21, 2014, 10:17 PM   #169
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Remember, that whatever Judge might call for en banc, he has to support his call with a written brief.

In light of the opinion from Judge O'Scannlain, it had better be damned good.
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Old February 21, 2014, 10:34 PM   #170
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What's the best course of action right now for those of us that want a CCW in San Diego . Do we go start the paper work Monday or should we wait until all this legal stuff has played out . I just finished a CCW class here in San Diego that covers 38 states that had 4hr of class time and I had to show competence with a firearm . I'm not sure if that certificate will be good for CA . There was a guy in the same class renewing his CA ccw . Not sure if that means anything but thought I'd throw that out there .
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Old February 21, 2014, 11:12 PM   #171
SHR970
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Quote:
Al Norris wrote: Remember, that whatever Judge might call for en banc, he has to support his call with a written brief.

In light of the opinion from Judge O'Scannlain, it had better be damned good.
From Circuit Rule 35-1: When the opinion of a panel directly conflicts with an existing opinion by another court of appeals and substantially affects a rule of national application in which there is an overriding need for national uniformity, the existence of such conflict is an appropriate ground for petitioning for
rehearing en banc.

With the circuit splits and O'Scannlain's opinion directly calling them out on several salient points, doesn't that qualify under 35-1? I may not be a lawyer but the bar doesn't seem too high here.

Besides, just because a judge or three may step up to the plate doesn't mean that they will make it on to first base.
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Old February 22, 2014, 06:03 AM   #172
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You're right-this would be a situation where an en banc would be justified.

However, several reasons why in light of the obvious split they may pass(or simply not get a majority vote):
The obvious time and resources spent on this, coupled with San Diego not wanting to move forward, they may just say the hell with it.
Also, almost every 2A opinion after Heller I've seen always notes a sense of confusion, with some courts outright saying SCOTUS ought to clarify whether the right extends outside the home (MD Supremes in Williams). What better way to have SCOTUS weigh in than to keep the circuit split intact?
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Old February 22, 2014, 07:32 AM   #173
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The AP released an article from the SF Chronicle by Bob Egelko.

In the article he claimed that state Attorney General Kamala Harris could intervene and request a hearing from the full court.
Is this true, can the AG request a full court hearing?

The article also said,
Harris could request intervention from the full court and, if approved, could request a rehearing before an 11-judge panel, an action that would require a majority vote of the court's 27 judges.

Is this true?

Link.

http://m.apnews.com/ap/db_6407/conte...detailindex=11

It says the AG has that power in this article as well.

That means that if there is to be an appeal to the ruling of a three-judge panel, it will have to come from the state attorney general or another judge on the appeals court, said James Chapin, senior deputy county counsel for San Diego County.

http://www.latimes.com/local/lanow/l...#axzz2u1SO0xq7

Last edited by steve4102; February 22, 2014 at 08:11 AM.
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Old February 22, 2014, 09:19 AM   #174
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Quote:
Is this true, can the AG request a full court hearing?
In a word, yes.
The AG can request an "en banc" hearing.
One of our legal eagles can explain it better than I could ever dream to.
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Old February 22, 2014, 09:22 AM   #175
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How can she? CA isn't a party to this lawsuit. Wouldn't it be like an amicus calling for an en banc?
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