HUGE win in California

[Kentucky Dave]

After reading the AG's petition, I sincerely hope that the Court will see it for the poorly crafted argument it is. It lacks the eloquence and pointed argument which the original appellate decision has.

On the other hand, I believe that because the decision is so well crafted, it might be benenificial to have it go to the US Supreme Court. I don't see how it could be overturned.

The fact that San Francisco has ONLY two outstanding CCW permits (according to the recent count I read) speaks volumes. It is inconceiveable on the face of it that in a county of over 800,000 people, there are only two people who could give reasonable "good cause" assertions in a bid to obtain a CCW permit.

 

[Rastoff]

On the other hand, I believe that because the decision is so well crafted, it might be benenificial to have it go to the CA Supreme Court. I don't see how it could be overturned.

I could be mistaken, but isn't the 9th District court over the state supreme court? So, the way I see it the only avenue for appeal is to the US Supreme Court.

 

[Kentucky Dave]

I could be mistaken, but isn't the 9th District court over the state supreme court? So, the way I see it the only avenue for appeal is to the US Supreme Court.

My bad. I'll fix that because you are absolutely correct. Not enough coffee yet to be writing...

 

[GaryS]

I could be mistaken, but isn't the 9th District court over the state supreme court? So, the way I see it the only avenue for appeal is to the US Supreme Court.

Correct on the first point. This case was heard in the Federal Court system. The District Court found against, Peruta, but that decision was overturned by the Circuit Court of Appeals.

At this point, several things can happen. The Circuit could grant standing to the Brady Campaign and/or the State of CA. At this point it's unlikely, but it could happen.

The County of San Diego could apply for cert. before SCOTUS, but probably won't.

The 9th Circuit could decide to hear the case en banc of it's own volition (sua sponte). In the case of the 9th Circuit en banc is not the entire circuit, but is the Chief Judge of the Circuit and 10 judges drawn by lot.

There is an awful lot of politicking going on behind the scenes in this case. There are two other right to carry cases that were heard by the same three judge panel on the same day. One is from CA (Richards), one is from HI (Baker). Of the two, Richards is on more sound ground. The decisions in those cases have not been released yet.

From an appeal for cert perspective, preserving a split between circuits is one of the best ways to get SCOTUS to grant cert.

SCOTUS has denied cert in a number of right to carry case. Some of those have opinions that say that there is no individual right to carry, and some say that there is.

I think that one of these cases is going to be pure enough to be granted cert this year.

 

[Rastoff]

Thank you GaryS.

I don't understand what you mean by "granting cert" though. Do you mean certification to carry?

 

[GaryS]

Thank you GaryS.

I don't understand what you mean by "granting cert" though. Do you mean certification to carry?

Sorry, I'm using legal short hand. Note, that I am not a lawyer, although one of my retirement projects is becoming more involved in 2A legal issues.

Anyway, when I say "cert" I mean the process where the Supreme Court decides to hear a particular case.

The Appellant in the case files a petition for a "Writ of Certiorari" asking the court to accept the case for review. The Court will either grant or deny "cert".

BTW, overwhelmingly SCOTUS denies cert. I think 90+% of the time they refuse to hear a case. There are a lot of reasons for that, not the least of which is the number of petitions that are filed.

When there is a significant split among Circuit Courts, the odds of SCOTUS granting cert go up, but it's not a guarantee.

Several cases similar to Peruta have been denied cert in the past few years. One of those was from Maryland (Woolard), one from New York (Kachalsky). A case from IL (Moore v. Madigan) was settled at the Circuit level when the state declined to appeal and the legislature passed a CCW law.

There is a case out of New Jersey (Drake v Jergen) challenging that states restrictions on CCW pending a decision on cert. The Third Circuit held that there is no individual right to carry firearms outside the home, so is in line with Woolard and Kachalsky. So, now there is a clear circuit split.

There are other cases that will be coming up through the court system over the next couple of years with similar questions.

At some point one of them is likely to be granted cert.

A good resource for following these cases is the Second Amendment Foundation. saf.org. They have initiated a lot of right to carry cases and follow ones that they aren't involved in.

There is even a case that concerns something that I've been saying for a few years. NYC has an exorbitant fee structure for the firearm possession permits they issue. The fee is purposely set to discourage average citizens from applying for permits. I liken that to "poll taxes" that were used to keep poor, mostly black, people from voting in the south. Anyway, that case is pending cert before SCOTUS.

Glad you asked that simple qustion?

 

[judypilot]

One can dream, can't one? I am a 3rd generation Californian, but haven't lived there for 38 years and have no desire to go back. But most of my family is there. Once I get an Oregon permit (they don't have any reciprocity but will accept applications from non-residents), I can carry from any direction to the California border and then have to lock my gun away, despite the fact that some of the areas in California I have to drive to get to my family are as remote as the adjacent areas outside of California. For a woman traveling alone, that is always a concern.

Mostly, I drive down through northeastern California, and those counties are as conservative as the Oregon and Nevada counties next to them. If this holds up and reasonable standards have to be applied and non-residents are allowed to apply for CA CCW permits (an enormous "if", I know), I'm pretty sure a couple of sheriffs in those northeastern counties would be happy to issue a permit to someone like me.

Now it's a race against time. I'm traveling to California a lot these days because my parents are getting pretty old. Will I be able to get a CA CCW permit before they die and my travels taper off a bit? Time will tell. They're old, but they're reasonably healthy. When I look at how fast the number of shall-issue states has grown, how fast (i.e., even faster) reciprocity has spread, and how fast the number of states that issue to non-residents has grown, I'm hoping there's actually a chance that my folks will live to see me be able to carry in CA.

As I said, one can dream, can't one?

 

[Rastoff]

Anyway, when I say "cert" I mean the process where the Supreme Court decides to hear a particular case.

Thanks for the explanation. I knew that the US Supreme Court could choose to not hear a case, but I didn't know that was what it was called. In this particular case, I hope they refuse it. On the CA home front that would be fantastic because the 9th ruling will stand and that will be good for Californians.

For the rest of the country it would be neutral to detrimental. If the US Supreme Court hears the case, and upholds the Peruta decision, it will be the first time since the Constitution was written we'd have the courts ruling our right to protection outside the home. That would be good for everyone. Of course, if they reverse Peruta, that would be bad for everyone. So, it is my hope they refuse the cert.

Glad you asked that simple qustion?

You bet your boots I'm glad. I'm learning more every day.

 

[GaryS]

Based on the current make up of the court, if they granted cert it's likely that they would uphold Peruta. At least I think so, but I could definitely be wrong.

In 2008 SCOTUS decided in Heller that there was a right to keep arms inside one's residence in a ready condition for self defense.

In 2010 SCOTUS decided in McDonald that the Second Amendment was incorporated to apply to the states.

Since then there hasn't been a Second Amendment decision from SCOTUS. I think the situation is going to come to a head this year, but that's based on nothing but my gut instinct.

Of course if the 9th grants and en banc rehearing and overturns the three judge panel that made the decision overturning the District Court it could still go to SCOTUS.

It's far from over.

Thanks for the explanation. I knew that the US Supreme Court could choose to not hear a case, but I didn't know that was what it was called. In this particular case, I hope they refuse it. On the CA home front that would be fantastic because the 9th ruling will stand and that will be good for Californians.

For the rest of the country it would be neutral to detrimental. If the US Supreme Court hears the case, and upholds the Peruta decision, it will be the first time since the Constitution was written we'd have the courts ruling our right to protection outside the home. That would be good for everyone. Of course, if they reverse Peruta, that would be bad for everyone. So, it is my hope they refuse the cert.

You bet your boots I'm glad. I'm learning more every day.

 

[Rastoff]

Based on the current make up of the court, if they granted cert it's likely that they would uphold Peruta.

That's what they though for Roe v Wade and all were surprised.

It's far from over.

Ain't that the truth. In fact it never will be as long as the US Constitution exists as a governing frame work.

This is the great conundrum of a free society; people are allowed to freely think. This is good and bad at the same time. The axiom "If there were no guns, no one would ever be killed by them" is now and always will be valid. Because of that, there will always be shallow thinkers who are incapable of understanding the other axiom "Guns don't kill people, people kill people." And so the argument will continue in courts as long as we have courts.

 

[GaryS]

That's what they though for Roe v Wade and all were surprised.

The Court was looking for an excuse to expand abortion rights and Roe gave it to them. Ironically "Roe" has recently said that she regrets her involvement in the case. Justice Ginsburg recently opined that she thinks the court erred in Roe because abortion rights should have evolved naturally by legislation and the will of the people. Which seems somewhat hypocritical given how she has voted on some other cases. But, I digress.

Ain't that the truth. In fact it never will be as long as the US Constitution exists as a governing frame work.

This is the great conundrum of a free society; people are allowed to freely think. This is good and bad at the same time. The axiom "If there were no guns, no one would ever be killed by them" is now and always will be valid. Because of that, there will always be shallow thinkers who are incapable of understanding the other axiom "Guns don't kill people, people kill people." And so the argument will continue in courts as long as we have courts.

I had that discussion with a student last week. She was totally incapable of understanding that the inanimate object is not the weapon. The weapon is the mind of the attacker. As it turns out she had the same discussion with the lead instructor two years ago and he disabused her of her notions.
This class had nothing to do with law or guns, but somehow we got on the subject.

I also learned out that the lead instructor is a gun owner. Lots of rifles including a Garand and an M16. That's not a typo, he has a Machine Gun license.

That wasn't on the curriculum either, but I learned something about him.

As interesting as that is, it's not the topic of this thread.

We will now have to wait and see what the 9th Circuit decides about an en banc rehearing.

Get out the popcorn.

 

[Rastoff]

We will now have to wait and see what the 9th Circuit decides about an en banc rehearing.

Get out the popcorn.

Just to be clear for more than just me here, an "en banc" rehearing is when the case is rehashed by a panel of judges that numbers more than 3 and does not include the original three, correct?

Does the defendant, the county of San Diego, have to request it or does the 9th circuit decide to rehear it all on their own?

 

[GaryS]

Just to be clear for more than just me here, an "en banc" rehearing is when the case is rehashed by a panel of judges that numbers more than 3 and does not include the original three, correct?

Usually it's all of the judges in the Circuit, but in the case of the Ninth, it's the Chief and 10 other judges drawn at random. That's because the Ninth Circuit is bigger than any of the others.

Does the defendant, the county of San Diego, have to request it or does the 9th circuit decide to rehear it all on their own?

Yes. The losing side can request an en banc hearing or the court can hear the case on it's own volition (sua sponte). Which I think I mentioned in another thread, but repetition isn't necessarily bad.

The Ninth released another Opinion in a 2A case today. Richards v. Prieto. Similar issues to Peruta, similar decision. The decision of the District Court was reversed and the case remanded for further proceedings consistent with the Opinion. Which has not been published yet. It should appear on the Ninth Circuit web site either later today or tomorrow.

The same panel of judges heard both cases, and I'd guess that the vote split is the same.

There is one more case that was heard on the same day by the same panel. It's out of Hawaii and some people think it's a weaker case. I'm not sure it matters as Peruta and Richards will be binding in all Ninth Circuit states.

Oops, I just found a copy of the decision on line. Two pages and says that in light of Peruta, the court finds that the issues are the same and the District is over turned.

 

[madsend81]

Also, yesterday, the Peruta Panel issued orders for the parties (Peruta and San Diego) to respond to the State Attorney General and the Brady Campaigns requests to intervene on behalf of San Diego. 21 days to file responses. I'll be interested to read what each party has to say about the proposed intervention.