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Thread: Peruta's double edged sword

  1. #1
    Regular Member California Right To Carry's Avatar
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    Peruta's double edged sword

    There was a line in the Peruta v. San Diego opinion which the opponents of Open Carry hailed at the time which has now turned around to bite them in the ass.

    "To put it simply, concealed carry per se does not fall outside the scope of the right to bear arms; but insistence upon a particular mode of carry does." Peruta v. County of San Diego, 742 F. 3d 1144 - Court of Appeals, 9th Circuit (2014) at 1172-1173.

    In the SAF/CalGuns challenge to California's handgun roster the court had this to say:

    "The court finds plaintiffs’ “[i]nsistence upon...particular” handguns to “fall outside the scope of the right to bear arms.” Peruta, 742 F.3d at 1172..The court also rejects plaintiffs’ contention that “particular unrostered handguns are constitutionally-protected [sic]”...The Second Amendment does not protect guns, but rather conduct." Pena v. Lindley No. 2:09-CV-01185-KJM-CKD (E.D. California Feb. 25, 2015) ORDER. pg 22.

    Alan Gura now finds himself in a Catch-22 situation. His concealed carry 9th Circuit lawsuit, Richards v. Prieto, was entirely dependent upon the Peruta decision. On appeal, Gura must now argue that Peruta was wrong.

    The Peruta (and now Pena) "insistence upon" framework is something the Peruta Court made up out of thin air and, were it allowed to stand, could be used to derail every Second Amendment lawsuit (in reality, any civil rights lawsuit) because every Federal civil rights lawsuit must "insist upon" some sort of relief to satisfy the Case or Controversy requirement for Article III standing.

    Under the Peruta framework, the State of California could ban the Bible and a person could not challenge the ban because of his "insistence upon" reading a particular book.

    Nonetheless, the Kool-Aid drinkers will continue to praise the Peruta decision, whereas my Open Carry lawsuit, thanks to District Court Judge S. James Otero, directly challenges the Peruta decision.
    Concealed carry is of no use to me, I don't carry a purse.

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

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    Regular Member EMNofSeattle's Avatar
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    Someone must still be bitter he's a nobody and others are making substantial gains...
    they love our milk and honey, but they preach about some other way of living, when they're running down my country man they're walkin' on the fightin side of me

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    Regular Member California Right To Carry's Avatar
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    Concealed carry is of no use to me, I don't carry a purse.

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

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    Quote Originally Posted by EMNofSeattle View Post
    Someone must still be bitter he's a nobody and others are making substantial gains...
    Sorry to say it but the "substantial gains" is loosing CCW court case after ccw court case. The courts have been extremely clear since about 1810. Open carry is the preferred MODE of carrying, while Concealed carry can be banned because it is traditionally that of criminals and assassins. (Heller 2008, Mcdonald 2010 gives a huge history lesson on this).

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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by California Right To Carry View Post
    ... whereas my Open Carry lawsuit, thanks to District Court Judge S. James Otero, directly challenges the Peruta decision.
    Where in the process is your suit?

    Thanks and good luck to you.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Quote Originally Posted by OC for ME View Post
    Where in the process is your suit?

    Thanks and good luck to you.
    Correction: It is the Appellees (Governor Brown and Attorney General Harris) who have 14 days from the granting of the en banc petition in Richards v. Prieto to file a status and motion for a further stay or other relief. Barring a subsequent stay, my Appellant Opening Brief is due on May 5, 2014. I suspect that if the Appellees ask for another stay that it will be granted. .

    I fully expect that California Attorney General Harris will file yet another motion to stay my case pending an en banc decision in Richards and Peruta. I will shortly be filing a petition for my appeal to be initially heard en banc which, hopefully, is beyond the purview of the Appellate Commissioner to stay. We'll see. I had hoped to have my appeal heard alongside the en banc of Peruta and Richards but given the accelerated en banc schedule, I don't think that is now possible.

    In any event, only the hard core Kool-Aid drinkers think that Peruta/Richards will survive en banc. Peruta's attorney doesn't think it will and as a concealed carry case, and one which does not create a circuit split when Peruta loses, it will be denied cert by SCOTUS. When Peruta and Richards lose en banc, all of the other concealed carry cases currently pending before the 9th Circuit Court of Appeals as well as those working their way on up will likewise fail.

    This will leave my Open Carry case as the only one left standing in the 9th and the only vehicle in the 9th within which to restore the Second Amendment to California.

    I frequently update the status of my California Open Carry case at my website.

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    "{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 (2008) at 2809

    Concealed carry is of no use to me, I don't carry a purse. Besides, Open Carry is the right guaranteed by the Constitution, concealed carry can be banned.

    http://CaliforniaRightToCarry.org

    "[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons..." Robertson v. Baldwin, 165 US 275 - Supreme Court (1897) at 282.

    "In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the "natural right of self-defence" and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right...Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had 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 (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. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. 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. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251..." District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816
    Last edited by California Right To Carry; 04-02-2015 at 07:48 PM. Reason: Corrected due date for opening brief
    Concealed carry is of no use to me, I don't carry a purse.

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

  7. #7
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    Quote Originally Posted by California Right To Carry View Post
    My case had been stayed since January 21st pending a decision on whether or not to grant the en banc petition in the related case of Richards v. Prieto. The Richards' en banc petition was granted concurrently with the en banc petition in Peruta and so technically the stay in my case is now lifted and my Opening Brief is due 14 days from March 26th.

    I fully expect that California Attorney General Harris will file yet another motion to stay my case pending an en banc decision in Richards and Peruta. I will shortly be filing a petition for my appeal to be initially heard en banc which, hopefully, is beyond the purview of the Appellate Commissioner to stay. We'll see. I had hoped to have my appeal heard alongside the en banc of Peruta and Richards but given the accelerated en banc schedule, I don't think that is now possible.

    In any event, only the hard core Kool-Aid drinkers think that Peruta/Richards will survive en banc. Peruta's attorney doesn't think it will and as a concealed carry case, and one which does not create a circuit split when Peruta loses, it will be denied cert by SCOTUS. When Peruta and Richards lose en banc, all of the other concealed carry cases currently pending before the 9th Circuit Court of Appeals as well as those working their way on up will likewise fail.

    This will leave my Open Carry case as the only one left standing in the 9th and the only vehicle in the 9th within which to restore the Second Amendment to California.

    I frequently update the status of my California Open Carry case at my website.

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    "{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 (2008) at 2809

    Concealed carry is of no use to me, I don't carry a purse. Besides, Open Carry is the right guaranteed by the Constitution, concealed carry can be banned.

    http://CaliforniaRightToCarry.org

    "[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons..." Robertson v. Baldwin, 165 US 275 - Supreme Court (1897) at 282.

    "In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the "natural right of self-defence" and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right...Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had 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 (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. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. 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. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251..." District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816
    Didn't know this was possible, unless I somehow missed that your case had already been decided by a 3 judge panel? If so it would be great if you could be heard alongside the others. There would be no wiggle room for the state.

  8. #8
    Regular Member California Right To Carry's Avatar
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    Quote Originally Posted by press1280 View Post
    Didn't know this was possible, unless I somehow missed that your case had already been decided by a 3 judge panel? If so it would be great if you could be heard alongside the others. There would be no wiggle room for the state.
    No, my case has not already been heard by a 3 judge panel. Prior to the appellees filing their reply brief I can file a Rule 35 petition to have my appeal heard initially en banc. Interested readers can find the FRAP Rules for the 9th Circuit at this link. Fortunately, the requirements under FRAP 35(a) are now easier to meet given the en banc order in Richards and Peruta not to mention because of the other bizarre holdings made by the district court judge which conflict directly with both 9th Circuit and SCOTUS precedents as well as California case law.
    Concealed carry is of no use to me, I don't carry a purse.

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

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