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CA AG Kamala Harris and President Obama (courtesy rollingout.com)

Mark N writes:

“Local law enforcement must be able to use their discretion to determine who can carry a concealed weapon,”  California Attorney General Kamala Harris said earlier today. “I will do everything possible to restore law enforcement’s authority to protect public safety, and so today am calling on the court to review and reverse its decision.” Click here for her latest gambit: the State of California’s petition for en banc review of the Peruta decision, the ruling that struck down the “good cause” provision of San Diego’s concealed carry provisions. Although the document appears long, only the first 20 pages are the petition and the rest is attachments. The argument is pretty straightforward . . .

1) The panel was wrong because San Diego COUNTY (as opposed to the City of San Diego) generally allows open carry in almost all unincorporated areas, except those close to population concentrations–and that this area is most of the county.  (The State does not mention that there is no viable way to carry within city limits).

2) the decision conflicts with the decisions of the 2, 3 and 4th Circuits (true), and

3) the panel applied the wrong analytical format and

4) concealed carry prohibitions are presumptively lawful . . .

These arguments pretty much parrot the dissent, an opinion, that, contrary to the majority, focuses on the concealed carry law in isolation and not in the context of the entire law. Amusingly, the state characterizes the “good cause” requirement (which in effect has banned concealed carry in most urban areas of the state) as a “modest” requirement.

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109 COMMENTS

  2. Anyone who thought she wouldn’t appeal probably still thinks Elvis is alive. There was no way the Queen of CA Gun Control was going to go quietly into the night.

  3. Has it been proven that CalDOJ has standing to do this? Last I checked (a few hours ago) it appeared that this was a “request” similar to the amicus “request” by the CA police chiefs associations, etc.

  4. While standing can be a complicated issue, I don’t think that the world’s hottest AG has it in this case.

    I also think that if Camel-a Harris is hot, Janet Reno was a goddess.

  5. i can’t wait for the day when i read “breaking: your ca ccw permit is just a few hundred dollars away regardless of county.”
    until then, i will assume my county will fight it, make it as hard to acquire as possible, and as expensive as possible.

    • Is it really a few hundred? Wow. I figure between the training course, fingerprinting, and license I will be able to get mine for right at $100. (EDIT) And, I’m sure someone else will say how much less it is where they are than my example

      • Mike,

        All of my research indicates that it costs the average Californian about $500 in total to get their concealed carry license.

        • Or, about 25% what it costs to permit and buy a handgun in DC that you can NEVER carry… According to Emily, anyway…

  7. Next, let’s legislate a “modest” requirement that all persons are required to show “good cause” before being issued a driver’s license.

    I’m not really interested in trying to parse the legalese of the previous 3 points (law school just doesn’t sound very interesting for some reason), but for you lawyers out there: How is a prohibition on concealed carry presumptively lawful? Is it due to the previous SCOTUS case (not sure which one) that ruled allowing cities to restrict the carrying of firearms in the ‘interest of public safety’?

    • law school just doesn’t sound very interesting for some reason

      If I knew then what I know now, I would have been a proctologist instead of a lawyer and dealt with far fewer @ssholes.

      Now, as to you question” SCOTUS ruled that longstanding prohibitions on carrying in sensitive places are presumptively lawful.

      • Heller, in dicta, said that long standing prohibitions are presumptively lawful, and cited a number of state supreme court decisions which upheld concealed carry bans back in the 1800s. These cases are discussed in great detail in Peruta, with the court recognizing that in each of these cases, the right to carry openly was preserved. California, by contrast, has banned open carry in all incorporated (and some unincorporated areas adjacent to incorporated areas) throughout the state; therefore the only way to legally carry a loaded firearm in any urban area is with a CCW. when added to the restrictive interpretation of “good cause’ that limited CCWs to a select few, there was an essential ban on average citizens bearing arms in the State. thus, said O’Scanlain, those prior decisions were not controlling.

        • O’Scannlain is my new favorite judge, BTW. That majority opinion was a work of art, and not just because I agreed with what he was saying. As I carefully read his opinion in Peruta, and I began to realize just how thoroughly he had smacked down not only CA’s anti-2A practices but the weaksauce 2A carry rulings from the other circuit courts, well… let’s just say I was grinning the rest of the day.

        • AlphaGeek,

          I don’t know if you ever read my comment I posted several days ago … I said that if ANY “may issue” concealed carry case makes its way to the U.S. Supreme Court, all the plaintiff’s attorney has to do is hand over a copy of the Peruta ruling to the Supremes and walk out the door. I continue to stand by that statement.

          The Peruta majority ruling is the most iron-clad ruling that I have ever read. If the Supreme Court strikes it down, that action will be their public declaration that our Supreme Court is no longer legitimate.

    • How about having a modest requirement to demonstrate good cause before being allowed to vote. Or speak, or assemble. And such.

      • A “modest” requirement of “good cause” to be granted the Right to freedom from involuntary servitude?

        I think it’s hilarious that if most ‘stereotypical’ liberals would take their fingers out of their ears long enough to actually listen to what we’ve got to say, we’re using the same arguments they use on a number of issues.

      • Communists Progressives are NOT arguing. They throw out an endless stream of words thinking that something will eventually stick. They are not interested in what is true, just, or right. Their only interest is getting what they want and everyone else can go to Hell. In other words they have no integrity whatsoever and absolutely no regard for other people. Do not ever forget that.

        Progressives are not our “friends”. They have no qualms whatsoever sending in government agents to confiscate your property, your dignity, and your life. They cheer when government agents arrest, imprison, beat, and/or kill you for having the gall to oppose their efforts to control and exploit you.

        We, the good people of our nation, view government as a defensive tool that we employ to stop others from harming us when all other methods have failed. Progressives, on the other hand, view government as the primary offensive tool to control and exploit us while we stand around talking about our rights.

    • The second that the “good cause” requirement is in place, bearing arms becomes a De facto privilege for citizens of good standing and as such it is no loner as an inalienable Right.

  8. My understanding from reading the Calguns posts is that this is NOT an appeal, exactly. It is a request to DO an appeal to en banc despite her lack of standing, and it will be heard by the same three judges that did Peruta.

    In other words, it is purely a symbolic/PR move.

    HOWEVER, it will perhaps have an impact where it matters: it may be enough to convince one of the more radically anti-RKBA judges of the 9th Circuit to call for en banc before the 7th of next month.

    So…it could still screw us.

    The good news is, very likely the US Supremes will decide whether or not to hear Drake before any decision is made to take Peruta en banc or not. The Supremes really should take Drake en banc as the odds of Peruta being appealed to the Supreme Court appear very low since San Diego didn’t even want to appeal it en banc. That means if the circuit split doesn’t get resolved via Drake, the issue of carry rights cannot be resolved for years, not until or unless an appeal rises out of the 1st Circuit (and the state of Mass. where there’s a may-issue system) or DC (where there’s zero-issue).

    And those appeals are not guaranteed either, at least not all the way to the Supremes.

    Peruta makes the issue ripe for Drake. Everybody’s cards are on the table, we are “all in” on both sides, now is the time.

    • No Drake (or equivalent) for SCOTUS until the 9th circuit fully plays itself out on this issue, certainly on Peruta itself, but possibly on other pending 9th circuit cases too. And maybe not even then, especially if the 7th reverts to being the sole “aberrant” circuit at that point.

      I guess that was a prediction, but whatever.

    • In he federal court system, there is one appeal by right, and that is an appeal to the Circuit court of Appeals of a trial court (federal district court) decision. After a decision by the Court of Appeals, a losing party may ask for rehearing by the same panel, or en banc hearing by “the entire court.” The grant of either rehearing or en banc is purely discretionary–the Court of appeals is not required, but may chose to do so. For en banc, it is decided by a majority vote of all of the justices of the circuit–and if the majority says no, then the case is over in that court. The next possible step is a petition for certiorari to the united States Supreme court. The Supremes gets thousands of these every year, and grants at most a few hundred at most. So the odds to begin with are slim, and then there is the requirement that a case raise an issue of sufficient importance to warrant a “policy” review by the high court, often but not always characterized by a split of authority on the same question in the several circuits. If not reversed by an en banc review, Peruta certainly raises a split of this caliber. But let’s hold that discussion until the Ninth decides whether to let Kamala to intervene (which is hard to predict), and then further votes to grant review. As to the former question, an issue was raised by one justice as to whether Peruta was required to give notice to the AG and allow intervention by the State, which was not an issue in the companion case of Richards v. Prieto (raising the same issue plus but still under submission) where the AG was given notice but declined to participate–a declination that may play a part in the resolution of the current motion.

  10. Simple PR stunt is my guess, and a desperate flail, in support of Ms Harris’ greatest admirer, and gallant knight for the oppressed, the Empty Suit of Armor in Chief.

    She owes him one for hiring her brother in law, Tony West, over to Civil Rights division after he bundled a bunch of money for Obama while a lawyer in SF. West was just promoted to 3rd in line behind Holder, I believe.

    The payback would be “who gets nominated to Ruth Ginsberg’s seat” when she retires…

    Hey, its the Chicago Way!

  12. PS: point number one, if summarized correctly by Mark N ( I am too lazy to go look at the filing) is flat out wrong.

    You can’t OPEN CARRY in SD County, or the rest of the state, by law,

    EXCEPT if you are hunting, with a license, on public land that is open to hunting, with a license and a tag, during the hunting season. And if you read the confusing statutes, that is also quite restrictive, for OC for hunting is

    superceded by County rules that say if
    EXCEPT if the municipality, agency, etc rules prohibits it, you cant,
    or if you are on private land, and you dont have written permission, you cant,
    or if you are on a county hiking or biking trail, you cant,
    or if you are on a public road, you cant….

    So, pretty much YOU CANT…Open Carry.
    Period.

    • Actually, you can go armed while hiking on state and federal land if that floats your boat, no license required, hunting, fishing, or otherwise.

      • I stand corrected- but with one note-

        having researched this carefully, and actually gone out and talked to LEOs in the area I was interested in hunting – to be sure I was getting it right, and to make sure I was giving a headsup to the appropriate authority in the many places I might like to hike, hunt, or target shoot. (and pick their brains on recent sign of wild pigs- who might know better, than the US Forest Service LEO, for example?)

        I was surprised how much difference of opinion, or lack of understanding of that right to open carry I found. Only the SD Sheriff got it, and even he suggested- just because there are a lot of young guys in other agencies who might not yet have as much experience dealing with armed citizens, and might get over-excited, to carry owb, chamber open on the trail if I wanted to reassure someone not to worry.

        I’d gotten the same advice, BTW, a year earlier from a Border Patrol supervisor who suggested caution hiking alone in an area known to have illegal grows- carry a sidearm, open chamber only if worried about mis-perceptions.

        One young buck Border Patrol gent was frank enough to say, “if he came across me looking all tactical”, (ie camo, AR, etc vs traditional orange hat and vest- not required for wild pig, btw)

        he would tend to draw down on me, as anything else. Of course, this was in an area that is practically the smuggler superhighway judging by tracks and Border Patrol activity. And not far from where a Border Patrol officer was ambushed and assassinated for his nvgs by narco’s. http://latimesblogs.latimes.com/lanow/2010/04/mexican-teen-gets-40-years-in-prison-for-killing-border-patrol-agent.html

        So I have complete sympathy for the careful approach LEOs have out there.

        And it needs to be understood- this is also EXACTLY why American Citizens need their own right to carry, for self defense, both in and out of their homes, urban, suburban, and rural.

        “When seconds count, the authorities are only minutes away…”

    • From the above pic, looks like POTUS would too.

      Just don’t let Shannon see that comment – she’s bound to be upset and plaster it all over social media as evidence of your aggression and indiscretion. ‘Cause she’s the bees’ knees and the cats’ meow, etc.

  15. “…law enforcement must be able to use their discretion to determine who can carry…”

    Extrapolating to a general statement: “[government] must be able to use their discretion to determine who can [exercise the Constitutional right].”

    In the meantime, I can’t stop but wonder if her husband or his wife have seen that picture. Among those of us who aren’t celebrity-politicians, a photo with such expressions taken by a PI could lead to an ugly court case. But then, I keep forgetting that some animals claim to be more equal than others.

  16. “Local law enforcement must be able to use their discretion to determine who can carry a concealed weapon.”
    How can anybody, with even a minimal amount of sense, see that as reasonable? Some dipshit cop gets to decide whether you or I should be allowed to exercise a constitutional right? I suppose when they refuse to issue, they’ll tell us, “well it could have been worse. We could have gang raped you.”

  17. “…so today am calling on the court to review and REVERSE its decision.”

    Well that’s a little bossy and presumptive. If I were a sitting judge I would have taken offense at that.

  20. I know my local police department was saying that they were waiting for their legal team to review the Peruta decision before adjusting any of their ccw policies. The officer in charge of the application process said to call back in a couple of weeks. I wonder how much longer this will set things back?

    • It shouldn’t change anything. They’re either going to let the case go en banc or not, the AG’s statement is little more than a request with no standing to force anything. The county COULD appeal, but that would probably freak out the states in the east.

  21. “Local law enforcement must be able to use their discretion to determine who can carry a concealed weapon,”

    Er… okay, well the court wouldn’t have had a problem with that if your state allowed general open carry.

  23. I don’t understand why the AG is asking to intervene. It seems to me like asking to be invited to a party the day after it’s over.

  26. Oh you guys. “Don’t worry the courts will save us from the politicians we have elected”!!!! This is what happens when democrats hold power. Since Sandy hook, every single piece of anti-gun legislation that has been enacted has occurred in blue states. Without exception. I realize this is an appeal of the 9th circuit ruling, but my point stands. The courts will not save us. When anti-gun politicians(democrats) are elected or appointed this is what they do. The best defense is to make sure they never hold office. In California, sad to say, a tipping point was reached years ago. You my friends are behind enemy lines.

  27. Hard to see how she has standing. She was asked earlier in the case if she would join it and refused, saying that CA State law was not the issue, the implementation of it in a county was.

    Now that she doesnt like the ruling she wants to join in? Where is the standing? This ruling will not chance one word of the law…

    • That was actually done in Richards v. Prieto, not Peruta–but both cases were argues to the same panel at the same time, and this same panel will decide the intervention motion, at which point her prior refusal will likely raise at least two judicial eyebrows (the dissenting justice believes that the State should have been a participant from the beginning). I think this is a circumstance where the AG gambled that the Ninth, with its liberal reputation, would follow the east coast circuits and is now scrambling because she guessed wrong. If he motion to intervene is denied, then the only avenue to have an en banc review is by one of the justices requesting it, putting the matter to a vote of the entire bench.

  28. “generally allows open carry in almost all unincorporated areas, except those close to population concentrations–and that this area is most of the county”

    Of course, virtually no one lives in the unincorporated areas of San Diego county (compared to the incorporated areas), but that’s beside the point.

  29. OK, everyone stay with me here for a moment. It’s gonna be a rough ride.

    For a brief moment in time, let’s assume that the trope the anti-gun people are saying is true. (No laughing!) That the mere presence of a gun creates a dangerous situation, and that we gun owners, who LOVE us some guns, are simply time bombs looking for the slightest provocation (Make my day bitches!) to start shootin and scootin. Following their own logic and arguments, I am finding it very difficult to understand how any of them are still alive. I mean, here we are “clinging to our guns and god” and they’re messing with our core beliefs, so it follows that (statistically speaking) someone, somewhere, should have already “gone off” and started sending lead downrange to eliminate the threats to the “belief system” as it were.

    What I don’t get is how anyone buys into their arguments.

  31. “Local law enforcement must be able to use their discretion to determine who can carry a concealed weapon,” California Attorney General Kamala Harris said earlier today.”

    The Second Amendment to the Constitution of the United States of America is NOT discretionary, it is an absolute…

  32. “Local law enforcement must be able to use their discretion to determine who can PERFORM A LAWFUL ACTIVITY,” California Attorney General Kamala Harris said earlier today.

    Fixed that for you, Kamala. Hugs.

    • Sheeple don’t demand anything; they accept what is allotted to them and cry when they don’t receive their entitlement. Otherwise they are unmotivated to do more than complain when government action costs them, at which time the state throws them a bone if necessary to secure a Democratic vote for more statism.

  34. That which we call a right loses its character as such when there must be a showing of a special need, greater than that of the average citizen, in order that that right might be exercised. Then it is nothing but a privilege accorded at the discretionary whim of a government official, the very thing the entire Bill of Rights was enacted to prevent.

    That several state supreme courts have concluded that concealed carry may be prohibited as in derogation of the public safety cannot be disputed; however, the right to bear arms in some manner cannot be denied. Although a State may impose time, place and manner restrictions on the bearing of arms, as they are permitted to do in other contexts, those restrictions cannot be so onerous as to virtually eliminate the exercise of the right. A “good cause” requirement, which grants local police chiefs and county sheriffs the power to prevent average citizens–and in some counties in the state of California all citizens– from exercising guaranteed rights is so destructive of the right as to contravene constitutional guarantees, and must necessarily fail.

  35. “If allowed to take effect, it could require officials throughout the
    State to treat a bare assertion that an applicant seeks to carry a gun for
    purposes of self-defense as good cause for issuing concealed-carry permits
    to individuals even in urban and other residential areas.”

    So your point is what exactly? Society’s emotions(In your opinion) is greater than the rights of the individual? I’d say “Be careful that’s a slippery slope.”, but you seem to have fallen off the cliff in one go.

  36. I suspect that the issue of “standing” will turn on who at the 9th makes the decision. If the decision maker is cut from the same corrupt piece of cloth as Harris and most of those infesting elected office in Kali than her request will likely be granted. Whether or not she actually has a basis for her request from a legal point is essentially irrelevant. The decision to grant or deny standing will be based on politics as usual.
    I was actually surprised that the 9th ruled as they did though it WAS a 2 to 1 decision. An en bank hearing will almost certainly result in the decision being overturned as the court is heavily packed with libtards. The lawyers arguing the Peruta case were lucky the panel that heard the case had a couple of judges who use logic rather than personal opinion to render decision.

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