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Thread: Peruta v. San Diego en banc petitions filed

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    Thumbs up Peruta v. San Diego en banc petitions filed

    Both the California Attorney General and an Amicus (The California Peace Officers Association and California Police Chiefs Association) filed petitions for an en banc review of the Peruta decision on the very last day of the deadline (Feb. 27). Technically the AG filed a motion and a proposed petition but I will leave that up to those who enjoy splitting hairs to quibble over.

    AG Harris made no mention of my Open Carry lawsuit (Nichols v. Brown) but the Amicus mentioned it eight times. No amount of publicity could have substituted for that.

    Which raises an interesting possibility. Given that I already have the denial of my preliminary injunction on appeal and mine is a pure Open Carry case, it would promote judicial economy for my appeal to be heard at the same time before the same en banc panel.

    Links to the en banc petitions can be found here.

    Charles Nichols - President of California Right To Carry

    "[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2816.

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    Regular Member OC for ME's Avatar
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    Is the 9TH Circus concerned with economy? It is the left coast and more precisely, SF.

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    I believe judicial economy is broader than mere fiscal economy. The use of a legal term of art, for instance, legal jargon rather than a paragraph of explanation in plain English is judicial economy. A class action is more judicially economic than many repetitions of the same complaint and defense.
    I am responsible for my writing, not your understanding of it.

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    Quote Originally Posted by Nightmare View Post
    I believe judicial economy is broader than mere fiscal economy. The use of a legal term of art, for instance, legal jargon rather than a paragraph of explanation in plain English is judicial economy. A class action is more judicially economic than many repetitions of the same complaint and defense.
    You are correct and I did use the term "judicial economy" an example of which is in United States v. Perry, 431 F. 2d 1020 - Court of Appeals, 9th Circuit (1970):

    "Since a trial will be required on the main issue, and since the parties are before this court, we find it appropriate in the interest of judicial economy to resolve a number of questions of law."

    The 9th Circuit Court of Appeals alone has used the term in about 800 cases since then. Judicial economy is not a concept unique to the 9th Circuit Court of Appeals. Every Federal and state court resorts to it when it can, or at least when it wants to.

    I suspect that AG Harris did not confer with the Amicus. The last thing she wanted is to bring to the attention of the en banc court the existence of my Open Carry case.


    Charles Nichols - President of California Right To Carry

    "[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2816.

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    From what I have heard, is the AG wasn't a party to the Peruta case, refused to be a part of the case, and since a law was not overturned, just that the reason for good cause must include self defense, the AG doesn't have standing to even ask for a en banc.

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    Quote Originally Posted by RANDYT View Post
    From what I have heard, is the AG wasn't a party to the Peruta case, refused to be a part of the case, and since a law was not overturned, just that the reason for good cause must include self defense, the AG doesn't have standing to even ask for a en banc.
    Follow the link in my original post and read her petition. The page also includes a link to the Federal Rules of Appellate Procedure and 9th Circuit local rules. Don't rely on what others tell you especially when you can go to the source.


    Charles Nichols - President of California Right To Carry

    "[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2816.

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    Regular Member OC for ME's Avatar
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    Is the 9th Circus concerned with economy? It is the left coast and more precisely, SF. And, is the court going to be economical by conjoining CA OC with the Peruta case/decision?

    It is the left coast and it will be a huge win for liberty if the "good cause" CCW opinion sucks into it a OC is legal in CA consideration for the sake of economy.

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by RANDYT View Post
    From what I have heard, is the AG wasn't a party to the Peruta case, refused to be a part of the case, and since a law was not overturned, just that the reason for good cause must include self defense, the AG doesn't have standing to even ask for a en banc.
    You are correct. The 9th Circuit is an Article III Court, as are all Federal Courts. That means that they are courts of limited jurisdiction.

    This is why the California AG must ask to join before making a motion for an en banc review. The matter before the appeal court was not California law, but the policy of the Sheriff of San Diego. Hard to see how Cruella Harris could be found to have standing. I predict 3-0 ruling from the panel to find that she does not have standing and en banc review never happens.
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    Quote Originally Posted by RANDYT View Post
    From what I have heard, is the AG wasn't a party to the Peruta case, refused to be a part of the case, and since a law was not overturned, just that the reason for good cause must include self defense, the AG doesn't have standing to even ask for a en banc.
    The AG explained why she has standing to file the petition in her brief. Did you bother to read it?

    Charles Nichols - President of California Right To Carry


    "[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2816.

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    Quote Originally Posted by Thundar View Post
    You are correct. The 9th Circuit is an Article III Court, as are all Federal Courts. That means that they are courts of limited jurisdiction.

    This is why the California AG must ask to join before making a motion for an en banc review. The matter before the appeal court was not California law, but the policy of the Sheriff of San Diego. Hard to see how Cruella Harris could be found to have standing. I predict 3-0 ruling from the panel to find that she does not have standing and en banc review never happens.
    Generally AGs can represent STATE agencies and the state ... not municipal corporations...so I don't think any AG argument regarding standing is going to pass muster.

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    Thumbs up By Order of the Court - Peruta Mandate stayed.

    "02/28/2014 Filed order (DIARMUID F. O'SCANNLAIN, SIDNEY R. THOMAS and CONSUELO M. CALLAHAN) The Brady Campaign to Prevent Gun Violence’s Motion to Extend Time for Filing a Petition for Rehearing En Banc and Stay the Issuance of the Mandate, and Proposed Intervenor State of California’s Motion to Extend Time to File a Petition for Rehearing En Banc and Stay Issuance of the Mandate, both filed with this Court on February 27, 2014, are GRANTED. Any proposed petitions for rehearing filed with this Court by February 27, 2014 will be considered timely if this Court grants the petitioners’ concurrently filed motions to intervene. This order does not extend the time for filing petitions for rehearing for any petitioner who did not move to intervene by February 27, 2014. Submission with respect to the pending motions to intervene is deferred pending further order of the Court. Issuance of the mandate is stayed pending further order of the Court."

    In addition to a stay of the mandate, both the Brady Campaign and LCAV have filed motions to intervene and petitions for a rehearing en banc.


    Charles Nichols - President of California Right To Carry

    "[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2816.

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    Campaign Veteran since9's Avatar
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    Another article...

    I think this characterization is appropriate: "Leave it to the Marxist anti-gunner California Attorney General Kamala Harris to attempt to foist her will upon Californians."

    Includes a great synopsis:

    Harris is seeking what’s known as en banc review, meaning the state of California has requested that a full panel of 9th Circuit judges reconsider the case (this month’s ruling was by a 3-judge panel). Should the 9th Circuit refuse to review en banc, the state’s next move would be a petition asking the U.S. Supreme Court to step in and overturn the ruling.
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

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    State Pioneer ConditionThree's Avatar
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    Quote Originally Posted by since9 View Post

    Includes a great synopsis:

    Harris is seeking what’s known as en banc review, meaning the state of California has requested that a full panel of 9th Circuit judges reconsider the case (this month’s ruling was by a 3-judge panel). Should the 9th Circuit refuse to review en banc, the state’s next move would be a petition asking the U.S. Supreme Court to step in and overturn the ruling.
    Now why would the state of California want SCOTUS to rule on Peruta?

    They want nothing of the sort. SCOTUS is too risky post Heller. They are hedging their bets that the 9th will take it up and rule their way to maintain the status quo. It's a desperation measure.
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    I believe if a full panel of the 9th reviews they would overturn the previous ruling.

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    the intervention by the State AG is going to be subject to the law on intervenors. it's not all that easy to intervene in a pending matter, let alone when you're trying to intervene in a case that has been decided at the trial AND appellate levels. i just don't see intervention being allowed by the 9th. i don't know what the standard is for intervention in CA but it likely requires some showing that the current parties do not adequately represent the putative intervenor's rights and/or that the intervenor would be prejudiced by a ruling without participation. this prejudice is balanced with the prejudice to Peruta and the San Diego Sheriff. Obviously, Peruta's interests would be trampled by a delay AFTER decision.

    nevertheless, if enough justices in the 9th are upset by the panel ruling...they'll just split the difference, deny harris' motions and take it en banc all on their own.

    the other argument the 9th can make is that allowing her to intervene and submit her papers doesn't really tax the bench that much because they could vote to hear it en banc with just the existing parties. basically, en banc is something they could do on their own so it makes no difference if she's allowed to participate.

    all of this ignores the bigger issue. the fact of the matter is that this is a SCOTUS question regarding the Fed Constitution...letting this sleeping dog lie with Drake waiting for certiorari will cement the split further and make Drake a "must grant" case for the SCOTUS leading to all kinds of judicial economies.

    if the 9th votes to hear this thing en banc, the split will be MUCH weaker and less-clearly stated and the SCOTUS can dodge Drake and wait for another case to come out of the 1st Circut OR for Peruta's SCOTUS appeal (if reversed).

    NONE of the downstream effects of a grant of Harris' motions or an en banc review by the court lead to ANY economies...which means that you will see any opinion/decision so granting be peppered with such proclamations as "in the interest of judicial economy we hereby grant...." If it happens, it will be purely political and designed to stop the 2A dead in its tracks.

    Justice O'Scannlain must have foreseen all of this nonsense which is why his opinion was so meticulously drafted...he's got to be one of the smartest 2A-deciding justices I've seen...based just on that opinion, he's SCOTUS material and/or he has some really good clerks.

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    Thanks for the informed analysis.
    I am responsible for my writing, not your understanding of it.

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    Quote Originally Posted by onus View Post
    I believe if a full panel of the 9th reviews they would overturn the previous ruling.
    I agree with you...and the opinion will be RIPPED by the SCOTUS if it visits the issue. O'Scannlain hammered the 2nd, 3rd, and 4th for ignoring the relevant language of Heller. After calling attention to their mistakes in his opinion, the Justice who drafts the next opinion will have an even higher hurdle. Each day that passes, the task of writing the reversing opinion just gets more and more distasteful. They'll basically be trying to create a Terry-like exception to the 2A except without any sort of supporting RAS. The opinion will have to say "a law abiding citizen is not entitled to exercise his 2A rights outside the home until he is a victim of a crime." Considering the statistical probability of one person being a victim of crime is exceedingly low, (and some portion of those people don't get a second chance)...so too will be the grant of the RKBA...and that could not be justifiable by any level of scrutiny.

    there's simply no language anywhere in history that one must pre-qualify for the RKBA by prior victimization or any other metric and the legislature isn't empowered to create such a nonsense qualifier.

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    Quote Originally Posted by CT Barfly View Post
    Justice O'Scannlain must have foreseen all of this nonsense which is why his opinion was so meticulously drafted...he's got to be one of the smartest 2A-deciding justices I've seen...based just on that opinion, he's SCOTUS material and/or he has some really good clerks.
    First of all it is Judge not Justice O'Scannlain.

    What O'Scannlain did was to deliberately ignore the binding prior panel decision in US v. Chovan and applied his "substantial burden" framework which had been vacated by an en banc panel in Nordyke.

    His conclusion that Open Carry can be banned if concealed carry is available speaks for itself. Nine justices in Heller came to the opposite conclusion. They read the majority opinion in Heller to mean that Open Carry is the right guaranteed by the Constitution and that concealed carry can be prohibited.

    Since Heller was decided in 2008 there have been literally hundreds of criminal and civil concealed carry cases, both state and Federal, which read the Heller decision to mean exactly what it said - concealed carry is not a right.

    And then along comes O'Scannlain and his mini-me saying that the High Court meant the opposite of what it actually said and that everybody else who took Justice Scalia to mean what he actually said is wrong. Did O'Scannlain explain why? No! Did O'Scannlain cite any other Federal or state court to support his conclusion? No!

    O'Scannlain merely sprinkled some pixie dust and with a wave of his magic wand invalidated the fundamental right to Open Carry in favor of the unprotected right to concealed carry.

    Sorry, but we have too much of that kind of "material" currently on SCOTUS. We don't need anymore.

    P.S. I didn't bother to respond to the rest of your post as it did not bother to respond to the specifics of Attorney General Harris' petition.



    Charles Nichols - President of California Right To Carry

    "[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2816.

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    Quote Originally Posted by California Right To Carry View Post
    First of all it is Judge not Justice O'Scannlain.

    What O'Scannlain did was to deliberately ignore the binding prior panel decision in US v. Chovan and applied his "substantial burden" framework which had been vacated by an en banc panel in Nordyke.

    His conclusion that Open Carry can be banned if concealed carry is available speaks for itself. Nine justices in Heller came to the opposite conclusion. They read the majority opinion in Heller to mean that Open Carry is the right guaranteed by the Constitution and that concealed carry can be prohibited.

    Since Heller was decided in 2008 there have been literally hundreds of criminal and civil concealed carry cases, both state and Federal, which read the Heller decision to mean exactly what it said - concealed carry is not a right.

    And then along comes O'Scannlain and his mini-me saying that the High Court meant the opposite of what it actually said and that everybody else who took Justice Scalia to mean what he actually said is wrong. Did O'Scannlain explain why? No! Did O'Scannlain cite any other Federal or state court to support his conclusion? No!

    O'Scannlain merely sprinkled some pixie dust and with a wave of his magic wand invalidated the fundamental right to Open Carry in favor of the unprotected right to concealed carry.

    Sorry, but we have too much of that kind of "material" currently on SCOTUS. We don't need anymore.

    P.S. I didn't bother to respond to the rest of your post as it did not bother to respond to the specifics of Attorney General Harris' petition.



    Charles Nichols - President of California Right To Carry

    "[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2816.
    I can appreciate your experience and the time you've taken to respond.

    My reading of JUDGE O'Scannlain's opinion is that because carry of any sort is an as-yet undefined-by-the-SCOTUS right AND the CA legislature has outlawed OC while providing a framework for the grant of CC licenses which in all but one respect passes Constitutional muster...the unconstitutional aspect of "good cause" is invalid as applied, because it is really a ban.

    i know you want to argue the CC/OC divide but O'Scannlain allowed the state to express its "preference" for CC...and in so doing foreclosed its effective ban on CC. this line of reasoning is perfectly legit if you ask me. time/place/manner restrictions...and I believe OC is a "manner."

    i wish you luck with your litigation, but I am not confident that OC will return to CA.


    ASSUMING YOU ARE CORRECT...that CC is not protected and that the judge just blew it...then where does that leave Californians???????? How do you explain the permitting process???? The opinion makes the only possible sense of the issue that doesn't lay waste to statutes that were not up for argument.

    if the state had banned CC but required good cause for OC license, we'd be in the position of having OC recognized as the right protected and the good cause requirement would fail.

    of course, none of this respects that this wasn't a case about OC vs. CC...that's YOUR case. this was a case of whether one must be forced to show good cause to bear arms. the answer appears to be a resounding "NOT WHEN IT'S THE ONLY OPTION TO CARRY AT ALL."
    Last edited by CT Barfly; 03-03-2014 at 07:59 PM.

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    Quote Originally Posted by CT Barfly View Post
    of course, none of this respects that this wasn't a case about OC vs. CC...that's YOUR case. this was a case of whether one must be forced to show good cause to bear arms. the answer appears to be a resounding "NOT WHEN IT'S THE ONLY OPTION TO CARRY AT ALL."
    Two judges on the 9th Circuit court of appeals created a split between the 9th Circuit and the 1st, 2nd, 3rd. 4th, 5th, 7th and 10th Federal Circuit Courts of Appeal.

    You will notice that nowhere in the Peruta decision did the majority cite any state or Federal case which supports its reading that a state can choose concealed carry over Open Carry and the majority refused to respond to the minority calling them out on this fact.

    Judge O'Scannlain either purposely wrote a decision to create a split among the circuits and to create an in circuit split knowing it would force an en banc rehearing or his arrogance knows no bounds. He knew he was bound by the prior 3 judge panel decision in US v. Chovan. Instead, he resurrected his vacated "substantial burden" framework and applied it to Peruta as if it were on steroids.

    In any event, a decision from the district court in my case is due within a month or so and even the AG says Peruta is not binding on my case. So let us wait and see what the courts have to say in an actual challenge to a state law instead of a lone Sheriff's policy, which is what was at issue in Peruta.


    Charles Nichols - President of California Right To Carry

    "[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2816.

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    Quote Originally Posted by CT Barfly View Post
    I can appreciate your experience and the time you've taken to respond.

    My reading of JUDGE O'Scannlain's opinion is that because carry of any sort is an as-yet undefined-by-the-SCOTUS right AND the CA legislature has outlawed OC while providing a framework for the grant of CC licenses which in all but one respect passes Constitutional muster...the unconstitutional aspect of "good cause" is invalid as applied, because it is really a ban.

    i know you want to argue the CC/OC divide but O'Scannlain allowed the state to express its "preference" for CC...and in so doing foreclosed its effective ban on CC. this line of reasoning is perfectly legit if you ask me. time/place/manner restrictions...and I believe OC is a "manner."

    i wish you luck with your litigation, but I am not confident that OC will return to CA.


    ASSUMING YOU ARE CORRECT...that CC is not protected and that the judge just blew it...then where does that leave Californians???????? How do you explain the permitting process???? The opinion makes the only possible sense of the issue that doesn't lay waste to statutes that were not up for argument.

    if the state had banned CC but required good cause for OC license, we'd be in the position of having OC recognized as the right protected and the good cause requirement would fail.

    of course, none of this respects that this wasn't a case about OC vs. CC...that's YOUR case. this was a case of whether one must be forced to show good cause to bear arms. the answer appears to be a resounding "NOT WHEN IT'S THE ONLY OPTION TO CARRY AT ALL."
    The state HAS banned CC. The law is written to say that CCing is illegal with few oprions in which it's 'permissible'. But if you have to ask permission to do something then it's no longer being recognized as a Right, it's now a privilege.

    Puerta did not recognize anything as a Right, they simply said that since all forms of carry are illegal but a permit process exists for CC they cannot use arbitrary discretion in approving those permits. But this does not mean you have a Right to Carry yet, bit means the state has to allow you to carry if you ASK to carry.

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    Quote Originally Posted by California Right To Carry View Post
    Two judges on the 9th Circuit court of appeals created a split between the 9th Circuit and the 1st, 2nd, 3rd. 4th, 5th, 7th and 10th Federal Circuit Courts of Appeal.

    You will notice that nowhere in the Peruta decision did the majority cite any state or Federal case which supports its reading that a state can choose concealed carry over Open Carry and the majority refused to respond to the minority calling them out on this fact.

    Judge O'Scannlain either purposely wrote a decision to create a split among the circuits and to create an in circuit split knowing it would force an en banc rehearing or his arrogance knows no bounds. He knew he was bound by the prior 3 judge panel decision in US v. Chovan. Instead, he resurrected his vacated "substantial burden" framework and applied it to Peruta as if it were on steroids.

    In any event, a decision from the district court in my case is due within a month or so and even the AG says Peruta is not binding on my case. So let us wait and see what the courts have to say in an actual challenge to a state law instead of a lone Sheriff's policy, which is what was at issue in Peruta.


    Charles Nichols - President of California Right To Carry

    "[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2816.
    first of all, majority opinions need not address all of the dissenting theories...it's a dissent for a reason, lack of votes.

    the opinion showed deference to the legislature's preference for CC (which is what the legislature wants and what many anti-gun opinions do).

    the opinion then held that the legislature cannot at once ban OC then limit CC so that it functions as an effective ban...that's prudent if you ask me. Yes, yes, I know...too bad about OC.

    IMHO, O'Scannlain did very little to rock the boat. There are only two options, OC and CC. The legislature cannot ban both. The legislature banned one and had a framework for the other which went too far. O'Scannlain dialed that framework back just enough to pass constitutional muster.

    What SHOULD he have held?

    Are legislatures not empowered to make laws regarding time/place/manner of carry? what about schools? banks? parks? is the OC/CC thing not a manner of carry question?
    Last edited by CT Barfly; 03-05-2014 at 07:52 PM.

  23. #23
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    Quote Originally Posted by CT Barfly View Post
    first of all, majority opinions need not address all of the dissenting theories...it's a dissent for a reason, lack of votes.

    the opinion showed deference to the legislature's preference for CC (which is what the legislature wants and what many anti-gun opinions do).

    the opinion then held that the legislature cannot at once ban OC then limit CC so that it functions as an effective ban...that's prudent if you ask me. Yes, yes, I know...too bad about OC.

    IMHO, O'Scannlain did very little to rock the boat. There are only two options, OC and CC. The legislature cannot ban both. The legislature banned one and had a framework for the other which went too far. O'Scannlain dialed that framework back just enough to pass constitutional muster.


    First of all, the California legislature has not shown a preference for concealed carry. By default, concealed carry is prohibited throughout the entire state of California, even in the home. Concealed carry is allowed only by exception. Conversely, Open Carry by default is lawful throughout the entire state except where it is prohibited or "regulated."

    But that wasn't the only error made in Peruta and I won't list them all but the foremost error is the Court's conclusion that when Scalia said that Open Carry is the right guaranteed by the Constitution and that concealed carry can be prohibited Scalia really meant the opposite of what he said. And this was despite all nine justices of the US Supreme Court reading Scalia's decision to say that concealed carry can be prohibited. These two judges not only created a split with every Federal court of appeals which has had a concealed carry case come before it, the court "split" with every single state appellate court (and the District of Columbia) which read the Heller decision to say that concealed carry can be prohibited.

    Quote Originally Posted by CT Barfly View Post
    What SHOULD he have held?
    O’Scannlain and Callahan should have held that three US Supreme Court decisions and state court decisions going back nearly 200 years all meant what they said. That Open Carry is the right guaranteed by the Constitution and concealed carry can be prohibited except for travelers while on a journey.

    Before you Open Carry opponents start pouring the Champagne a reminder. Even absent a Second Amendment, the 1967 Black Panther Loaded Open Carry ban will never survive my 14th Amendment challenge. The 9th Circuit Court of Appeals simply isn't going to allow race to justify a criminal law no matter how much the individual judges may hate Open Carry.

    The Loaded Open Carry ban will be overturned, the Peruta and Richards decisions become moot and the ball is tossed into the court of the California legislature to try and figure out what they are going to do next.


    Charles Nichols - President of California Right To Carry

    "[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2816.

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    Maybe they'll rename the state and say that the decision does not apply to them...

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    My mistake, I thought OC was banned in CA...or at least unloaded OC. The Peruta opinion seems to think OC is banned, too. Are you saying it's lawful under current statute?

    What's the endgame here?

    I'm of the opinion that carry is a right. I also agree that Mulford was race-based.

    Saying that Peruta is worthy of reversal is maybe a bit more than I would agree with...because it would leave "good cause" intact, would it not?
    Last edited by CT Barfly; 03-05-2014 at 08:50 PM.

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