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Originally Posted by Glenn
If they go negative, then we get the result that the NRA feared when you go to the court. It's still 4 to 4 with Kennedy being the pivot. I agree that having another progun justice would have been better than pushing this now.
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As it stands, right now, it is perfectly fine for a state (within the 9th Circuit) to make concealed carry as difficult as it wants, even to the point of banning the practice entirely, because concealed carry is not a right.
That part of the Peruta decision comports with every other Federal Circuit Court of Appeals with the outlying exception of the 7th Circuit.. So there would appear, on the surface, to be no real judicial disagreement on the federal level.
The problem with the En Banc decision of the 9th Circuit is that they, like the original panel, had the option to kick the case back to the District Court. Why? Because in the interim of the decision of the District Court and the original appeal to the 9th Circuit, the CA law on open carry had changed. Dramatically.
Such a change in law is almost always kicked back to the originating court to be litigated.
Here, the appeals panel decided the case as if that change had been fully litigated. The result was a decision that was well within the bounds of the second amendment and comported very well with the 7th Circuits decision in Moore.
This decision resulted in an En Banc panel being called. At this point, the State of CA (who had declined to be heard at the District Court, because the lawsuit did not affect any CA law) wished to become a party, because they rightly saw that their open carry law could be overturned. Rightly or wrongly, the 9th Circuit allowed the State to become a party to the case(s).
After everything was said and done, the En Banc decision said that concealed carry was not a right within the bounds of the second amendment. The decision did not touch on the issue of a right to carry in some form or manner, outside of the front door of your house. The court simply ignored that part of the question before it.
Yes, it technically leaves the door open for a future case in deciding if a citizen has a right to carry openly. Yet at the same time, because the 9th circuit failed to kick the case back to the District court, and the court ignored that portion of the case tied to some form of carry, it has pretty much signaled how it would decide such a future case.
The effect of that decision is that within the 9th Circuit (9 states and 2 territories), carry anywhere outside of your house may be banned and leaves the second amendment a virtual toothless right. You may "keep" your arms, but you may not "bear" them.
So we are left with the possibility that the SCOTUS will not grant cert, thereby leaving the decision of the 9th circuit intact. That will have the affect of emboldening the other circuits to modify future decisions to employ the same results.
Or, the SCOTUS may grant cert and we let the marbles fall where they may.
That scares a lot of folks, Glenn. But I want to know, once and for all, whether or not the highest Court in the land says I can not protect myself against lethal threats outside of my domicile. That is what this case is about.