And we well see if you can foretell the future.
A year ago I created this table of active 9th Circuit Court judges who constitute the "en banc pool" of judges from whom ten will be randomly selected to sit on the en banc panel alongside Chief Judge Thomas. Judge Thomas wrote the dissent in Peruta. I've since updated the table to reflect the most recent addition to the en banc pool and the last published 2A decision from the 9th. Having read all of the decisions, published and unpublished, I do not see any indication that there are six judges who would affirm the now vacated Peruta appellate decision, notwithstanding the statistical improbability of all six judges (if indeed there are six) being chosen to sit on the en banc panel. We will know which judges who will sit on the en banc panel along with Chief Judge Thomas on Monday, June 8th.
If you've read the merit briefs in Peruta and Richards as well as the brief of the State of California then you know that Peruta/Richards have disavowed any Open Carry challenge or sought any relief which could even be liberally construed that they would openly carry a handgun if that were the only manner of carry available to them. Peruta and Richards, despite what others would claim, are purely concealed carry challenges. More so with the Richards plaintiffs as they could have applied for handgun Open Carry licenses pursuant to the same concealed carry statute but instead applied for licenses to carry concealed. Peruta and Richards, of course, never challenged the provision of the state statute that limited these licenses to counties with a population of fewer than 200,000 people.
With that in mind, I've distilled Chief Judge Thomas' dissent in Peruta which nobody here should be surprised if it reads like the inevitable en banc decision in Peruta/Richards. Peruta/Richards will lose and every other concealed carry case in this circuit will fall like a row of dominoes leaving my Open Carry case as the last one standing:
"Heller's pronouncement is consistent with the Supreme Court's prior observation that "the right of the people to keep and bear arms ... is not infringed by laws prohibiting the carrying of concealed weapons." Robertson v. Baldwin, 165 U.S. 275, 281-82, 17 S.Ct. 326, 41 L.Ed. 715 (1897)." Id at 1179
"We are not asked in this case [Peruta] to determine the reach of the Second Amendment outside the home or to evaluate the entirety of California's handgun regulatory scheme. Rather, the narrow questions presented in this case are: (1) Does the scope of the Second Amendment extend to protect the concealed carrying of handguns in public, and (2) if so, does San Diego County's policy of allowing public concealed weapon carry upon a showing of good cause unconstitutionally infringe on that right?" Id at 1180.
"The majority frames the question as "whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense." This is certainly an important issue, but it is not the question we are called upon to answer. The Plaintiffs are not seeking a general license to carry firearms in public for self-defense — they are seeking a license to carry concealed firearms in public." Id at 1181
"Although all the nineteenth-century cases cited by the majority cautioned against restrictions on the open carrying of weapons, none of them — except the discredited, outlier Bliss — suggests that restrictions on carrying concealed weapons implicate the Second Amendment. See Chandler, 1 La.Ann. at 490; Nunn, 1 Ga. at 251; Reid, 1 Ala. at 616-17. And nothing in these cases or Chase's Blackstone even hints that a restriction on carrying concealed weapons would become invalid if restrictions were placed on open carry. Rather, they suggest that restrictions on concealed carry are always valid, while there are limits to restrictions on open carry."
This last sentence by Chief Judge Thomas sums it up nicely:
***"[T]hey [the citations in Heller, particularly Nunn and Chandler] suggest that restrictions on concealed carry are always valid, while there are limits to restrictions on open carry."***
Unlike the concealed carry lawsuits which would have resulted in people being able to carry loaded firearms in what Heller said were "sensitive" places such as schools and government buildings, my lawsuit does not seek to carry firearms in sensitive places.
The Peruta/Richards appeals will lose. They will file cert petitions and SCOTUS will deny cert just as it has done in every other concealed carry lawsuit.
And lest we forget, unlike Peruta/Richards, I have an in-home nexus to my lawsuit as well as Constitutional challenges unrelated to the Second Amendment which, should the 9th Circuit rule against me, would create splits with every Federal circuit.
And we should all know by now that SCOTUS does not grant cert petitions to correct mistakes of law, SCOTUS grants cert petitions to resolve circuit splits. When Peruta/Richards lose, there will be no circuit split, not even with the 7th Circuit which, despite striking down laws which applied to BOTH concealed and Open Carry, clearly said that concealed carry could be prohibited as per the Heller decision.
P.S. In addition to being able to watch oral arguments live on the 9th Circuit YouTube channel and watch an archived version within 24 hours, both C-Span and Fox News have been granted permission to video the oral arguments for later broadcast.
NRA lawyer Paul Clement will be arguing on behalf of the Peruta plaintiffs.
San Diego Sheriff Gore has ceded his time to the Solicitor General for the State of California - Edward C. DuMont
SAF/CalGuns lawyer Alan Gura will be arguing for the Richards plaintiffs.
Sheriff Prieto's lawyer is John Whitesides who has ceded half of his 15 minutes to the State of California.
Note, although the state is being allowed to participate in oral arguments it is unlikely that a decision will be made on the state's motion to intervene until after the en banc decision is published. If the en banc court takes my Amicus brief to heart then Peruta will be remanded back to the district court to challenge the laws they argued to uphold (California's 1967 Loaded Open Carry ban and the California Gun-Free School Zone Act of 1995) and the question of intervention will become moot. The Richards Complaint is incapable of being salvaged for a remand.
The state was not given any time to argue its case, it left that decision up to the defendants which supports my prediction that the en banc hearing will be narrowly limited to the question of concealed carry and not the scope of the right to bear arms in public.
Last edited by California Right To Carry; 06-04-2015 at 01:42 PM.
And we well see if you can foretell the future.
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