June 9, 2016, 11:16 PM | #451 |
Senior Member
Join Date: November 23, 2009
Posts: 3,963
|
Elections have consequences a long ways from the obvious ones.
Vote. |
June 10, 2016, 12:47 AM | #452 | ||
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
The decision was expected, so in that light, I was not disappointed. What did surprise me was the breadth of the decision, as I will show in just a moment. First, let's look at at what this En Banc court signaled, right at the start.
Quote:
Reading all of this, you might be thinking that we need an open carry case. you would be forgiven in thinking in those terms. But you couldn't be further from the truth, however. On page 52 of the opinion, the court agrees with a separate concurring opinion by Judge Graber that signals what the court will do when such a case comes before it (yes, yes. I here some of you screaming about the Nichols case, which is now before the 9th Circuit). Let's read what the majority says about Judge Grabers separate concurrence: Quote:
And that is also what I mean by the breadth of this opinion. It completely reads "bear" out of the text of the amendment. In short, in a State under the jurisdiction of the 9th Circuit, if that State wishes to curtail your right to bear arms, it can do so, with the blessing of the 9th Circuit Court of Appeals. |
||
June 10, 2016, 01:44 AM | #453 |
Senior Member
Join Date: February 1, 2011
Posts: 356
|
What you are arguing, as I understand it Al, is that when the issue arises, the Ninth will likely conclude that carry outside the home is entitled only to "intermediate scrutiny," and thus reasonable restrictions on that right are constitutional? But how would that jive with California's current urban open carry ban? I think they hinted at, by their long list of places where handguns may permissibly be carried openly, that a ban on urban carry will pass muster, because, well, just because. Of course, it should be made clear that the Ninth Circuit's version of "intermediate scrutiny" is hardly more than rational basis review by another name--a review that places the interest of the "public" (meaning of course the government, interesting how those two have become conflated) above those of the individual, Heller notwithstanding. (See, e.g., Jackson v. San Francisco).
Now things do get rather interesting--or twisted. Once having held that there is no 2A right to concealed carry, they have to recognize a 2A right to open carry (at least in some fashion)--or to declare that the 2A does not apply outside the home. The latter would be difficult to do--the State of California admitted during oral argument to the panel that there is a right to bear arms outside the home (strangely not mentioned in the decision, since it was an admission). They are then trapped into overturning the open carry ban. And that will present the State with an interesting conundrum. Does it rewrite the law to allow open unloaded? (Which is more likely than open loaded, given the anti-gun animus). This would be the most expected outcome, since the legislature is well aware of the open unloaded demonstrations (often at Starbucks locations) that brought complaints from the soccer moms to the PD (and to public officials). While before they felt it necessary to do away with this practice, they may reconsider, knowing that the police will invariably be called multiple times, carriers will be harassed and "encouraged" not to open carry (at the point of a gun no doubt), leading to a general decline in the practice 9as had been the case between 1968 and 2012). Meanwhile, the current CCW licensing system will remain in place. Currently that system is applied disparately. SF is "no issue," LA is virtual no issue, but most of the interior and northern counties are "shall issue." |
June 10, 2016, 03:10 AM | #454 | |
Senior Member
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,876
|
Al , Are you saying that concurrence paves the way for the open carry ruling to read something like this
Quote:
See here at time 12:20 through 18:50 http://www.ca9.uscourts.gov/media/vi...vid=0000007886
__________________
If Jesus had a gun , he'd probably still be alive ! I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again . Last edited by Metal god; June 10, 2016 at 03:25 PM. |
|
June 10, 2016, 10:57 PM | #455 |
Senior Member
Join Date: November 2, 2005
Posts: 1,196
|
It is being reported that some 2500 concealed carry license applications have been rejected by they San Diego sheriffs office due to the 9th circuit court's decision.
|
June 12, 2016, 08:05 PM | #456 | |
Staff
Join Date: October 13, 2001
Posts: 3,355
|
Quote:
The norm everywhere is clearly concealed carry, by a wide margin. But the judges on the 9th apparently have trouble seeing down through the clouds of their ideology to Earthly realities. They see a theoretical out, and they take it.
__________________
“The egg hatched...” “...the egg hatched... and a hundred baby spiders came out...” (blade runner) “Who are you?” “A friend. I'm here to prevent you from making a mistake.” “You have no idea what I'm doing here, friend.” “In specific terms, no, but I swore an oath to protect the world...” (continuum) “It's a goal you won't understand until later. Your job is to make sure he doesn't achieve the goal.” (bsg) |
|
June 12, 2016, 11:44 PM | #457 |
Senior Member
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,876
|
tyme , Although I agree with your historical annalist , I don't agree a court should change law based on the new norm . I personally don't see there ruling as incorrect as far as that aspect of it . On the other hand as I believe I stated above ( I've wrote in a few forms now not sure what all I wrote where ) They never should have ruled on the case . The law had changed while Peruta wound it's way through the court meaning there is no path to the carrying of firearms in public by members of the general public as it stands now .
IMHO they should have sent it back for the lower court to rule on the cases as the law sits now . Example , If the law had changed to allow CC would they have still ruled CC is not protected . No because the law changed therefore the case changed and they would have mooted it . If that's even a term
__________________
If Jesus had a gun , he'd probably still be alive ! I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again . |
June 21, 2016, 12:28 AM | #458 |
Senior Member
Join Date: February 1, 2011
Posts: 356
|
Responding to both tyme and Metal God, not only have the community norms changed, but California, during the pendency of the appeal, banned open unloaded carry (open loaded carry having been banned in 1968 under a bill signed by Gov. Reagan). The majority conveniently finessed this huge issue, noting that Plaintiffs did not raise it--because of course they could not since it was not an issue when the underlying judgment was entered. Thus, the court avoided the issue that California essentially bans the carry of arms in all urban (incorporated) areas unless one has a CCW, and that for residents of the most heavily urbanized areas, such as San Diego, Los Angeles, and San Francisco, there is no possibility of the majority of citizens from obtaining a carry license. Licenses are granted only to those with a "special need" greater than the average citizen. Which philosophically makes no sense: if it is true, as the State conceded at oral argument, that the right to "bear" exists outside the home, and that the "core" of the right is self-defense, how can it be a guaranteed right if only the few are allowed to exercise it?
Time will tell. But at this point, I am essentially hopeless for California, even though I live in a "virtual shall issue" county. |
June 21, 2016, 01:09 PM | #459 | |
Senior Member
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 317
|
Quote:
So while I agree with the 9th that there may be some few & generally ancient proscriptions against concealed carry, they recoiled from their duty of dealing with the elephant in the room, which is that no form of "and bear" exists for the lion's share of the people of California. They have not always shown such reluctance to deal with the broader issue, and therefore their cowardice and bias here reeks all the stronger. |
|
June 23, 2016, 05:18 PM | #460 |
Staff
Join Date: October 13, 2001
Posts: 3,355
|
It's not about changing the constitution.
Banning concealed carry because open carry is (or was, when the case began) allowed is not constitutional. Claiming it's constitutional is the same logic used to argue that a ban on handguns is constitutional because people can always have shotguns. We don't need a constitutional amendment saying "...the right to keep and bear semi-automatic handguns..." so we don't need a constitutional amendment saying "...the right to keep and bear—and conceal in public—arms..."
__________________
“The egg hatched...” “...the egg hatched... and a hundred baby spiders came out...” (blade runner) “Who are you?” “A friend. I'm here to prevent you from making a mistake.” “You have no idea what I'm doing here, friend.” “In specific terms, no, but I swore an oath to protect the world...” (continuum) “It's a goal you won't understand until later. Your job is to make sure he doesn't achieve the goal.” (bsg) |
June 23, 2016, 05:58 PM | #461 | |
Senior Member
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 317
|
Quote:
(sorry, I had to go barf) And after Hillary appoints a few Sotomayor clones, do you think SCOTUS will agree / disagree / not even grant cert? |
|
June 23, 2016, 11:46 PM | #462 |
Senior Member
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,876
|
Is Peruta even going to appeal ? I'd think with only 8 judges a denial or a split at best is likely so why bother ?
__________________
If Jesus had a gun , he'd probably still be alive ! I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again . |
June 24, 2016, 08:30 PM | #463 | |
Senior Member
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 317
|
Quote:
http://michellawyers.com/wp-content/...-Rehearing.pdf |
|
|
|