Peruta Decision Focuses on Legal History, But Misses the Point

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As we reported yesterday, the full Ninth Circuit handed down a decision on the right to keep and bear arms, reaffirming the obtuse and racist gun control regime in California that arbitrarily gives the wealthy and politically connected, enjoyment of the privilege of being protected by firearms (along with those who happen to live in majority white counties. The decision is worth studying for people interested in the topic for two reasons.

First, in their decision, the Ninth Circuit goes through an extensive recounting of legal history related to the right to keep and bear arms and gun control. Or, in some cases, sword control, since the Ninth Circuit goes all the way back to medieval England:

In 1299, Edward I directed the sheriffs of Safford and Shalop to prohibit anyone from “going armed within the realm without the king’s special licence.”

It’s an interesting review of laws intended to disarm the population outright, or at least protect the option of those in power to disarm the population. It’s also (unintentionally, no doubt) funny how it blithely ignores the context behind those laws. Why did the King of England want to disarm his subjects? Why were antebellum Tennessee, Georgia, Arkansas, and Louisiana so touchy about weapons in the hands of ordinary folks? Was there some sort of threat of revolt at hand? And by whom?

The court also (in my opinion, rather wrongly) becomes so enamored of legal history that it forgets what it’s been charged with doing. Citing a litany of examples of how slave states in the old South thought it was okay to disarm their populations is all well and good. But they never really establish why the interpretation of slave state legislatures and slave state courts about slave state constitutional provisions relating to the carriage of firearms should apply to our interpretation of the original meaning of the Second Amendment today.

The whole purpose of federalism was to allow the several states the opportunity to experiment — to be a laboratories of different policies, if you will. The feds were forbidden from infringing on the right to keep and bear arms by the Second Amendment, but — and this is the key — the Second Amendment was not incorporated to apply against the several states until the McDonald decision in 2010.

For that reason, an examination of state statutes and constitutions relating to the right to keep and bear arms between 1789 and 2010 is an interesting antiquarian project. But it’s not something that sheds much light on the meaning of the Second Amendment which, as originally conceived, was intended to apply only to the federal government (which meant that it was probably intended to be more expansive, not less) and which had been ratified on the heels of a brutal war against the British which would never have been won if the American people had been successfully disarmed.

Granted, the Ninth Circuit probably put such a premium on legal history because Justice Scalia did in Heller, although the late Justice did a better job of threading that history through the rather narrow prism afforded by the fact that the Second Amendment only applied to the feds, not the states, until 2010. But that brings us to the next point…

The second reason why this case is interesting is — not to sound pessimistic — because this may be something of a turning point on firearms issues in Courts.

The whole decision smells like it was written not just by someone who wanted to adjudicate the case at bar, but to put an end to the momentum that the right to keep and bear arms has enjoyed in federal courts since Heller. In this case, I think they may have succeeded. The decision is a veritable go-to repository, not for legal arguments, but for political ones made in the era of social media. Want to argue that legal history is on the side of the disarmament folks? Just copy and past the history out of the decision and into your Facebook page. Does it mean that, legally, they got it right? No, of course not. But in the era of social media persuasion, such things don’t really matter.

It also provides an easy citation for members of the judiciary — from local magistrates all the way up to the Supreme Court — who, all else being equal, would rather not be out in front defending the Bill of Rights. Don’t want to strike down a law that infringes on the right to carry a firearm for personal protection? Just cite to Peruta and copy and paste some of the history into your opinion. See? It turns out that the history is muddled, therefore no rights for you! After all, judges are human, and humans tend to make their decisions based on emotion then rationalize it later.

There may be, however, a silver lining to all of this. At the end of the day, the right to keep and bear arms doesn’t really rely on words written in the Constitution. It doesn’t rely on the thoughts and feelings of James Madison, Thomas Jefferson, or Ethan Allen. It doesn’t rely on the decisions made by slave state judges or ancient monarchs who claimed power by the divine right of kings. What it relies upon is the willingness of the people who claim the right to defend it.

If the only positive reason we have to argue in favor of concealed carry is because of some words written 250 years ago, I suggest that the argument is already lost.

I don’t think the argument is lost. There are plenty of reasons why ordinary law-abiding citizens might want — might need — to carry a firearm, and it has everything to do with the fact that it’s a dangerous world, that people can be mean, arbitrary, capricious and violent, and that shit, as they say, happens when you’re in the wrong place at the wrong time. There’s also a lot to be said for the fact that as a general principle, people who aren’t actually hurting anyone else ought to be able to go about their business and their lives unharmed, even if they make choices that we find aesthetically discomforting. And, for that matter, a government or force that could disarm the people of America would, by its very nature, be a fascist state that would kill anyone that got in its way.

Those are the real arguments for the right to keep and bear arms and by extention, the right to carry a concealed firearm by law-abiding citizens. Dress ’em up however you want, but those are the arguments we need to press on to our fellow citizens. If we do it well, the opinion of the Ninth Circuit will be irrelevant, because the people will ultimately carry the day. If we fail at it, we could win every court case, and ultimately lose because we lost the people. And at that point, it just takes one push to bring everything down. Generally, constitutional amendments get ratified in ten years or so from start to finish.

So what are you waiting for? Get out there. There’s a nation to win.

 

DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.

comments

  1. avatar Foosball says:

    Who wants to be an open carry test case in California? The ninth circuit is playing cute with the “concealed” aspect when they know this equates to an outright carry ban without so much saying so…

    1. avatar Mecha75 says:

      True, and they declined to rule on open carry by stating that the SCOTUS has never ruled on it. so that they can have their cake and eat it too. I guarantee you that they will narrow their ruling on any case against the California Open Carry ban stating that there is no 2A infringement with the ban on OC because California allows for permitted conceal carry. despite their ruling that conceal carry is not protected by the 2A. Circular logic is how liberals get around common sense. I know this because that was the ruling in Norman v State of Florida in Florida’s 4th District Court of Appeals. I fully expect the Florida Supreme Court to uphold the 4th DCA ruling, keeping Florida’s OC ban in place.

      1. avatar TennTexan says:

        “Circular logic is how liberals get around common sense.”

        Exactly. “Machine guns aren’t in common use because they’ve effectively been banned since 1934. Because machine guns aren’t in common use, it’s OK to ban them.”

      2. That was a very circular argument you just made.

      3. That was a very circular argument you just made.

    2. I already am the Open Carry test case.

      I lost in the district court because of the sharply divided three judge panel decision in Peruta. My appeal has been stayed ever since because of that decision. Now that we have the en banc decision in Peruta, my appeal can proceed once the NRA stops monkeying around.

      You have heard haven’t you that the NRA is going to ask for a full court review of the en banc decision knowing full well that they don’t have the votes of 15 active circuit court judges to grant their petition. Notwithstanding the fact that every petition asking for a full court review has been denied.

      You folks should be yelling at the NRA to get out of the way. For over six years now they have been in court telling judges that Open Carry can be banned in favor of concealed carry and the NRA has been supporting California’s Gun-Free School Zone Act of 1995 in the courts despite what it says in public.

      The NRA, in the Peruta case, told the 9th Circuit Court of Appeals that if they didn’t get their concealed carry permits then that would result in both the Open Carry ban and the California Gun-Free School Zone Act being overturned.

      The NRA said that would be a drastic result.

      I disagree. The gun-free school zone bans should be overturned. And so should California’s Open Carry bans be overturned.

      But then I’m not the NRA. When I say something I mean it and I say it knowing that most of you don’t want to hear what I say.

      Now for some celebritory music -> https://youtu.be/2oKR9MYYdBM

  2. avatar Red Sox says:

    “…. Ninth Circuit goes all the way back to medieval England:.”
    “In 1299, …”
    In 1789 we disavowed all of that medieval and/or any European shackles so let’s start there. If not for Samuel Adams, Paul Revere and other free citizens bearing arms we would still be British subjects. So the 9th circuit DB’s can F off.

    1. avatar JoshuaS says:

      You do yourself no favor spouting idioticy like that. We inherited common law, and that is still a huge part of our law. It stopped growing in the US, but the product was taken in toto in the US.

      And the Constitution is largely based on European and medieval ideas. Yeah those terrible middle ages! They had the audacity to invent the university, the corporation and… firearms, and to abolish slavery.

      And what did Paul Revere do? Make a proganda engraving depicting Boston as a massacre when it was not? Lie and slander? Get arrested on the night of the famed midnight ride, and be the only one not to escape?

      And you really want to invoke Samuel Adams? He would have many a commentator here hanged. He believed very strongly that the claims we had to rebel against a monarchy could NEVER be made in our republic, and declared that those that participated in Shay’s rebellion should be hanged. He took a similar position, against members of his own party, on the Whiskey Rebellion.

      These aren’t the “heroes” you are looking for

      1. avatar Joe R. says:

        Your history is at least somewhat revisionist.

        Suffice to say that NO CURRENT ENTITY, PERSON, OR POLITICAL BODY (incl. SCOTUS) = Our Founding Fathers.

        There is a way to chuck everything that our founders accomplished AND THIS AIN’T IT !

        It is absolutely certain that our founding fathers had ABSOLUTELY NO IDEA if this American experiment would work. They knew a-holes (like the current black robed idiots we are discussing) crop up without warning and try to wedge themselves into positions of power so that they can usurp more and lord themselves over others. Our founding fathers deferred IN SHRINKING AWE, to the Authority of MY GOD [HE WHO IS, father of JESUS, and whose SPIRIT is called HOLY (cause a lot of you out there are really hosed up on that).] They wanted to establish INDIVIDUAL SOVEREIGNTY, as they had no idea when they, OR U.S. citizens, would have to chuck the whole thing (likely in violence [as there were very nearly no such transitions from known history that were absent at least some form of violence]) and to start over.

        The right to keep and bear arms is there so you don’t have to ask any tyrant’s permission to stop them from oppressing you, it is a promise to each other to fight to the last man and to leave you and yours for the crows should anyone feel so inclined.

        You don’t have to have read any Sun Tzu or Clausewitz to see that Disarmament can only be viewed as one thing, and that is a lead up to a war against you. Those who are pro-disarmament can say that is not their intent or purpose, but what would they say if it was?

        If we’re going to make it up as we go, we’re going to do my version of anything goes and you won’t like it.

      2. avatar neiowa says:

        Great a freaking Royalist in the house.

    2. avatar Mecha75 says:

      Post-1789 SCOTUS courts have ruled on cases and stated English Common Law for the reasoning behind their decisions. The 9th circuit only used it to show the reasoning behind the rulings of the early 19th century.

  3. avatar Shire-man says:

    I love that “some of our first laws regarded weapons.”
    Right. Because poor people and black people and anyone threatened the stats quo couldnt be permitted to get their hand on them.

    I suggest Pit Bull by Bronwen Dickey. It isnt so much about the dog as it about how completely @#$%ing stupid people are. It traces back old laws that regulated who could have dogs and why not reasons from the king worried peasants with mastiffs might be hunting his deer to klansmen not wanting the difficulty of a loyal dog to get in the way of their lynching.

    Same as with weapons. Morons and tyrants alike love a weak defenseless population and just hate it when anything gets in the way of their application of petty, stupid tyranny.

  4. avatar Magickaldood says:

    Does the author earnestly believe that the Amendments do not apply to the states? Why would the founding fathers have gone through the trouble of creating a new nation then? Whats the point of Federalization other than to agree on the Constitution and its Amendments? Do you think that everything California did to abridge rights up till 2010 was lawful and should be respected?

    Basic Human Rights are universal. Every single person has a right to self-defense, especially from their government. If you don’t understand that, then you missed the whole point.

    1. avatar Foosball says:

      Re-read article. Then re-read McDonald. Then revise comment.

      1. avatar Chevalier says:

        I think his issue is with the following paragraph:
        “The whole purpose of federalism was to allow the several states the opportunity to experiment — to be a laboratories of different policies, if you will. The feds were forbidden from infringing on the right to keep and bear arms by the Second Amendment, but — and this is the key — the Second Amendment was not incorporated to apply against the several states until the McDonald decision in 2010.”
        I think his issues are procedural, because I have the same qualms. First, the whole purpose of federalism was not to allow the states to do whatever they want, it was to ensure the common defense. The fed was granted/delegated certain powers over (and from) the states, showing primacy in areas of that delegated authority. The states ratified the constitution, and the amendments, voluntarily binding themselves to those restrictions.
        The constitution grants no rights, it only recognizes certain inalienable human rights (but not all, per the 9th), in the form of further protections for them. It is a bankrupt position, in my opinion, that basic human rights are protected from federal infringement, but not state. I believe the 14th amendment due process and incorporation was legally unneeded, but socially required, as groups had violated ‘the law’ by oppressing freed blacks rather than just sucking it up. Yes, it’s more complex than that, but this isn’t a 14th amendment discussion, and I do recognize the court usage of incorporation.
        On incorporation, this is a concept that shouldn’t have been needed, due to liberty infringements against basic, protected, human rights. For instance, The first amendment specifically calls out congress, and restrictions on it’s power in certain areas. That specific call out restricts the scope of the amendment to the federal legislature, not states. LEGALLY, states (Without 14th amendment incorporation) should be free to legislate in all first amendment protected areas. I don’t agree with the concept, but the wording is pretty straight forward. States aren’t specifically mention other than the sixth (“of the State and district wherein the crime shall have been committed”) and the 10th (nor prohibited by it to the States, are reserved to the States respectively, or to the people).
        This shows how far off the rails we went, and how fast. I’m of the ‘The bill of rights should have been legally unneeded’ camp, as the fed has only those delegated powers, none of which empower them to say, infringe on our right to keep and bear arms. The Bill of Rights WAS specifically needed to protect the rights of citizens in light that the states had no restriction on rights infringements those amendments. Legally I mean, not morally.
        Anyway, it should have taken a constitutional amendment to empower the fed to pass any law like the NFA, GCA, or FoPA without the 2nd Amendment. With the 2nd, it SHOULD take two amendments, one to modify/repeal the 2nd, the second to delegate that power (or to repeal the 10th/modify Article V in order to delegate anything to the fed on a simple majority through congress). That we put up with these…Shenanigans, is personally nauseating. Again, through ratifying the bill of rights, the states legally recognized these basic human rights, and bound themselves to those restrictions. Any other interpretation makes an unholy mess.

        1. avatar int19h says:

          >> It is a bankrupt position, in my opinion, that basic human rights are protected from federal infringement, but not state.

          It’s not really bankrupt if you look at it as a separation of concerns. In other words, the federal government is responsible for protecting rights from infringement on federal, level, and the state governments are responsible for protecting rights in their respective jurisdictions. This was the original arrangement, and it’s exactly why states have their own constitutions which have (now seemingly redundant) provisions about freedom of speech and religion, RKBA and so on.

    2. avatar JoshuaS says:

      The Bill of Rights were NEVER applicable to the states, until the Supreme Court decided that, via the 14th amendment, SOME provisions of it were applicable.

      Massachusetts had a state church until 1838. And even now, you have NO right to a grand jury ever, except in federal cases (or if your state requires it… most do not). And remember how the 1st amendment starts? Congress shall pass no law…. is Sacramento Congress now?

      No. The 14th amendment requires equal protection and rights. So the courts have ruled that some aspects, to some degree, of the bill of rights apply to the state as essential to “ordered liberty” It was only in McDonald that this was ruled about the 2nd amendment. Look up selective incorporation

    3. avatar uncommon_sense says:

      I am glad that magickaldood brings up this point.

      As it turns out, legally speaking, the Second Amendment has always applied to the states. Why? Because the Second Amendment does not uniquely direct its mandate only to the federal government. Unlike the the First Amendment that states, “Congress shall pass no law …”, the Second Amendment does not specify the federal government. Therefore, it applies to all government entities.

      And before anyone tries to dismiss that fact, remember that the Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it [U.S. Constitution] to the States, are reserved to the States respectively, or to the people.”

      The U.S. Constitution clearly takes some things off the table for the individual states. Like or not, the U.S. Constitution includes the Second Amendment which takes firearms infringements off the table for all government entities.

  5. avatar The Trouble with Timbo says:

    What happened to equal protection under the law? Does anyone remember the 14th Amendment? How does someone get through law school and get appointed to be a judge without basic reading skills? Why does my constitutionally protected (supposedly) rights differ depending on where I live?

    1. avatar Binder says:

      Here is the thing, they don’t want people to carry firearms, and they will do everything they can to justify that decision. If you really think they are somehow slow mentally, you need to change that opinion ASAP before it bites you.

    2. avatar Mecha75 says:

      They could read. it is called being an Activist judge. Unfortunately, the historical rulings based gave them enough legitimacy to make the claim that the 2A doesn’t protect conceal carry. Court rulings, based on a culture that saw conceal carry as something only done for nefarious and illegal reasons. Whereas today’s culture, conceal carry is the preferred method.

  6. avatar Mecha75 says:

    I only have one major issue with the Peruta decision. And it is the fact it is based on rulings when the culture view of conceal carry was that it was done for nefarious reasons. Whereas today, the opposite is true. Now most people freak out if someone is carrying openly and we in the 2A community do prefer to carry concealed for OpSec reasonings. To me, that is an argument that the plantiff’s should have made and they didn’t. FYI, I do not believe for one second that the 9th would have gone against their political nature and would have found any excuse to deny the right to keep and bear arms of the ordinary citizen.

    1. avatar Glenn says:

      Sounds like you’re describing a living constitution that changes with the times. You’re in good company (Ginsburg, Sotomayor, Kagan, etc.).

      1. avatar Mecha75 says:

        wrong, My take is that the right to bear arms is pretty plain. Bearing of arms means the carrying of arms and there is no stipulation detailing the manner in which they should be carried.

    2. The reason you just gave is the very reason why concealed carry was banned in the first place. What do you think the Heller decision was referring to when it condemned “secret advantage and unmanly assassination.”?

      Yeah! Telling the 9th Circuit court of appeals that you want your clients to be able to carry concealed so that they would have a secret/tactical advantage over others would have convinced the seven judges in the majority to vote the other way.

      JFC!

  7. avatar tdiinva (now in Wisconsin} says:

    The incorporation of the Second Amendment through the 14th did not just happen in 2010. It was the first Court ruling citing the 14th Amendment. Until its passage none of Federal Bill of Rights applied to the states. Thus the last established Church, in Virginia no less, did not get disestablished until the 1830s. The famous “Wall of Separation” was built around DC not Boston, Albany or Richmond. In the same way States were allowed infringe on the Press, firearms, warrants and every other individual right identified by in the Bill of Rights. The only restrictions were those found in their state Constitutions. So citing the fact that many restrictions on gun ownership were in slave holding states is irrelevant as citing 13th Century England. It was permitted. And it should also be noted that virtually every state had a ban on concealing firearms in the era where “no honest man would conceal his weapon.”

    1. avatar Anthony1911 says:

      The Anglican Church was disestablished in Virginia in 1786. Thomas Jefferson was a big part of it no less.

      1. avatar tdiinva (Now in Wisconsin) says:

        I stand corrected. It was Massachusetts in 1833. Point remains the same. The Bill of Rights did not apply to the States until the passage of the 14th Amendment.

  8. avatar bolero says:

    If you can’t open carry, and you can’t conceal carry, how can you “bear arms?”

    Angels dancing on the head of a pin, the point of modern legal theory these days.

    1. avatar Mecha75 says:

      They declined to rule on the constitutionality of Open Carry. They tailored their ruling specifically to Concealed Carry. They did so to insure they did not invalidate California’s ban on Open Carry. Logic suggests that if the right is to BEAR arms and one manner of bearing arms isn’t covered (pure BS as there is no stipulation on the manner of bearing arms in the amendment but there is one about not being infringed). Well then, the only other manner of bearing arms MUST be the protected right. But that is if you are dealing with people who care about the rights of the citizens, not ones that want to subjugate the people under them (which happens to be the majority citing enrobed on the 9th Circuit).

      1. avatar bolero says:

        “Well then, the only other manner of bearing arms MUST be the protected right”

        That was my point, simply with fewer words.

        If you can’t open carry, or concealed carry, you can’t “bear arms.” It doesn’t matter if the court only ruled on one or the other, there is no logic in the decision, unless there is no right in the first place.

        And I don’t get the whole “incorporation” thing. Who chose what was incorporated and what was not?

        Again, angels dancing on the head of a pin, no real philosophy of our existence required. Facile.

        Fuck the Ninth Circus.

        1. avatar Mecha75 says:

          that is activist progressive judges for you. “Conceal Carry isn’t a protected right – US 9th Circuit” “Open Carry bans are not unconstitutional because you can get a concealed carry permit, therefore you do have a method of bearing arms – Florida’s 4th District Court of Appeals”

  9. avatar Fight islam Now says:

    “F” em, “F” their families. Bring on the taint of blood.

    1. avatar Mecha75 says:

      tar and feather them in the town square!!! yeah, it ain’t gonna happen. no one wants to be labeled a nut job like those that thought they would start nationwide protests and insurrections after they took over an Oregon nature preserver last January.

  10. avatar tdgrafton says:

    Wow, so many of the comments reflect my own from yesterday.

  11. avatar AZ says:

    While it is true that concealed carry was frowned upon in 19th century jurisprudence, the vast majority of courts to evaluate concealed carry bans only upheld them because the various states allowed for open carry, which was seen as the “noble” method of self-defense.

    As an aside, didn’t I read in another post that TTAG had gotten rid of the hijacking ads? Lies!

    1. Please provide pinpoint citations to the “vast majority” of courts which upheld prohibitions on concealed carry because Open Carry was allowed.

      And if you knew about these vast majority of opinions then why didn’t you tell the lawyers for Peruta and Richards? Because they certainly never cited a single case which said that concealed carry is prohibited because Open Carry is allowed. 😀

      To the contrary, those cases which they, and the Heller decision, cited said that concealed carry was vile and cowardly.

      This, boys and girls, is another example as to why you lost.

  12. avatar Martin Gomez says:

    Why did the king want to diisarm his subjects? Arms are strength. The people always want to be armed against tyrants. Tryants always want the people disarmed. The Constitution and BoR are written from the people’s perspective. The actions of the Democrats/liberal elite here and in EU are consistent with those of who seek eventual tyranny.

  13. avatar uncommon_sense says:

    “At the end of the day, the right to keep and bear arms doesn’t really rely on words written in the Constitution.”

    This is key. Why? Let’s look at statistics and then come back to law. Statistics based arguments are a losing strategy for wide scale cultural change because few people have interest in statistics much less the ability to understand/scrutinize the statistical data, methods, and conclusions. Likewise, law based arguments are a losing strategy for wide scale cultural change because few people have any interest in jurisprudence much less the ability to understand/scrutinize the precedents, applicable Common Law, and resulting conclusions.

    All we have to do is keep our arguments simple and, most importantly, keep our arguments REAL. Saying it another way, keep our arguments relatable. Just tell people how rational and critical it is to have the ability to protect your life and the life of your family. And tell them why firearms are extremely effective … with SIMPLE arguments that are relatable.

    1. avatar Jim Bullock says:

      Well said.

      So, “Yeah, just like Kings banning swords n dogs, n Klanners banning black folks guns, we only want the occupying cops in Ferguson n Baltimore to have gins, right? Or at least that’s what the 9th circuit said.”

      Disclaimer – that’s polemic, not my precise opinion.

  14. avatar lasttoknow says:

    Would people really respond to the idea of leaving people alone, or be afraid the government would really use force against their own citizens?

  15. avatar Geoff PR says:

    As passionate as we are on the proper interpretation of the 2A (meaning, it means exactly what it says, you brain-damaged Progressive fvckwits), we had better get used to the fact that no matter how long and how hard the slog will be to attain civilian disarmament, they are up for it, and always will be up for that battle.

    As time passes here in the USA, more people will slowly migrate to the larger population centers.

    Since they tend to be run by the party that promises more and more ‘free stuff’, expect them to be run by those on the Left.

    I fear in 100 years time, the 2A as we want it to be interpenetrated will be ceremoniously tossed in the dustbin of history with thunderous applause where it will die with nothing more than a pitiful whimper.

  16. avatar Tom in Georgia says:

    The Court would be wise to remember the four boxes of liberty. Soapbox, ballot box, jury box, cartridge box. Ignore the first three at your peril.

    Tom

    1. avatar Mecha75 says:

      there is little to no will to use the 4th box in this country. And when someone does attempt to use, we castigate them as Nut Jobs like we did those protesting the federal government land grab in Oregon earlier this year. They know this, that is why they will continue to degrade our rights. Also, this is not the American Revolution. we do not own the media like we did then, the liberal gun grabbing statists own and control the media now.

    2. avatar uncommon_sense says:

      The Ruling Class would also be wise to remember this pearl of wisdom:

      The overwhelming majority of classic criminals are a pretty dumb lot. They don’t put a lot of thought into their crimes, they don’t have a lot of resources to bring to bear, they act impulsively, they stick to their immediate surroundings (neighborhood), and they don’t seem to care much what happens to their family (if they even have a family). Thus classic criminals represent pretty much zero risk to the Ruling Class.

      Now let us consider the large new throng of “criminals” that the Ruling Class is Hell bent on creating. These “criminals” (e.g. people who own firearms) have all the time in the world to plan any actions to secure their rights. They have a substantial amount of resources that they can bring to bear in their actions to secure their rights. They have the ability to act to secure their rights when the time is right. They can travel across country if necessary to carry out their actions to secure their rights. Most importantly, most of them have families that they cherish … which means that they are highly motivated to ensure that the Ruling Class does not rape, pillage, and plunder their families. Thus, good people (including firearms owners) are a substantial risk to the Ruling Class. In fact I would even go so far as to say that good people are a guaranteed nightmare to the Ruling Class if the Ruling Class “goes all in” and declares millions of good people to be “criminals”.

  17. A few points.

    – As an initial matter, the historical analysis approach is the wrong approach, under current Supreme Court precedent. If this approach had been used in Obergefell v. Hodges, the bans on same-sex marriage would have stood. Judge Callahan, in fact, cited Obergefell with approval in her dissent. (I disagree with Obergefell and its approach, but the Court was bound by it.)

    – The court only addressed the facial challenge to the county’s interpretation of good cause. However, due to an intervening change in law since the district courts issued their judgments, the appellants made, for the first time, an as-applied challenge in the context of California’s ban on open carry. The Court did not even imply that the plaintiffs were procedurally barred from making the as-applied challenge. However, the Court reached a disposition of the judgment without addressing the as-applied challenge. (Judge N.R. Smith, in his dissent, would have vacated the judgment and remanded the case to the district court to decide ther as-applied challenge).

    – finally, the court was wrong when it held that answering the Second Amendment question necessarily answers the equal protection question. These are independent issues. That a state may generally ban concealed carry does not necessarily mean that a state can ban concealed carry solely by young black males. In Reitman v. Mulkey, 387 U.S. 369 (1967), the Supreme Court struck down a state law that states that neither the state nor its subdivisions “shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.”, because it established a right to discrimination. Allowing sheriffs unfettered discretion as to what constitutes good cause likewise, under Reitman, establishes the power to discriminate.

    1. avatar Glenn says:

      Michael,

      Good comment. However, I don’t think Obergefell’s made up “right to dignity” is a solid basis for protecting the 2A.

      I thought the plaintiffs in Peruta at oral argument said they weren’t changing their argument based on the recent change to open carry laws. Looking at the issues, I can’t explain why they wouldn’t. The dissenting opinion that if you bar open carry, you can’t also bar concealed carry is the argument that the plaintiffs should have made. Any thoughts on why they didn’t, or did I just miss the boat on this one?

      In the end, I think the Courts will conclude that a state can bar concealed carry, but can’t bar open carry. When this happens, the various state legislatures will realize that it is better to allow concealed carry so as to not upset all the special snowflakes who need to retreat to a safe space when they see a gun. So regardless of whether there is a 2A right to concealed carrry, the states will begrudgingly allow it as the lesser of two evils.

      1. Another thing I would add is that I am unaware of a California Supreme Court ruling that plainly establishes that a desire for self-defense does not constitute good cause.

        The Court should have certified the question to the California Supreme Court, especially as the resolution of the state-law claim may easily dispose of the appeal. See Elkins v. Moreno, 435 U.S 647 (1978)

    2. You are misreading both the majority decision in Peruta and misunderstanding the case law you cited, assuming it is correct.

      The Peruta en banc decision held that there is absolutely no right to carry concealed in public. If concealed carry were a thing, it would be contraband. In short, prohibitions on concealed carry are always valid as applied to everyone. If the government wants to ban concealed carry for everyone, including the police, militia, military and dog-catcher then it can do so.

      An exception to that is when a law is racially motivated, particularly a criminal law. A law can be valid in all of its applications but if the reason for enacting that law was racial animus then that law can be struck down.

      The legislature would, of course, reenact the law being careful this time not to be racist about it and the person who brought the successful challenge gets to have his conviction vacated but the next time around, the law would be upheld.

      I suggest that instead of relying on what you read on the internet that you read the decisions. Many, many decisions and learn how to tell which are still valid law and which are no longer valid.

      Google Scholar is free and a great place to start.

  18. avatar Anonymous says:

    If the government “is the people” like they like to claim, why would the government want to disarm itself??

  19. avatar Cornholio says:

    “In 1299, Edward I directed the sheriffs of Safford and Shalop to prohibit anyone from “going armed within the realm without the king’s special licence.”

    Lets try this:

    “In 1941, Reinhard Heydrich mandated all Jews over the age of 6 to “wear the Star of David with the word Jude (German for Jew) inscribed in faux Hebrew letters.”

    So if it happened in the past it must have been O.K.

  20. avatar MadMagyar says:

    There’s so much to challenge in most of the comments that it would take forever. Suffice to say that most people do NOT understand their true relationship with “governments” (corporations set up to benefit the wealthy and not the general populace). This is the case with the United States. We are not “The People . . .” mentioned in the Preamble. The members of the corporation were – and THEIR posterity (not us) were who they were “securing the blessings of liberty” for. Don’t believe me?

    search YouTube for the phrase “a new history of America” and listen to at least the first of the six interviews.

    If that doesn’t wake you up to what’s really going on (and why the court went all the way back to 1299) then nothing will. In the end it will all come down to a shooting war. I just hope they haven’t disarmed us completely before that happens, otherwise we’ll have to re-arm ourselves with the weapons of dead (UN) soldiers.

  21. avatar John in Ohio says:

    Are the “Concealed means concealed!” and “They ruined it for the rest of us!” folks waking up yet? Protection of your Liberty, my Liberty, and their Liberty won’t come from an election or a court decision. The day-to-day bearing of arms and refusal to submit is the only way. Repent of your statist ways, otherwise, individual rights in this country, and pehaps the World, are forever screwed.

  22. The author suffers from the same malady shared by so many.

    He doesn’t have a clue as to how the law works.

    Case in point. In 1791, when the Second Amendment was ratified, it would not have mattered if Congress had passed a law mandating that everyone carry a concealed weapon and it would not have mattered if the Framers of the Second Amendment, and those who voted it into law, thought that the right applied only to concealed carry.

    When a fundamental right, such as the Second Amendment, is incorporated against the states via the 14th Amendment, it is what right (the Second Amendment in this case) was understood to mean by the people who voted for the 14th Amendment.

    And lets face it boys and girls, nobody thought there was a Second Amendment right to concealed carry in 1868.

    And by the way, if it were to look at the “logic” put forth by the Peruta minority of judges, it is their position that a fundamental, enumerated right (Open Carry) can be banned for something which even they say is not a right (concealed carry) because (some) people don’t like Open Carry and others prefer concealed carry.

    If you agree with their reasoning then you agree that the government can hand you an all day sucker and then shoot you between the eyes because the government has substituted your right to life for an all day sucker and a bullet in the head.

    Children, you should be applauding the seven judges in the majority. They could have gone off the rails like the minority and considered a challenge not before them, Open Carry, and then held that there is no right to carry arms in public unless and until the US Supreme Court says there is.

    Meanwhile, here is some celebratory music. What I have been telling people these past six years about concealed carry not being a right has now become the law of the land here in the 9th Circuit Court of Appeals.

    Forgive any typos, the hour is late.

    https://youtu.be/2oKR9MYYdBM

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