Edward Peruta (courtesy ammoland.com)

In the Peruta v. County of San Diego, the Ninth Circuit Court ruled that the San Diego County Sheriff’s Department couldn’t mandate that concealed carry license applicants must prove “just cause” for exercising their natural, civil and Constitutionally protected right to keep and bear arms. After the ruling, the San Diego Sheriff’s office said no mas. California Attorney General Kamala Harris jumped in, claiming an interest in the case, demanding a chance to appeal. Too late, the court ruled. And now an unnamed, anti-2A judge on the Ninth Circuit has called for a vote to determine if the Circuit will hear the case en banc. Note: this is a call for a vote to review the original decision. Here’s the order . . .

Before: O’SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges.

A judge of this Court having made a
sua sponte call for a vote on whether this case should be reheard en banc, the parties shall file, within 21 days from the date of this order, simultaneous briefs setting forth their respective positions on whether this case should be reheard en banc. See G.O. 5.4(c)(3). Amici curiae wishing to file briefs regarding whether this case should be reheard en banc may also do so within 21 days from the date of this order.

It is unknown how soon the vote on whether to hear the case en banc will occur after the briefs are received. Peruta has already had far reaching consequences, being cited in cases involving Hawaii, the District of Columbia, the Army Corps of Engineers and the Northern Mariana Islands. It also sparked legislation in Guam.

If the Peruta ruling stands it will motivate the Supreme Court to address the issue of gun rights outside the home. A Constitutional right can’t exist on one side of the United States and not the other (e.g., New Jersey).

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch

 

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50 Responses to Judge Asks for En Banc Review of Peruta Concealed Carry Case

      • Not permanent. Crowdfund a constitutional amendment, only problem would be the wording, since the most perfect wording has already been used.

        • I disagree. If the amendment had simply read “The right of the people to keep and bear arms shall not be infringed” without any prefatory clause, that would have helped.

          The problem is law is not solely determined by the force of words. Heck, as full of crap as the English Bill of Rights was (being an excuse in bigotry), it had a right to bear arms “as allowed by law.” Well it would be silly if that meant “we have a right unless you say we don’t” It was understood until the 20th century as, for legitimate purposes, that is a right for defense, not for murder.

          What is necessary for both the keeping and preservation of law is custom. When laws are stable and aren’t changed every year, and it simply becomes custom among the people, that is where the force of law really exists.

          Play with wording all you like. The real victory will be in soldifying the customary law. When Americans generally regard and act as if they had a right to bear arms, so that it becomes custom, and part of the unquestioned air you breath, then you have won the legal battle.

        • “The right of the people to keep and bear arms shall not be infringed” without any prefatory clause, that would have helped.
          ————————————
          No, that’s a horrible wording, because it limits why there is a right to keep and bear arms.
          That right exists for the prefatory clause, which is so that the body of people will be armed sufficiently to form a well regulated militia is needed.
          It’s not there to protect hunting, or even self defense. It’s there to make it clear that weapons of military nature are protected by the right.

        • The Second Amendment is very much about individual self-defense too. The prefatory clause just states an important reason for the protection of the right.

    • I agree. Send it SCOTUS. However, I have no illusions that a SCOTUS ruling will actually settle anything. Right or wrong the Roe v Wade ruling has not stopped States from passing laws IRT abortions. I suspect the usual suspect States will continue to waste tax payer dollars passing and defending anti-gun laws.

  1. A constitutional right also can’t disappear the second you leave your home or set foot in the hundreds of thousands of acres of state and govt. owned land.

    The first and second amendment are worded quite similarly. I would love to hear a judge try to justify an attack on one but not the other (consequence of actions already exists; if you murder someone you go to jail and if you yell the proverbial ‘fire’ in a theater you can be charged for public endangerment).

    • But you won’t be charged with shouting Fire, you’ll be charged with inciting Panic & then only if there is actually no fire.

      Shouting Fire in a theater is perfectly legal.

      • “Shouting Fire in a theater is perfectly legal.”

        Indeed.

        When you walk into a movie theater, no one duct-tapes your mouth shut.

        You are trusted to only yell ‘Fire’ if there actually is a fire.

        The 2A should be treated with the same respect.

    • Some pretty big chunks of our constitutional right to privacy and our 4th amendment protection against unlawful govt search and seizure disappear when we step foot outside our front door and into the public expanses of the state.

      I don’t disagree with the point you are making though.

    • A constitutional right also can’t disappear the second you leave your home or set foot in the hundreds of thousands of acres of state and govt. owned land.

      Tell that to millions of students around the country. Courts have ruled time and again that students have no rights on government property, so why would they apply any different logic to non-students?

    • We have that suspicion out here as well, given his dissent and the fact that as Chief Justice he is guaranteed a seat on any en banc panel, if the Circuit votes to grant en banc.

    • IANAL so this is my synopsis of what I have read at Calguns and mdshooters, where there are appellate lawyers explaining some basics, and a whole bunch more speculation, that like on innertubes forums, you have to take with a grain of salt. IMHO you are best served by waiting for a summary by Michel and Associates, via NRA, or on Michels website, as those are accurate as to the law, and circumspect as to outcomes, for thats to be determined.

      Two points:

      Judge Thomas becoming Chief is no surprise. Kosinski’s term wast up, and Thomas is next in seniority.
      What makes speculation on whats next is the complicated and arcane procedural rules on en banc, which again, you can find at Calguns.net, or Michel and Associates, but more important the limited info about behind the scenes.

      The sole judge filing sua sponte is not a surprise, but I think what is that the request for en banc via that option, is interpreted as asking for the whole case to be reheard, by the Chief Judge, plus ten other randomly selected for en banc panel, that will hear both sides argue it again.

      So there is AG Harris appeal to en banc panel to review the 3 judge panels denial of her request for intervention. If she is granted that, then she becomes a party to the case. Peruta and his lawyers have acceded to her intervention request in past, and presumably would again, even tho Harris declined to participate in the very first hearings before Judge Gonzales in 2012, and she was denied by the 9th panel for her too late request to be added in later.

      Its no surprise there is an en banc panel being assembled, for the judges send memos amongst themselves to determine if the are available, etc. What is the big question, is what wil that en anc panel decide, and will ..it be based on the arguments of the law, that made O’Scannlains decision so powerful, or will it be based on politics, and some stretch to justiify a reversal.

      I dont know, of course, but either way, I think its fair to expect Harris to appeal to SCOTUS if she loses, and Peruta and power team of Michel, Gura, and Paul Clements, who is a former Solicitor General of the US, and has most experience in front of SCOTUS, and held in highest esteem, there, would appeal to SCOTUS I the the 9th CA reverses itself.

      I hink it would be fair to assume this eventuality was planned for all along, by Perutas team, and we can expect it to be heard in June 2016, given timing of calendafrs, and when SCOTUS likes to issue decisions onbig cases.

      I trust Ralph or Mark N. to correct me if I misspoke.

      • I dont know, of course, but either way, I think its fair to expect Harris to appeal to SCOTUS if she loses

        Oh, I don’t doubt that for an instant, same thing if the pro-gun side loses. I’m hoping for that; it was the same mistake that DC Mayor Adrian Fenty kept making, appealing Heller when people were begging him not to.

        Heller finally got us a favorable decision on the “Individual versus Collective” argument after all these years. And if there had been no Heller, there would have been no McDonald

  2. Dean, your first sentence is incorrect. California’s concealed carry law requires an applicant for a CCW to show “good cause” and “good moral character.” The issuing agency (a sheriff or city police chief) has discretion in determining whether the applicant has shown “good cause.” What the court held was that in exercising that discretion, a sheriff had to consider a desire for defense of self to be sufficient good cause to satisfy the good cause requirement.

    Now this may seem like a small matter of semantics compared to your sentence, but the distinction is critical in terms of the standing of the AG (or the lack thereof) because, contrary to the argument in the dissent, the majority did not invalidate the state law and declare it unconstitutional, but instead only construed one term of that statute.

  3. Who would argue for SDSO since they decided to abstain from the case?

    Anyways I am not surprised. Harris got slapped down, so she asked one of her liberal buddies from the Ninth Circuit to make the motion for her.

    • That is indeed an interesting question. Harrris and the Brady Bunch can file amicus briefs but cannot present oral argument, and the Sheriff says he is done with the case. So we wait and see.

      • Hey, I’m perfectly willing to have the mirror image of U.S. v. Miller where Miller’s defense counsel didn’t bother to show at the Supreme Court.

        I’m for it for no other reason than to hear the howls of indignation from the gungrabbers.

        Then again, if Harris, et al were allowed to present oral argument, wouldn’t this be a procedural error that would have to be appealed?

        • Miller’s counsel didn’t show, as his client was dead as a doornail under mysterious circumstances. Or killed by former ruffian compatriots. Or something.

          Miller is fascinating reading, and the back story is great too. If you’re truly interested in knowing some of what went wrong, oh so long ago, do look it up.

        • Oh, I knew Miller died somewhere along in there, so the attorney wasn’t getting a client off the hook. And the attorney was going to have to foot the bill for all his expenses to argue the case; no small consideration when you remember we were still digging our way out of a depression and things were worse in the South than pretty much everywhere else.

      • Mark N.,

        What makes you think a bunch of liberal activist judges need to hear compelling oral arguments from either of the parties in the case? Absolutely nothing stops them from making up their own justification for their decision which I am sure they have already formed in their heads.

        • No kidding Mark; if you never thought this before, just read the dissenting opinions in Heller, McDonald and Peruta.

      • Mark, correct me if I am wrong, but Harris filed for a request to appeal her denial as intervenor, by the 3 judge panel, to be heard en banc by now Chief Thomas, plus ten others. See my post earleir, but I think is MORE likely the larger panel will agree simply to seem fair to the Sovereign state, on th timeliness boo-boo, give she echoed Thomas reason on diseent, for “public safety of millions” and blah blah blah…..

        Whats more interesting is the sua sponte request, to hear the whole case over, enbanc.
        Both those requests are now on paralell tracks for both parties to resond, in 21 days…

        My bet is Gore will say….”we dont mind if Harris takes over”, and since Peruar and team already said they dont mind if she’s added as a party. So the En banc will say, sure.

        If the En Banc says, sure, we will hear this again then its game on, in the 9th.
        If the En Banc respects the rule of law and the judges panels decision, and deny sua sponte request, then Harris takes it to SCOTUS for a request for cert. That is most proper, imho, and puts some shine back on thd 9ths tarnished rep. But I am putting no bets on that.

  4. How do we know it was a anti gun Judge if we dont know the name?
    A re-hearing en banc would be pro gun since if AG Harris Wins we can appeal to the supreme court if they don’t accept to re-hear it en banc then it gets stayed just in the district court of california.

    • Harris’ only involvement in any en banc proceedings will be as amicus. As such, she can file a brief, but has no standing to appear and argue at orals, nor will she have a right to appeal any resulting decision.

    • How do we know it was a anti gun Judge if we dont know the name?

      Why would a pro-gun judge want to upset the Peruta applecart when they’ve got Baker v. Kealoha and Richards v. Prieto in the 9ths hopper making the same arguments?

  5. It’s obvious that Dean hasn’t been to Jersey. There are myths about this Constitution thing you speak of, but no judge here has actually seen one. No surprise then that the 2A, among others, hasn’t been enforced. BTW Dean, I’m still waiting on that ammo price crash you predicted. When is it again? (Sorry, but I had a hard time typing that without laughing).

    • I saw 1k rounds of 9mm for $200 yesterday. 1k rounds of steel case 223 is about the same. Pretty much everything other than 22lr is back to pre-Obama 2012 levels. Your local store may be reaming you but overall supply and price is great.

      • I said before that prices will pull back a bit and that’s what happened, but that’s not what Dean said. Prices were supposed to crash, big time. Even though the demand has subsided, the inflation keeps prices slightly higher than the pre-panic levels. Again, this is what I expected. I’m still waiting for that price crash though…

        • The prices for brass-cased .223 are lower than what I recall them being before the panic, if by that you mean Sandy Hook.

  6. “If the Peruta ruling stands it will motivate the Supreme Court to address the issue of gun rights outside the home. A Constitutional right can’t exist on one side of the United States and not the other (e.g., New Jersey).”

    Ha ha ha ha ha!!!!!

    First of all, I don’t think anything will motivate the U.S. Supreme Court to rule on firearms rights. It is obvious that they don’t want to touch any firearms related cases with a 10 foot pole. They left a disaster in the wake of the Heller and McDonald rulings and have no desire to clean it up. (They didn’t even establish which level of scrutiny courts must exercise when reviewing cases.)

    More importantly, there already is a split in the Federal Circuit Courts even without the Peruta ruling being super-duper final. The Seventh Circuit struck down Illinois’ total ban and required that Illinois provide shall-issue concealed carry. That conflicts with the First, Second, and/or Third Circuits that upheld “good cause” may issue concealed carry.

    I don’t see much reason to be optimistic about the courts. Remember, the courts’ primary reason for existence is to maintain the ruling class. And the ruling class doesn’t want armed serfs. Sure, the courts may throw a bone to the serfs here and there to keep up appearances. If they were really doing their jobs, they would strike down basically all laws, regulations, and taxes on firearms. (About the only laws that I could see the courts righteously upholding would be restrictions on firearms within sensitive sections of petroleum refineries, chemical plants, nuclear facilities, and prisons … the rest should go.)

    • uncommon, you might be interested in some of the discussion at calguns, about likelihood of SCOTUS taking up Peruta, particularl by poster kcbrown.

      Not sure I completly agree on politics, and motivation at SCOTUS, as the process and variables that the Justices consider, are numerous, as to whether to take up a case or not, including an asessment of the majority as to wheter they have the votes.

      I would suggest a read at mdshooters, who are closer to the court, and a reassuring post there about quality and commitment to the law, vs politics in the CA’s….well, with a hedge that CA is “unique”.

      But if what I have read about SCOTUS wanting things to percolate up, and given that the 9th is the largest and most populous, then it would make sense to me that the majority waits for the BEST case, on the undefined part, of c

    • uncommon, you might be interested in some of the discussion at calguns, about likelihood of SCOTUS taking up Peruta, particularl by poster kcbrown.

      Not sure I completly agree on politics, and motivation at SCOTUS, as the process and variables that the Justices consider, are numerous, as to whether to take up a case or not, including an asessment of the majority as to wheter they have the votes.

      I would suggest a read at mdshooters, who are closer to the court, and a reassuring post there about quality and commitment to the law, vs politics in all the federal courts…well, with a hedge that CA9 is “unique”.

      But if what I have read about SCOTUS wanting things to percolate up, and given that the 9th is the largest and most populous, then it would make sense to me that the majority waits for the BEST case, on the undefined part, ie, of carry outside the home, both on the law, and in respect to the largest lower court.

      So the bad news, for me and other CCW rights activist, is this may be delayed, but will go to SCOTUS with strongest arguments, when its more likely a pro-2A judge will be approved by Senate. But not until June 2016, earliest, and likely later, given all the twists and turns….

      So, now I trust the NRA to kep paying for the wise, patient, and strategic counsel that saw and planned for this all along, step by step based on solids g law, and constitutional scholarship of what the founders intended.

      And maybe Ralph can opine, but Kachalsky doesnt count, because that was based on what NY thought, re Constitution. The split, and resolution will be 2(Peruta and Madigan, both on point and newest thinking of the Heller 5) vs The other 3?, not so on point.

      And if we get lucky ar Ginsburg or another liberal judge retires then the odds are better. The unknown is Justice Kennedy. I defer to Ralph, Volokh, and other court watchers, but note the 9th is under his overview, whateverthat implies, good or bad. Hopefully he will advisd the 9th that botb the mood of the country has shifted as has the law, and if judici al activism is a motivator for some judges on the 9th, then perhaps the should follow the sea change, rather than tyrranical ‘executive action’ if they want to engender respect in the law, rather than crony corruption…

  7. argggh. too slow on fat fingered kindle to make the wordpress edit box timer. My bad, Gonzalez was lower court. Dec 2012 orals was 9th CA, and Baker and Preto heard first day. If you want to hear really good lawyering, you can find the link to the recording at Michels website, at NRA, and Calguns.

  8. The anti side is acutally right. Again. Still. Concealed carry is a privilege (stupidly) in our legal tradition. Open carry is the unlicensed right. Very clearly the case.

  9. Meanwhile, residents of San Diego County without super-double-secret good cause cannot obtain CCW licenses, but up the road in Orange County, the desire to lawfully protect oneself and others is perfectly acceptable.

    I’m not sure how this makes sense, but …. California!

  10. Why do you say it was an anti-2A judge who called for an en banc? It might have been a Circuit Judge who was offended by the Peruta decision. A decision which said that states can ban Open Carry if they want to when the US Supreme Court and nearly two hundred years of Federal and State court decisions have held that Open Carry is the right guaranteed by the Constitution and are courts which also held that concealed carry can be banned.

    Perhaps the Second Amendment, as incorporated to state and local governments via the 14th Amendment, doesn’t mean what you think it means?

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