Peruta v. San Diego

[Metal god]

And now he's confusing the right to carry firearms with the right to actually use them, for hunting deer or shooting pigeons within city limits. Compares restrictions on hunting with restrictions on smoking, to demonstrate that of course you can heavily restrict guns, just like we did with cigarettes. Big laughs all around. Nobody seems to catch that it's not illegal to carry cigarettes anywhere.

Yea that had me scratching my head to . Just because I have a CCW does not mean I get to shoot pigeons off the telephone lines .

Was it as big a deal as it appeared to me that the state and all on there side conceded that carrying outside the home is protected or a core right . That seems like a huge concession to me.

"Carrying outside the home" is not the same as "carrying in public in an urban setting" according to the government. Is this person a moron?

haha yea you can't carry while walking down the street because nobody just walks down the street lol . you like walking the dogs or just taking an evening stroll to get out of the hot stuffy house . I could go on and on of reasons to walk down the street for no apparent reason . Further more if the store down the street says I can carry in there store . Did he give me the ok to carry while I walk to and from there because I now am going some place that allows me to carry .

And now rebuttal, Clements points out that the open carry ban applies both to incorporated areas and prohibited areas in unincorporated areas, which is basically everywhere near streets, homes, businesses, so it's not a small portion of the places that someone might go, which is what the State was arguing (the state went so far as to say, metaphorically but completely ridiculously, that 99% of places someone might go outside of urban areas allow open carry, and only 1% are prohibited).

It was brought up in other parts of this case how all the places that are prohibited are the same areas you would have a more likelihood of needing to defend your self . The one judge started to say something to that point but realized know one had said in court yet . I'm thinking it was in a Ameci or brought up in other arguments . Why was that not brought up by are side . If I'm out in the middle of nowhere with nothing around for miles . What's the likely hood I'll need a firearm for self defense ?

I think it went well for are side but when it comes to the 9th , that does not mean anything .

[Gary L. Griffiths]

Any idea on when they will actually rule on the case?

[Metal god]

oh and why did the judge on the lower left keep bringing up the point that the law had changed since the case was brought . Asking if they should rule as if the law was still the same as it was 5 years ago ????? Why would that even be an option ?? Lets reverse it and say the new law says you can carry CCW . Who in there right mind thinks it's OK to rule based on the 5 year old law that said you can't CCW . How does that ruling go . Sorry mr Peruta you can't have a CCW permit but everybody else can

Or a case that was brought before slavery ended . Well you were able to own slaves when this case was filed so you can keep yours . WTH am I missing something here was that as dumb a line of questioning as it sounded ????

[csmsss]

The outcome seems a foregone conclusion to me. They drew a crummy panel (obviously) of appellate jurists. I guess the best we can hope for is that this just adds to the melange of contradictory lower court rulings that forces SCOTUS to either finish what it started with Heller and finally make it clear to lower courts that this bizarre notion that a foundational constitutional right does not end at our doorstop. Otherwise, it will reveal that Heller was never meant to be anything but a symbol, a paper tiger it never intended to give flesh and bones.

[Librarian]

Any idea on when they will actually rule on the case?

No - no schedule is imposed on the court; they can take as long as they want to consider things.

[bandaid1]

Wow, after watching the court hearing, I have no idea which way this is heading. I am confused on why NOW the state is being allowed to chime in on this issue when they have already said, "we aren't involved" that this is a local Sheriff issue. Well if it is a local sheriff issue and the sheriff does not want to take it any further, than I don't see what right the state has in the dispute.

I would love to hear these justice ask those same questions that they asked about the 2nd Amendment; in a 1st, 4th, or 5th Amendment case. "what is your good cause for remaining silent?" "Do you have a permit to pray?" "You'll have to take a safety class before you can be secure in your persons, houses, papers and effects." " concealed verses open speech" Yep, it would be a interesting discussion.

[tyme]

I don't know whether it was in the briefs, but I would have liked to see one of the lawyers rip into the judges' questions about different kinds of places being justified in having different restrictions on carry.

The "unsafe" nature of carrying guns does not come from the carrying of guns, it comes from the fact that there are gangs, drug dealers, etc who carry guns, and use them, on purpose, to commit violent felonies. Almost without exception, the street crime that concealed carry restrictions might conceivably be intended to address is disconnected from anyone who would seek to get a permit.

I realize that the 9th circuit is a dangerous place to be making ideological arguments about carry, but this whole open vs concealed carry thing is ridiculous. And anyone can see that it's stupid, because every place that bans either concealed or open carry, but not the other, has "good" reasons for doing so: Concealed is bad because if you're carrying a gun it should be visible so that you can't surprise anyone with your gun. Open carry is bad because it panics the general population (pun intended).

It's insane to have two mutually exclusive "good" reasons to prohibit open vs concealed carry, without any evidence that the reasons are valid, and then suggest that the Constitution allows you to impose those arbitrary restrictions on one or the other mode of carry for those $reasons, because you're going to conveniently ignore the equally implausible reasons that other people put forward for banning the other mode of carry.

Phoenix can deal with unlicensed open carry, and it has a lot of Los Angeles transplants. That should put to rest the "average citizen will be frightened" argument. And the vast majority of states allow licensed concealed carry for anyone who can pass a background check, which should put to rest the "concealed carry is only for sneaky criminals" argument.

Any argument against any sort of carry at this stage is just academic ideological navel-gazing.

[csmsss]

I especially love the mouthpiece that the California AG's office put forth who, with a straight face, suggested that the only reason people walked in public places was to go to a place where carry was permitted in some form or fashion and that therefore a ban on public carry didn't significantly burden the right. It was a most extraordinary legal fiction concocted to maintain the fiction that California's laws reflect the citizenry's right to self defense in public places.

[Librarian]

people walked in public places was to go to a place where carry was permitted in some form or fashion and that therefore a ban on public carry didn't significantly burden the right.

Not that practicality seems a strong point in this case, but suppose that every place I want to visit in town would allow me to carry, but it would be illegal to carry on the street, as open carry is banned in cities and concealed carry is banned in cities without CCW.

So,
(1) I unload and lock my gun in its case, take it to the car, and drive to my doctor's office. (Disarm)

(2) I bring in that locked case, open it, reload the gun, place the easily handled paddle holster on my hip and holster the gun. (Arm)

Having completed my appointment, I want to shop for groceries. Leaving the doctor, (1). Arriving at the grocery store, (2).

Time for lunch - leave the grocery store, (1) and drive to the coffee shop, then (2).

I need a haircut, so (1) to walk 1 building over in the little strip mall and (2) at the barbershop.

After the haircut, (1), back to the car and a quick trip to the hardware store, (2) and then home again, (1) for the trip and (2) when I get home.

Carrying an unloaded gun in a locked case is hardly 'having a firearm ready for use in self defense'.

[Metal god]

The "you can carry everywhere but on the street" is lame as all get out . It's one of those comments you just want to ask " did you just hear what you said"?

IMO , I think the state failed when they banned open carry (OC) , made it almost impossible to conceal carry (CC) then conceded in court yesterday that the right to bear arms extends outside the home . I can't see how any reasonable judge can think that's keeping with the 2nd . Yes this is the 9th but when the one judge asked " is it the states view that the core right extends outside the home" YES or NO ? When the state answered YES , that's when we won this case . What the state did there was say , yes the right extends outside the home but we will not give you an outlet . We win slam dunk case over in the real world .

[rwilson452]

I don't put much faith in the 9th. If I recall correctly they are the most reversed court out there.

[publius42]

They no longer hold that title and even the most reversed courts are not reversed all that often. Doesn't mean much.

The silliness at the oral arguments means more. "Public, except the street" just makes no sense to me but seems to make lots of sense to the panel.

[SHR970]

publius42 wrote: They no longer hold that title and even the most reversed courts are not reversed all that often. Doesn't mean much.

In 2012 the 9th Circus did better than usual...only a 74% REVERSAL RATE. ABA Journal article link .

Better than 2009 with a 94% reversal rate........ post-gazette article link

[jrwhitt]

IMO , I think the state failed when they banned open carry (OC)

And remember - this was **UN**Loaded open carry they banned - Loaded Open Carry was banned by the Mulford Act in 1967

[publius42]

From the Post-Gazette article:

Most analysts dismiss statistics on reversal as of little significance, given the small number of cases reviewed from most circuits.

Which is another way of saying that even the most reversed courts are not reversed all that often. Of the opinions reviewed by the Supreme Court, most are reversed in most circuits. Of all opinions from all circuits, only a small fraction are reviewed.

[maestro pistolero]

I think a remand to district court is possible in light of Judge Irma Gonzalez reliance upon unloaded open carry to satisfy the right (leaving aside the stupidity of requiring an unloaded gun for defense). CA subsequently banned even unloaded open carry.

[Metal god]

Peruta losses , conceal carry not constitutional

http://cdn.ca9.uscourts.gov/datastor...20webcites.pdf

190 page opinion

It seems they did not rule on the actual thing the case was brought for . Peruta claimed the good cause part of the statute was unconstitutional because one needs to show a better reason then other law abiding citizens . It it because they say conceal carry in not constitutional , therefore it can be regulated in any way ??

[heyjoe]

well you dont want to appeal this to a supreme court where a 4-4 tie results in the Appeals Court decision standing.

[LogicMan]

Interesting how these justices always cite historical examples when it suits their ideology (or when they think it does), but yet will overturn historical examples when it doesn't (such as same-sex marriage, women's rights, etc...)---which BTW, I actually am all for right to same sex marriage and women's rights, but there is little historical precedent for either, so going by history would be a bad idea for either one.

They are correct that historically, laws restricting concealed carry were normal, but not laws regarding open-carry. When they restricted concealed carry, they meant you had to carry openly, not that you couldn't carry at all. So at most, the 9th Circuit was selective in their history it seems, as I haven't read the ruling, but if they went fully by history, they would have said that historically, there were laws restricting the concealed carrying of arms, but not the open-carrying of arms because it was expected that if one carried, they'd do so openly. Being that California now bans open carry, and being that concealed carry today is seen as the equivalent of how open-carry used to be, i.e. the acceptable way of how to carry a firearm in public, then it can be ruled that concealed carry is in fact protected unless or until the state legalizes open-carry again. In addition, laws regarding concealed carrying were done before the Bill of Rights was applied to all of the states.

The only thing I don't get is, why was this lawsuit brought in the first place? Didn't the plaintiffs realize that they would probably lose? It's not nicknamed the 9th Circus by gun rights proponents for nothing!

[1-DAB]

odd case. the plaintiffs won, the defendant (San Diego) announced they would not appeal, and then in came the AG wanting to be made a party to the suit, even though their time to do so had long passed, so they could appeal. the AG was eventually granted standing, and thus appealed and won.

i'd love to see this whole thing tossed out for lack of proper standing by the AG and revert to the lower court decision.

[Metal god]

Being that California now bans open carry, and being that concealed carry today is seen as the equivalent of how open-carry used to be, i.e. the acceptable way of how to carry a firearm in public,

That's really the point now . CA made the choice that conceal carry is it's preferred metthod . They did so when they banned open carry .

oh but wait there's a bigger problem with all that . When Peruta filed , open carry was still allowed in CA . All be it , open unloaded with ammo close by yep that was the law at the time Peruta filed his case . So the fact CA had "open carry" (cough cough , choke choke) . They could not argue they wanted any outlet because if they just asked to be able to carry . The court would have said " well you can open unloaded carry " so case dismissed . So they only argued for conceal carry and really all they really were arguing was the good cause part of the statute .

Some time later CA banned open carry pretty much across the board . My understand is the fact Peruta did not argue for both open and concealed or at least some outlet . He could not bring up open carry as a main part of his suite when arguing at the 9th . This makes it easy on them because they don't have to address the open carry aspect of the law . Only what is brought before them and how it applied at the time of the filing .

They said as much in the opinion

Plaintiffs contend that the good cause requirement for
concealed carry, as interpreted in the policies of the sheriffs
of San Diego and Yolo Counties, violates the Second
Amendment. Plaintiffs’ arguments in the two cases differ in
some particulars, but they essentially proceed as follows.
First, they contend that the Second Amendment guarantees at
least some ability of a member of the general public to carry
firearms in public. Second, they contend that California’s
restrictions on concealed and open carry of firearms, taken
together, violate the Amendment. Third, they contend that
there would be sufficient opportunity for public carry of
firearms to satisfy the Amendment if the good cause
requirement for concealed carry, as interpreted by the sheriffs
of San Diego and Yolo Counties, were eliminated. Therefore, they contend, the counties’ good cause requirements for
concealed carry violate the Amendment. While Plaintiffs
base their argument on the entirety of California’s statutory
scheme, they allege only that they have sought permits to
carry concealed weapons, and they seek relief only against
the policies requiring good cause for such permits. Notably,
Plaintiffs do not contend that there is a free-standing Second
Amendment right to carry concealed firearms.
We do not reach the question whether the Second
Amendment protects some ability to carry firearms in public,
such as open carry. That question was left open by the
Supreme Court in Heller, and we have no need to answer it
here. Because Plaintiffs challenge only policies governing
concealed carry, we reach only the question whether the
Second Amendment protects, in any degree, the ability to
carry concealed firearms in public. Based on the
overwhelming consensus of historical sources, we conclude
that the protection of the Second Amendment — whatever the
scope of that protection may be — simply does not extend to
the carrying of concealed firearms in public by members of
the general public.
The Second Amendment may or may not protect, to some
degree, a right of a member of the general public to carry
firearms in public. But the existence vel non of such a right,
and the scope of such a right, are separate from and
independent of the question presented here. We hold only
that there is no Second Amendment right for members of the
general public to carry concealed firearms in public.

Now what they should have done since the laws had changed . They should have sent the case back down rather then rule on it .

[Armed_Chicagoan]

So now can they sue over the open carry ban?

[Metal god]

Not only yes but there is a case at the 9th right now on open carry Nicholes vs something I think is the name . Sorry can't find a link right off hand .

[Tom Servo]

the defendant (San Diego) announced they would not appeal, and then in came the AG wanting to be made a party to the suit, even though their time to do so had long passed

It might have something to do with the fact that AG Harris is running for a Senate seat.

[Metal god]

Tom

That right there is a scary thought . Are country is in big trouble if a senate election would influence a 9 judge panel . Not saying it didn't or never has . Just pointing out that would be sad for not only the country but are side of the argument .