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Thread: Peruta v. San Diego / Richards v. Prieto En Banc Panel Revealed

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    Peruta v. San Diego / Richards v. Prieto En Banc Panel Revealed

    Details are at my website here. It is an interesting mix. We have two judges who gave us the two-step historical inquiry framework in US v. Chovan which is used by most of the Federal Circuits and we have one of the judges from the now vacated three judge panel decision in Peruta in which Chief Judge Thomas, who will be presiding over the en banc panel, wrote the dissent.

    For a table of Second Amendment cases decided by the judges on the en banc panel, click here.

    I don't think that there are six judges in the entire 9th Circuit who would vote in favor of Peruta/Richards. Six votes are needed for a decision. We now know who the eleven judges are who will decide the case. If you think that there are six judges who will vote for Peruta/Richards then don't be shy in naming them or stingy about citing excerpts from their past decisions which lead you to that conclusion.

    Here are my predictions for how each of the Peruta/Richards en banc judges will vote.

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    Last edited by California Right To Carry; 06-08-2015 at 02:25 PM.
    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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    Accomplished Advocate BB62's Avatar
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    Thanks for the update.

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    Campaign Veteran deepdiver's Avatar
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    Yes, thanks for keeping us updated.
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    Quote Originally Posted by California Right To Carry View Post
    Details are at my website here. It is an interesting mix. We have two judges who gave us the two-step historical inquiry framework in US v. Chovan which is used by most of the Federal Circuits and we have one of the judges from the now vacated three judge panel decision in Peruta in which Chief Judge Thomas, who will be presiding over the en banc panel, wrote the dissent.

    For a table of Second Amendment cases decided by the judges on the en banc panel, click here.

    I don't think that there are six judges in the entire 9th Circuit who would vote in favor of Peruta/Richards. Six votes are needed for a decision. We now know who the eleven judges are who will decide the case. If you think that there are six judges who will vote for Peruta/Richards then don't be shy in naming them or stingy about citing excerpts from their past decisions which lead you to that conclusion.

    Here are my predictions for how each of the Peruta/Richards en banc judges will vote.

    Click image for larger version. 

Name:	NRA Suckers.jpg 
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    I don't see the votes there either. The question becomes what form does the opinion take. Will they simply say this is a CCW challenge only and you lose (leaving OC challenge for another day)? Or, will it be a cut and paste of Kachalsky/Drake/Woollard-basically encompassing all forms of carry, we assume it exists outside the home, but better for local LEO to determine who carries, yad yada yada?
    Thomas' dissent seems to leave the OC challenge for another day but I keep thinking it's a red herring, as I see it unlikely he'd actually be steering the court toward instituting OC in CA. Think Lucy with the football in Charlie Brown.

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    Quote Originally Posted by press1280 View Post
    I don't see the votes there either. The question becomes what form does the opinion take. Will they simply say this is a CCW challenge only and you lose (leaving OC challenge for another day)? Or, will it be a cut and paste of Kachalsky/Drake/Woollard-basically encompassing all forms of carry, we assume it exists outside the home, but better for local LEO to determine who carries, yad yada yada?
    Thomas' dissent seems to leave the OC challenge for another day but I keep thinking it's a red herring, as I see it unlikely he'd actually be steering the court toward instituting OC in CA. Think Lucy with the football in Charlie Brown.
    If one assumes that the en banc panel is aware of my Open Carry appeal and if I were a judge sitting on the panel then I would follow Judge Thomas' lead and carbon copy his dissent. I exchanged a couple of emails with Sheriff Prieto's attorney and he is of the opinion that it is procedurally impossible for the plaintiffs to try and shoehorn Open Carry into the case at this late stage. That was tried with the Peterson v. Martinez concealed carry lawsuit out of the 10th Circuit and failed.

    By following Chief Judge Thomas' lead and treating Peruta/Richards as concealed carry cases, which is what the State of California argues that they are in its brief, then the Plaintiffs lose and there is no circuit split. If the dissent in Jackson v. San Francisco told us anything it told us that SCOTUS isn't going to hear a Second Amendment case until there is a circuit split.

    However, if I lose my Open Carry appeal then a Second Amendment circuit split opens between the 7th and 9th Circuits. Judge Poser wrote in his decision striking down Illinois' carry bans that:


    "[A] state may be able to require "open carry" that is, require persons who carry a gun in public to carry it in plain view rather than concealed. See District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783; James Bishop, Note, "Hidden or on the Hip: The Right(s) to Carry After Heller," 97 Cornell L.Rev. 907, 920-21 (2012)." Moore v. Madigan, 702 F. 3d 933 - Court of Appeals, 7th Circuit (2012) at 938.


    Obviously, if a state can require that firearms be carried in plain view rather than concealed then concealed carry can be prohibited and if concealed carry can be prohibited then concealed carry is not a right, fundamental or otherwise.

    However, my Open Carry lawsuit is not limited to the Second Amendment and there are sufficient grounds to strike down the Open Carry bans at issue in my appeal without the court deciding on the Second Amendment. The 1967 ban on openly carrying loaded firearms was enacted solely because of the Black Panthers and the legislators in 2011-2012 repeatedly said that one of the reasons for enacting the unloaded Open Carry bans was to close the loopholes in the 1967 ban which tars the unloaded Open Carry bans with the same racist brush.

    The court in my case can simply strike down the three Open Carry bans on 14th Amendment racial grounds.

    But despite being the Chief Judge, the Chief Judge has only one vote. If a majority of judges vote against Peruta/Richards AND want to write a decision like Woollard which basically said that the Heller decision does not apply in public but if it does the challenged law is constitutional then that is what we will have.
    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 California Right To Carry View Post
    If one assumes that the en banc panel is aware of my Open Carry appeal and if I were a judge sitting on the panel then I would follow Judge Thomas' lead and carbon copy his dissent. I exchanged a couple of emails with Sheriff Prieto's attorney and he is of the opinion that it is procedurally impossible for the plaintiffs to try and shoehorn Open Carry into the case at this late stage. That was tried with the Peterson v. Martinez concealed carry lawsuit out of the 10th Circuit and failed.

    By following Chief Judge Thomas' lead and treating Peruta/Richards as concealed carry cases, which is what the State of California argues that they are in its brief, then the Plaintiffs lose and there is no circuit split. If the dissent in Jackson v. San Francisco told us anything it told us that SCOTUS isn't going to hear a Second Amendment case until there is a circuit split.


    However, if I lose my Open Carry appeal then a Second Amendment circuit split opens between the 7th and 9th Circuits. Judge Poser wrote in his decision striking down Illinois' carry bans that:


    "[A] state may be able to require "open carry" that is, require persons who carry a gun in public to carry it in plain view rather than concealed. See District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783; James Bishop, Note, "Hidden or on the Hip: The Right(s) to Carry After Heller," 97 Cornell L.Rev. 907, 920-21 (2012)." Moore v. Madigan, 702 F. 3d 933 - Court of Appeals, 7th Circuit (2012) at 938.

    Obviously, if a state can require that firearms be carried in plain view rather than concealed then concealed carry can be prohibited and if concealed carry can be prohibited then concealed carry is not a right, fundamental or otherwise.

    However, my Open Carry lawsuit is not limited to the Second Amendment and there are sufficient grounds to strike down the Open Carry bans at issue in my appeal without the court deciding on the Second Amendment. The 1967 ban on openly carrying loaded firearms was enacted solely because of the Black Panthers and the legislators in 2011-2012 repeatedly said that one of the reasons for enacting the unloaded Open Carry bans was to close the loopholes in the 1967 ban which tars the unloaded Open Carry bans with the same racist brush.

    The court in my case can simply strike down the three Open Carry bans on 14th Amendment racial grounds.

    But despite being the Chief Judge, the Chief Judge has only one vote. If a majority of judges vote against Peruta/Richards AND want to write a decision like Woollard which basically said that the Heller decision does not apply in public but if it does the challenged law is constitutional then that is what we will have.
    Getting a split with Moore will be difficult; they'll just say it was a total carry ban, which isn't the case in CA. You would have a split between CA9 and the 19th century state courts (Nunn, Chandler, Reid,exc.). It would be interesting if SCOTUS viewed it as a legitimate split, or, would they want the split to be post-Heller?

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    Quote Originally Posted by press1280 View Post
    Getting a split with Moore will be difficult; they'll just say it was a total carry ban, which isn't the case in CA. You would have a split between CA9 and the 19th century state courts (Nunn, Chandler, Reid,exc.). It would be interesting if SCOTUS viewed it as a legitimate split, or, would they want the split to be post-Heller?
    The split with Moore is a clear split.

    California copied and pasted its 1967 ban from Illinois. The 1967 California statute, like the Illinois statute struck down in Moore, does not differentiate between concealed and Open Carry. An advantage the 9th Circuit has in my lawsuit that the 7th Circuit didn't have in Moore is that California has a separate statute criminalizing concealed carry. When Posner struck down the Illinois ban on carrying loaded firearms (and the separate ban on carrying unloaded firearms) his injunction would have legalized concealed and open carry. If the 9th Circuit issues an injunction against PC 25850 and the two unloaded Open Carry bans, the prohibition on the carrying of firearms concealed, loaded or unloaded, remains. Remember, Judge Posner in his decision did not say that Illinois could prohibit Open Carry. He did not say that Illinois could choose concealed carry over Open Carry. Judge Posner said that, as per the Heller decision, Illinois could require that firearms be carried openly.

    Putting aside the fact that Illinois did issue concealed carry permits for certain occupations, concealed carry is irrelevant to my lawsuit. Concealed carry is not a right (beyond the limited 19th century exceptions) and a ban on concealed carry is no more relevant to my lawsuit than California's ban on cocaine use and possession (which has limited exceptions).

    It is an interesting question as to whether or not the split must be post-Heller but as to Nunn and Chandler, the two cases that the Court in Heller said perfectly captured the meaning of the right to keep and bear arms, both of them were reaffirmed by their state supreme courts post Heller.

    FYI, the California Supreme Court adopted Nunn in 1924 and other than a 1972 decision striking down a ban on persons who were not born in this country from even possessing firearms, Nunn remains the binding precedent in the California courts in construing state law with the caveat that the California courts have construed the prohibition (not present in Nunn or in 1924) on carrying loaded firearms (openly or concealed) to be valid.

    Finally, let us say that the 3 judge panel decision in Peruta is affirmed. So what? The now vacated Peruta decision clearly stated that it was not saying that there is a right to carry a concealed firearm. Their interpretation was that the right was to carry a loaded firearm. In my Open Carry lawsuit, the Attorney General did not dispute my uncontroverted fact that concealed carry substantially burdens my ability to defend myself even if I lived in a jurisdiction which issued concealed carry permits and I had a concealed carry permit.

    "To be clear, we are not holding that the Second Amendment requires the states to permit concealed carry." Peruta v. County of San Diego, 742 F. 3d 1144 - Court of Appeals, 9th Circuit (2014) at 1172.

    My lawsuit seeks to openly carry modern firearms in the same places where it is now legal for me to openly carry antique firearms and to carry them loaded, but not in all places were I can openly carry antique firearms (incorporated cities) or unloaded firearms (unincorporated county territory) or in all places where it is now legal for me to openly carry antique and modern firearms, loaded and unloaded, either while hunting or while traveling to and from my hunting expedition (which is pretty much everywhere inside of an incorporated city excluding certain government buildings and school grounds).

    I brought the narrowest possible challenge back in November of 2011. This was more than a year before the decisions in Moore v. Madigan and Peterson v. Martinez. I was encouraged to challenge the Gun Free School Zones but I knew then that doing so would make it easy for the courts to say that GFSZs are "sensitive" places under Heller and then conflate GFSZs with public places that lie outside of the GFSZs with sensitive places. That strategy has thus far been successful. Nowhere in the district court did the state defendants claim that I seek to carry in sensitive places for the obvious reason that anyplace where it is legal for a hunter to carry a loaded gun which also happens to lie completely outside of a GFSZ can't be construed as a sensitive place. The state is procedurally barred from making that claim as a defense on appeal. Doubly so given that I am the appellant.

    All the concealed carry lawsuits shot for the moon in a balloon. I kept my Open Carry lawsuit firmly on the ground. I may not reach the moon but if I succeed then we will be able to openly carry modern loaded firearms and to carry them loaded in every place where it was legal to openly carry an unloaded modern handgun before the bans went into effect.

    https://youtu.be/UaxxuyBvB-M
    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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    Last edited by BB62; 06-25-2015 at 04:04 PM. Reason: update link

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