Peruta v. San Diego en banc petitions filed

CT Barfly said:

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.

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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.

CT Barfly said:

What SHOULD he have held?

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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.

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

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?

The Peruta en banc procedure has begun...

The Peruta en banc procedure has begun a few days earlier than I expected. The Court has approved a former 9th CCA law clerk to represent Attorney General Harris and the Court has has ordered:

"Each party is each directed to file a response of no more than 6,000 words addressing the pending motions to intervene filed with this Court on February 27, 2014. Each response shall address:
1) Motion to Intervene by the State of California, 2) Motion for Leave to Intervene by the Brady Campaign to Prevent Gun Violence, and 3) Petition for Rehearing En Banc by Amici Curiae California Police Chiefs’ Association and California Peace Officers’ Association insofar as the Petition is a motion to intervene. See p. 2, n.2. The responses shall be filed within 21 days of this order."

Is anyone really surprised?

P.S. Chovan filed a petition for an en banc rehearing back on the 18th and, unlike Peruta, the court still has not requested any response.


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.

California Right To Carry said:

The Peruta en banc procedure has begun a few days earlier than I expected. The Court has approved a former 9th CCA law clerk to represent Attorney General Harris and the Court has has ordered:

"Each party is each directed to file a response of no more than 6,000 words addressing the pending motions to intervene filed with this Court on February 27, 2014. Each response shall address:
1) Motion to Intervene by the State of California, 2) Motion for Leave to Intervene by the Brady Campaign to Prevent Gun Violence, and 3) Petition for Rehearing En Banc by Amici Curiae California Police Chiefs’ Association and California Peace Officers’ Association insofar as the Petition is a motion to intervene. See p. 2, n.2. The responses shall be filed within 21 days of this order."

Is anyone really surprised?

P.S. Chovan filed a petition for an en banc rehearing back on the 18th and, unlike Peruta, the court still has not requested any response.


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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Isn't March 7th the last day for the Court to take it on its own?

Unanimous panel reversed/remanded Richards v. Prieto citing the holding in Peruta and rejecting defendants' attempts to distinguish.

CT Barfly said:

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.

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My endgame is a permanent injunction against California's Loaded Open Carry ban, the ban on openly carrying unloaded handguns and the ban on openly carrying unloaded firearms that are not handguns. If and when I am successful, Attorney General Harris gets to go home and I move on to other things.

These three bans have various exemptions, most notably hunters, which are completely exempt from the bans either while hunting or while traveling to or from their hunting expedition. A hunter can walk down main street in an incorporated city openly carrying a loaded and unloaded firearm even if hunting is banned in that city so long as he is traveling to or from his hunting expedition. If I am walking right next to him openly carrying a loaded or unloaded firearm not to hunt but for self-defense then I am committing a crime under the current law.

CT Barfly said:

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?

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"Good cause" is a provision of the CCW statutes. California does not provide for licenses to openly carry long guns for the purpose of self-defense and licenses to openly carry loaded handguns are only theoretically available in counties with a population of fewer than 200,000 people, are only available to residents of those counties, and are only valid in those counties. In short, 94% of California's population lives in counties where CCWs for the Open Carry of handguns simply do not exist. In short, "Good cause" for Open Carry permits is irrelevant because for all intents and purposes, the penal code does not provide for Open Carry permits.

Loaded Open Carry is legal everywhere in the state, even those places where the mere possession of a firearm is illegal (e.g., courthouses) provided one finds himself in "grave, immediate danger." One of my contentions in my lawsuit is that is an unconstitutionally high threshold and, oh by the way, it is illegal to even possess any firearm for the purpose of self-defense (but not for hunters, bill collectors, and 100 other other occupations or activities) until one finds himself in "grave, immediate danger."

There are many unloaded open carry exemptions for incorporated cities and unincorporated county territory where the discharge of firearms is prohibited. None of those exemptions require a permit.

Peruta is worthy of reversal even if I were a concealed carry proponent opposed to Open Carry. Judicial decisions which are based on pixie dust and a wave of the judicial wand are obscene.


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.

CT Barfly said:

Isn't March 7th the last day for the Court to take it on its own?

Unanimous panel reversed/remanded Richards v. Prieto citing the holding in Peruta and rejecting defendants' attempts to distinguish.

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No, you are confusing the date when the mandate in Peruta would normally have issued. The mandate has been stayed until the Court decides whether or not to rehear the case en banc. That could take five or six months.

"Unanimous" is misleading. Judges on 3 judge panels are required to follow prior 3 judge decisions until they are reversed either en banc or by the US Supreme Court even if they disagree with the prior 3 judge panel decision.

Which is another error made in Peruta. Richards was the first case taken under submission for a decision, followed by Peruta and then Baker. The first case taken under submission for a decision is the controlling case unless it is declared moot or otherwise dismissed as was Mehl v. Blanas.

The Richard's decision was supposed to be controlling of Peruta. That is if US v. Chovan hadn't beat every other case to the punch. US v. Chovan is the controlling case for all Second Amendment challenges as it was taken under submission for a decision first and it was decided first. Peruta created an in circuit split (as well as splits between the sister circuits). An in circuit split is reason enough for an en banc rehearing because district court judges have no idea whether to apply Chovan's 7th Circuit historical inquiry framework or Peruta's Second Circuit "substantial burden" test.

thanks, i'll now wait for my head to stop spinning.

Much has happened...

Much has happened since the last post.

The short version is that it is all but certain that there will be an en banc hearing of Peruta and/or Richards. Peruta created an in-circuit split with US v. Chovan. Last week Chovan's en banc petition was denied without a single judge requesting a vote to rehear the case. That solidifies Chovan's place as being the binding prior precedent that Peruta was supposed to have followed, but didn't.

The NRA/CRPA did not oppose the Attorney General's motion to intervene in Peruta. That phase has been fully briefed.

The en banc petitions in Richards have been fully briefed. Baker has been directed to file a response to the petition for rehearing en banc by May 13th at which point that phase will be complete. Note, no response was filed in Chovan. Responses to en banc petitions are optional unless the court directs a response as was done here. This is another less than subtle hint that Peruta and/or Richards will be reheard.

I've created a chart of the 27 judges in the "en banc pool" from which 10 will be randomly selected for any en banc panel.


Charles Nichols – President of California Right To Carry
http://CaliforniaRightToCarry.org


"[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.