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I don't agree with the State's characterization of the Appellant's response, nor do I see this as a case where the constitutionality of a state statute is at issue. As to the latter, the Peruta opinion goes to great pains to explain that the constitutionality of the statute is not at issue, only its interpretation and application by Sheriff Gore. In fact, in most of the urban counties and in Sacramento, the sheriffs are virtual "shall issue', accepting self-defense as "good cause." Is Harris trying to force these sheriffs---should she prevail en banc--to return to a standard of "heightened" need in order to issue--as a matter of constitutional interpretation? Hmm.
The best thing that can happen right now is for the motion to intervene to be granted (likely) and the motion for en banc to be denied, paving the way for a cert petition, hopefully in time for the Supremes to do a "grant and hold" on Drake. The worst thing that could happen would be a reversal by an en banc panel. 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.
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