Richards v. Prieto appealed to 9th Circuit

[62coltnavy]

What I was referring to was your language that Thomas agreed "that the case was correctly decided." Which I read as stating that Thomas was saying that Peruta was correctly decided, and of course he was not. He didn't think that Richards was correctly decided either--he "reluctantly agreed" only that the outcome was compelled by Peruta, not that it was "correct".

[speedrrracer]

Gotta give Thomas some credit, he's a better judge than 4 on the Supreme Court.

Given Heller, 4 of them still didn't vote for McDonald

[JimDandy]

Looking solely at concealed carry, Thomas concluded, based on a long history of cases upholding concealed carry bans, that concealed carry was not within the scope of the Second Amendment--as had the eastern circuits in Kachalsky, Drake and Woolard.

The majority did look at that law more globally, found a right to carry outside the home, and concluded that carry for self defense had to be allowed in one form or another; California having effectively banned urban open carry, concealed carry had to be allowed, and a discretionary system of issuance that had the effect of banning most people from exercising the right was unconstitutional.

Wait, did I miss something? I thought the question included reference to the virtual ban on open carry? Wasn't the issue -and give me some round-about latitude to get there- A challenge to the good cause requirement because Open Carry was virtually banned?

From following the discussion, I was under the impression there was some multi-tiered issue raised that included an assertion that open carry wasn't allowed in enough of the county to count as exercising the right. If that was one of the legs Pertua was figuratively trying to stand on, doesn't that mean the court had to examine that leg as part of their job?

[62coltnavy]

At the time Peruta was decided in the trial court, California still allowed open unloaded carry--as long as you were not in a GFSZ or were in an unincorporated area. The trial court held that this allowance was sufficient to protect the right, notwithstanding Plaintiff's argument that open unloaded is utterly useless in case of a sudden emergency, and granted the Sheriff's motion for summary judgment. The law changed while the case was on appeal.

[Dreaming100Straight]

I guess I am thick. Because one Cali law barred open carry, Gore's exercise of his discretion to determine "good cause" under another Cali law for the issuance of concealed carry permits was held unconstitutional. The law barring open carry didn't exist at the complained of times and was enacted later. How then could Gore's complained of conduct injured Peruta?

Did he resubmit an application or request reconsideration after the law prohibiting open carry was in effect?

[Al Norris]

Dreaming, I think you might have mixed up the two cases.

Regardless, In both Richards v. Prieto and in Peruta v. San Diego, the main complaint was that neither Sheriff (Prieto and Gore, respectively) would accept "self defense" as good cause for the issuance of a concealed carry license.

At the time these cases were filed, you could lawfully carry an unloaded handgun, openly (UOC - Unloaded Open Carry). Both Richards and Peruta argued that carrying an unloaded firearm was not the same as being fully prepared for confrontation. That is, an loaded firearm was essentially useless if you were attacked and needed the firearm, now.

That was the original nature of the complaint. The only method of carrying a loaded and ready handgun was concealed carry, under CA law, and that the authorities administering the law did not accept self defense as good cause. The injury was that both were denied the effective means of self defense under CA law.

The Richards case was the first case filed. Yet the Peruta case was the first one that was decided.

The Judge in Peruta decided that UOC was all that was necessary to fulfill the requirements of the second amendment. The Judge in Richards essentially said the same thing.

During the time both cases were on appeals to the 9th circuit, the CA legislature changed the law and banned any form of open carry within the limits of a city/town. That changed an essential nature of the lawsuits.

Reading Judge O'Scannlain's opinion, although it would not have changed the nature of his decision. It did make his decision easier. Under the operating parameters of the second amendment, as laid out by the Supreme Court in Heller, the State must allow at least one form of armed carry. The State of CA had chosen concealed carry as that means. That the State did, in the form of licensed concealed carry. Where the injury was in the Sheriffs interpretation of the State "Good Cause" clause, the Sheriffs must include "self defense" as good cause.

No State law was struck down. Only a policy of individual interpretation of the law was ruled unconstitutional.

Does that help with your confusion?

[JimDandy]

Under the operating parameters of the second amendment, as laid out by the Supreme Court in Heller, the State must allow at least one form of armed carry.

Now I'm confused again. First, was Heller before or after these two cases were filed?

Second, I thought one of the big "holes" people were debating about with Heller was that it didn't directly deal with carry outside the home, and like that comma in the second amendment, people were arguing about what the inclusion of "in the home" meant. I thought the only thing Heller directly dealt with for this was that requiring unloaded was too much of a burden.

[Tom Servo]

Second, I thought one of the big "holes" people were debating about with Heller was that it didn't directly deal with carry outside the home

Scalia found the right to self-defense to be "most acute" in the home, but in no way did he limit it there.

Possession of a loaded handgun in the home was the central question in Heller.

[Al Norris]

And Heller was decided the year before these cases were filed.

[Jim March]

Richards and Peruta are part of the wave of "carry cases" filed very soon after the Heller decision came down.

[Dreaming100Straight]

Al, Thanks for trying to clear things up for me, but I remain in the dark. I don't think I confused Peruta with Richards at this point, at least,

Essentially, how can Gore have violated a right to carry concealed, if that right didn't exist at the time the permit was denied, but later arose as a result of the open carry prohibition effective in 2011?

[JimDandy]

Essentially, how can Gore have violated a right to carry concealed,

The way I understand it, the right(to carry in some form open or concealed but not specifically concealed) existed, but Gore didn't know it did. While according to Al (Unloaded) Open Carry was legal, Heller all but mocked the idea that Unloaded was sufficient for self defense- the whole must be unloaded, locked up, etc. part.

It seems a bit philosophical, but as I've understood from these guys explaining it, the rights exist whether we know/recognize/codify them or not. For example, we ratified the Bill of Rights in 1791. However, according to this philosophy, we still had a right to free speech in 1775. That's why, from time time, you'll see people say the rights are enshrined, or recognized, etc. but not granted by the Bill of Rights.

So had nothing changed, the 9th MIGHT have said unloaded open carry doesn't meet the core right of self defense, and still held the same regarding Gore's Good Cause policy.

[speedrrracer]

Originally Posted by Dreaming100Straight

Essentially, how can Gore have violated a right to carry concealed, if that right didn't exist at the time the permit was denied, but later arose as a result of the open carry prohibition effective in 2011?

Open carry was banned in CA around 1965. Heller made clear the right is to a functional firearm. UOC is some politician's drug-addled creation.

[Dreaming100Straight]

The right to bear arms existed even before loaded open carry or unloaded open carry was banned, but Peruta found that this right could be provided if open carry was available (as long as it wasn't regulated to the point of non-existence), and if it was provided Cali needn't provide for concealed carry.

Perhaps Gore's denial of good cause was continuing when unloaded open carry was banned.

[speedrrracer]

Originally Posted by Dreaming100Straight

Perhaps Gore's denial of good cause was continuing when unloaded open carry was banned.

UOC was banned in CA about three years ago, and Gore was certainly denying permits before the Peruta decision came down, so yes, the above is factual. I'm not sure what point you're trying to make...

[Dreaming100Straight]

Simply that whether or not one acted validly is usually determined by the law in effect at that time. It appears that the original denial was constitutionally valid, but the enactment barring unloaded open carry made his continuing denial unconstitutional.

[Tom Servo]

Well, the March 6th deadline came and went without any judges on the 9th Circuit requesting en banc review.

The Yolo County sheriff's department has until the 19th if they want to ask for review. Beyond that, only Ms. Harris' motion can trigger it.

[Jim March]

Well, the March 6th deadline came and went without any judges on the 9th Circuit requesting en banc review.

Cool!

The Yolo County sheriff's department has until the 19th if they want to ask for review.

Legally, sure, but the reality is, if we weren't going to get support from ONE judge for an en banc review of Peruta, we aren't going to see a voting majority for Richards.

I'm not saying you're wrong, I'm just saying "the tea leaves appear to say no way Jose".

Beyond that, only Ms. Harris' motion can trigger it.

Well only if the three-judge panel that decided Peruta and Richards agrees. We'll get genetically modified aerodynamic pork before that happens.

Harris was really trying to get one of the 9th Circuit judges to put Peruta into en banc status. We now know that failed.

Oh heck yeah. We're going to see Peruta stand and take effect, preserving the huge gaping 12ga-sized blast hole of a circuit split in time for the Supremes to decide on Drake.

Dominos are falling just like we need 'em to here.

[JimDandy]

Harris was really trying to get one of the 9th Circuit judges to put Peruta into en banc status. We now know that failed.

Don't forget the theory that the 9th wants Harris to apply for Cert, and so her getting standing, but denied en banc is still possible, not?

For that matter, if she's denied standing, why can't she still apply for cert, and claim an additional error in not giving her standing?

Dominos are falling just like we need 'em to here.

I think I'd like Peruta up there with Drake, though I suppose if Peruta is part of the case, there is no case because the size of the split has disappeared. So we're left with just being able to cite it as a roadmap.

[Dreaming100Straight]

It looks like extensions to file petitions were granted the Brady Campaign and the State, those extensions extended the deadline to make a call, as I read the rules, until 7 days after the new deadline for filing petitions.

[maestro pistolero]

those extensions extended the deadline to make a call, as I read the rules, until 7 days after the new deadline for filing petitions.

That is my understanding as well. However, with pending requests for review, it is a moot point. The court can simply grant one of the requests . . . so sua sponte request is unnecessary.

[speedrrracer]

Originally Posted by Dreaming100Straight

It appears that the original denial was constitutionally valid, but the enactment barring unloaded open carry made his continuing denial unconstitutional.

Originally Posted by Heller Decision

It held that the Second Amendment protects
an individual right to possess firearms and that the city’s
total ban on handguns, as well as its requirement that
firearms in the home be kept nonfunctional even when
necessary for self-defense, violated that right.

The function of a firearm is to discharge projectiles. If unloaded, it cannot perform that function.

I agree many courts, laden with anti-civil rights types, will hide behind pedantry as you appear to be hiding. The inability of SCOTUS to cope with it's workload, and reluctance to take 2A cases in general gives additional boldness to those anti-civil rights pedants and it therefore makes UOC a politically viable, if still clearly unconstitutional, option.

I do agree with you that no deadline has yet passed wrt en banc calls. Depending on how one reads the various bits of information out there, we might be waiting for a number of weeks yet. The best timeline, afaict, from Librarian is something like:

Here is the link to that order dated 3/5/2014:
http://michellawyers.com/wp-content/...-Intervene.pdf

So this translates to:

1) Waiting for parties (6000 word max) responses by 3/26/2014. (or did I miscount?)

Response will address:
a) Motion to Intervene by State of California
b) Motion for Leave to Intervene by Brady Campaign
c) Petition for Rehearing En Blanc by Amici Curiae California Police Chiefs’ Association and California Peace Officers’ Association insofar as the Petition is a motion to intervene


2) Unknown wait for court to rule if they have standing

3) ???

[Dreaming100Straight]

That is my understanding as well. However, with pending requests for review, it is a moot point. The court can simply grant one of th requests . . . so sua sponte request is necessary.

Did you mean a ss call is not necessary if intervention is allowed, in which case a petition will be filed?

[maestro pistolero]

Did you mean a ss call is not necessary if intervention is allowed, in which case a petition will be filed?

Yes. that was a typo that i just corrected, thanks.

I believe a petition is already filed from the CAL AG, pending a grant or denial of standing to intervene.

[Dreaming100Straight]

maestro pistolero, I thought that is what you meant, but it is easy to get things backwards when posting. At least it is for me.