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This from a Firearms Policy Coalition email blast:

In orders released moments ago, the Ninth Circuit Court of Appeals has ordered en banc rehearings in the landmark right-to-carry cases Peruta v. San Diego and Richards v. Yolo County Sheriff Ed Prieto.

From the filed orders: . . .

THOMAS, Chief Judge:

Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion and order denying motions to intervene shall not be cited as precedent by or to any court of the Ninth Circuit.

It is unclear if the cases will be heard separately or if they will be consolidated by the Court. A request to intervene by California Attorney General Kamala Harris remains pending.

A copy of the Court’s orders can be viewed here (Peruta) and here (Richards).

[h/t DrVino]

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  1. I am a bit confused here. Yes I have emailed FPC on this.
    Not sure if this is an en banc regardless of the motion to intervene, or have they sidestepped the issue?
    I can understand a rehearing in Richards, although Peruta if it stands settles Richards.
    They could combine them and hear both in an en banc. An en banc review isn’t necessarily a bad thing.
    The judicial system is complex. I guess a plain English explanation is in order here.

    • Very simple. A party can petition for rehearing–or, as happened here, one of the justices “sua sponte” asked for review. (No one knows, of course, which justice asked for review, but suspicion is that it was Justice Thomas, the dissenter in Peruta.) The procedure for determining whether to grant review is the same in either case. Because the majority of qualified justices voted to rehear the case, it is being reheard. Inferentially, the whole court will rehear as well the application of the Attorney General to be allowed to intervene.

      • Sounds like an appeal, but directed at the same court rather than the next level up.

        Which just seems odd, at least to a non-lawyer.

        • Yes, it is a rehearing of the same matter, but in front of an “en banc” panel of 11 justices randomly selected from all of the sitting active judges on the bench, plus the Chief Justice (in this case, the Chief Justice is also the justice who was the dissenter in Peruta). [The original panel on any appeal is three justices.] The en banc proceeding proceeds as a regular appeal, with an opportunity for rebriefing by the parties and by amici (“friends of the court”) and a new oral argument. Timelines are flexible, but expect that it will take a minimum of three to six months to complete the briefing, followed several months (or many months) later by oral argument. After that, the court issues its written decision–sometime. There are no deadlines in the US Court of Appeals. Unless expedited, give it a couple of years before a decision is rendered.

    • UPDATE:
      Here is what I have been informed.
      1. The Peruta case has essentially been wiped away, it no longer exists. Richards remains, although it was settled initially be the Peruta ruling. We suspect that both cases will be heard as a consolidated case, which is why it is being called a rehearing.
      2. The Kamala Harris en banc request to intervene remains open. We suspect that if she will be allowed to join the case, we will get a ruling on that a few months before the oral arguments in the en banc. Harris would need reasonable time to prepare arguments etc.
      3. The en banc review oral arguments are set for June 15th, 2015. We suspect that a ruling would be issued within 12 calendar months from the end of oral arguments.
      4. Out of 29 judges which make up the 9th circuit, 11 judges over see the en banc panel. We know one will be the descenting judge for Peruta. We won’t know who the others will be until 30 to 60 days prior to the hearing when it goes on calendar.
      5. Short term this looks bad. The fact they have thrown out the original Peruta ruling makes us think they may want to overturn it. This is a nice way or doing it without challenging the authority of the majority judges on the original three judge panel. We don’t know which judges will be on the panel so we don’t know their back grounds at this time.
      6. Long term this is good, in that even if the ruling is not favorable, there is the current case in DC, which we might combine and take to SCOTUS. The wide ranging rulings across the carious courts, might force the issue with SCOTUS, since we don’t have any singular precedent.

        • I don’t think they would reverse the individual counties decisions because they were largely voluntary. California allows individual counties to regulate the permit process to a great extent, many counties already had shall issue for the most part and they were never really bullied to go to may issue unless you county the media brainwash machine as bullying on the part of the state.

      • Why should justice Thomas get a spot? His opinion is already set. He is most likely the person who called for en banc review. Shouldn’t he recuse himself?

        I am speaking from a point of common sense, not the maze known as the legal system.

        And another year plus of waiting. California can go suck a big hairy bag. Im so done with this state.

        • Hang in there man…I live in NY State and the frustration is just as bad if not worse….can’t even get a handgun without a carry permit (whether unrestricted or restricted). Its insane.

  2. For those of us with limited understanding of the legalese, can someone explain the implications detailed above?

      • The rulings in question were that the San Diego (and Yolo county, in the Richard’s case) restriction of the issuing of carry permits was unconstitutional, which would apply and be legally binding to all future cases in the 9th circuit (since one panel of judges cannot overrule a second panel). The En-Banc measure is an attempt to overturn the ruling. This will likely lead to the ruling being overturned, but there is one bright side to the situation, since it would allow for an additional appeal, this time to the Supreme Court.

        For reference, the restrictions in question were that you needed to show “Good reason” to receive a permit, subject to review by the Sherrif. A supreme court ruling against those restrictions would essentially make shall-issue the law of the land.

        • While I do agree that would be the outcome if the current court were to hear the case the fact is that it took the 9th over a year to even say they wanted en banc. They also want to rehear Richards. They will drag this out and it is likely that the SCOTUS will not take the case or that the makeup of the SCOTUS will be different by the time they get to it.

          This is still very bad news.

        • Rehearing Richards is no surprise. The opinion in that case said, in essence, “See Peruta.” With the decertification of Peruta and the pending en banc petition by Sheriff Prieto in Richards, there was no way the court could rehear one without the other.

        • As I understand it, the issue is not with the good cause requirement per se, as it is required by state law. The issue is Sheriff Gore’s refusal to accept very much of anything as “good” enough cause. Permits in San Diego County are issued only very rarely and in documented cases of specific ongoing threats to the life of the applicant. (Plus, according to many critics, Gore has a history of granting permits to friends and political contributors. Allegedly.)

          The Peruta ruling required Mr. Gore to accept as good cause a general desire for self defense. The law still makes California may-issue.

          Meanwhile, just to the north in Orange County, permits are being issued with “for self defense” accepted as good cause.

        • You know one of the things that tell me that we no longer have freedom to exercise the RKBA supposedly protected under the 2A? “Defense against tyranny” is a stronger reason than self defense for any “may issue” permit under the spirit and intent of the Second Amendment but such a reason would be denied even faster than a reason of ordinary self defense. THAT alone is enough to tell most reasonable individuals that the right to bear arms is no longer really protected against government encroachment. We cannot, plainly and upfront, exercise the right to bear arms for one of the primary purposes that it was protected by the Constitution in the first place.

    • The legalese is basically that court decisions are initially done by 3 judges selected from the many on the court. Today enough of the non deciding judges voted to bring this decision to the entire panel of judges. It doesn’t happen often and the outcome is likely they want to over turn it, so it is very bad news.

      This is now to the highest level of the 9th circuit. Whatever is decided on this go around will be law unless the SCOTUS will take on the case.

    • simple….2A will not apply, will not be upheld. Public safety considerations (which are irrelevant to other causes of unsafety [like cars, plastic bags]) will trump all constitutional rights.

      9th circuit is second only to the D.C. court for liberal, silly rulings. 2A plaintiffs got lucky with the original 3-judge panel (one dissenting – Thomas).

      A ruling by the entire 9th circuit court WILL be precedent for all lower courts and jurisdictions under 9th court command. This case will end-up at the Supreme Court (maybe, unless they decline because two appeals courts are not in disagreement).

    • The Peruta ruling said denial of open carry AND concealed carry denies 2nd Amendment Right and hence is unConstitutional. IMHO.

  3. Damn! I was really hoping that this would not be allowed and set the course for legal concealed carry in CA. I suppose the en banc review could still come back without requiring “good cause” (and without interference by AG Harris). One can hope and pray, right? It seems that this could go back and negate the original results. It’s getting murky out here.

    • The 9th is very liberal and hates the 2nd Amendment. Let’s hope they can properly interpret the 2nd. If not, hopefully SCOTUS can finally destroy “may issue.”

      • I have a bad gut feeling when en banc overturns Peruta SCOTUS will deny cert. on this as well.


        • If they can get a conflicting ruling from another circuit on the same issue, SCOTUS will be a lot more likely to hear the case to resolve the conflict.

        • Not going to happen, AR. All of the circuits which have “may issue” laws (2, 3. and 4) have already weighed in, validating those restrictions in the interest of public safety (even, shockingly, without any evidence). The Ninth is the last. If SCOTUS does not take Peruta, assuming it is reversed, the show is pretty much over for carry outside the home in the slave states (absent legislative changes in massively blue states).

        • Mark N.

          “If SCOTUS does not take Peruta, assuming it is reversed, the show is pretty much over for carry outside the home …”

          Bwahahahahaha. You and I both know that the 9th Circuit is going to reverse Peruta (why else would they hear it en banc) and the U.S. Supreme Court will refuse to hear its appeal (since the U.S. Supreme Court refuses to hear any cases on the 2nd Amendment any more).

          Like I said in a recent post, the decision that you get from the courts now is nothing more than a lottery which depends on nothing more than which judge/judges hear your case. Our courts are illegitimate at this point.

        • SCOTUS is very slow on issues, I think we can all say that. While I PRAY for a massive circuit split to remain as the 9th and the 7th have ruled differently than the 2nd, 3rd, and 4th because SCOTUS likes to clean up circuit splits but in reality keep in mind that SCOTUS likes to let issues either resolve themselves or develop to the point where one case can knock out all the issues in one shot. Yes we did almost lose in DC v. Heller but 2A issues have consistently been 5v4. We just gotta remain strong and keep supporting the right groups and getting others to do the same!

  4. By any analysis, this is a bad day for CA gun rights. Given the character, political leanings and insane previous rulings of the 9th Circuit, the only real hope we now have is being heard by SCOTUS. And as SCOTUS seems very reluctant to hear these types of case…this is a very bad day for CA gun rights.

    • OTOH, when the 9th Circuit has finally ruled then the Circuit split will have largely settled down. It may be that 7’th is Pro-2A while 2’nd, 3’rd, 4th and 9th are all Anti-2A. I think that the only remaining Circuit not to have weighed-in will be the DC Circuit and a case is moving along there.
      Hopefully, then, SCOTUS would recognize that there is little opportunity for any of the remaining Circuits to make a 2A ruling on carry because all the States in the remaining Circuits have reasonably-liberal Carry laws. Then, SCOTUS could conclude that the issue for the right-to-carry is “ripe”.

      • Yeah I wish Hawaii would show some more improvements…not enough attention is paid to HI…you guys got lucky being in the 9th Circuit, its difficult having one lawsuit go to an anti-2A US Court of Appeals when its by its self. The fact that Hawaii’s carry lawsuits are lumped with Peruta is a good thing because it will have a more immediate effect on your laws.

  5. NOT good news. Now Peruta is depublished, it is no longer binding precedent, only persuasive authority. (Unpublished opinions are still citeable under Federal Court Rules.) There is the inference that a majority of the justices think the opinion was wrongly decided, so odds are the decision will be overturned. IF it is overturned, the effect on the possibility of Supreme Court review is uncertain. First, the “split” of authority between the Ninth and the Second, Third and Fourth that occurred with the publication of the original Peruta opinion (as to the extension of the right to carry outside the home and whether government interference is allowed) will have disappeared, which supposedly reduces the need for Supreme Court intervention. On the other hand, Peruta is the last chance the Supremes will have to rule on this issue, since every circuit with a “may issue” law will have weighed in, and therefore another case will not come along absent some legislative change.

    • Here is a point of view about what SCOTUS takes for review, by and experienced appellate attorney,

      I think its fair to say this outcome was not desired, by CA gun owners, but considered entirely likely, if not probable by those who hold to the political affiliation theory for predicting judge votes.

      IAW going to SCOTUS was always likely, one way or another, on Peruta.
      At least we have the dream team of Clements, Gura, and the rest, arguing on consolidated Peruta and Richards cases. Funded by NRA and SAF who will be working as a team.

      What the 9th has done is highlighted just how politically corrupt the 9th has been rumored to be, and the unconstitutional Executive Action by the AG, for a Democrat Governor, in a state with Democrat supermajority in state congress.

      CA becomes the poster child for what happens when a corrupt Progressive political machine rules all three branches of government without any checks and balances.

  6. It sounds like this is bad, which doesn’t surprise me after the micro-stamp ruling. The madness never ends here.

  7. Yes, this is bad. If we win the en banc, we will have gained nothing we did not already have. If we lose the en banc, we lose everything Peruta did. We literally have everything to lose and nothing to win. Furthermore, the Peruta ruling has essentially been undone pending the en banc, so it is no longer binding law. The only plus to this is that if we win it has nowhere to go but SCOTUS.

    • There are a number of counties that will not issue without “good cause” until mandate is issued in Peruta, so a win would be a good thing. And win or lose, this will be appealed to SCOTUS by the losing side.

      • The really unsettling aspect to all of this is that those justices know darn well what the Second Amendment means and how they should be issuing rulings. But they rule based on their own personal agenda, not the rule of law. These are dark times in the United States … although I guess you could argue that this sort of thing started with justices over 100 years ago. What we are seeing now is a more complete result of a long train of abuses and usurpations. Hmm, where have I heard that before?

  8. Sounds like in the long and short of it, the most Left Wing Court in the Country, with some “Executive Authoritay Influence” Holder, The Annointed One, et al, are going to try to grind Peruta into dust.

    No reach around, no flowers. No Guns. Nibble, nibble, bite, bite, it’s only the 2nd Amendment. Where’s the rally? Where’s the grass root uprising protests? Oh wait, Lee Greenwood was unavailable for comment, and Dancing With The Stars is on.

  9. That’s what people get who vote liberal.

    The world is still in turmoil, in spite of their laws, and they are blind to the fact!

    I’ll be sure to turn on my burners when they grope around my kitchen.

    SCOTUS is made up of another bunch of gutless wonders who are just pretending to care about the country!

    • I’ve never supported liberal progressive politicians and I don’t have much respect for those who do.

  10. Peruta was going to be appealed to SCOTUS, no matter who wins in the 9th.

    The $64,000 question is will SCOTUS take Peruta up for cert. Scotus does not publish why they decline, but one experienced appellate attorney has opined that the most likely to be reviewed are those appeals court decisions where there is a “square contradiction” between federal law and precedent, as in brilliant decision of Judge O’Scannlain citing Heller, McDonald, and the recent constitutional scholarship on original intent of the Founders on the meaning of “Bear Arms” for both a militia AND personal defense.

    Peruta, and Richards, which depends upon it for much the same issues, will be be argued, or contain Amici filings by CA Attorney General Kamala Harris. The 9th has not announced whether CA AG Harris will be allowed to intervene, since the big problem is that she declined to participate as a party in either Richards, or Peruta (until years after the deadline).

    Overturning the 3 judge panel that denied her intervention once already using the standard three part formula, will take some creativity, but that has not stopped the 9th before, and in the end, its technicalities, and the Peruta team had no objection to her request.

    Having the State AG as a party in Peruta thus increases the high visibility of a State AG defending her weak argument that the she was against it before she was for it….ie, Peruta undermines State law. This is the “back door challenge” to state law that was in Chief Judge Thomas’ dissenting opinion.

    Former Solicitor General Paul Clements argued on behalf of Peruta, as part of the team led by west coast attorney Chuck Michelle, funded by the NRA.

    Alan Gura, who argued successfully before SCOTUS in Heller, McDonald, and numerous circuit courts of appeal, including Palmer in the 2nd, represented Richards vs Sheriff Prieto in Yolo County, funded by SAF. Those two cases and Baker v Hawaii were heard the same day by the Ninth.

    SCOTUS prefers to hear from the elite few of Supreme Court experienced attorneys, not only out of respect for the Solicitor General, but mostly because they know it will be extensively briefed and well argued, and wont leave them open for a missing piece left uncovered later.

    Attorneys for Peruta and Prieto have long opined that this is a careful brick by brick strategy. Its frustrating as can be to laymen, like this noob, who dont understand the technicalities and the longgggg delays that many would consider foot dragging by political judges, who dishonor their oath to decid on the law, and the law alone.

    But thats how it works.

    The 9th could have easily denied en banc, and punted to SCOTUS, but given the reputation of the 9th, that was unlikely, given the simple fact of 2/3rds of the 27 polled were appointed by Democrats, including the last 4 appointed by Obama.

    Who ends up on the 11 judge panel is a coin-toss, but if the 9th rules on politics, as they have in past, then we should expect this to go to SCOTUS in 2018 at best.

    Until then, no open carry, no concealed carry, for the little people, for self defense as the good cause, to apply, in any county dominated by Democratic majorities, who elect the Sheriffs,

    except of course, for the big donors to the Sheriff, his approved insiders, the politicians, in other words-
    the Elite Who Know Whats Best for them…

    • That was an exceptional post and thank you for writing it. The following is no reflection upon you or your opinions. It was, however, conjured after reading the realities of your well articulated comment…

      As a free individual, I am practically speechless that the People, in 2015, will just accept this as “the way it is.” Perhaps our countrymen don’t really want Liberty. What passes as due process and redress of grievance today is pathetic from the viewpoint of the common man in American society. The People have more reason to issue a declaration of independence now than it did in the 18th century. We’ve come full circle from tyrant King to tyrant bureaucrats. We now see frank denial and delay of rights without any real attempt at window dressing. The way things are done might look good on paper or in a textbook but from the standpoint of an ordinary individual, it is tyranny.

  11. PS- cant edit it seems so pardon my tortured grammar – the most likely are those where the State law conflicts squarely with federal precedent. Having a State AG argue a CA9 rehearing that is decided as in conflict with SCOTUS precedent (Heller, McDonald) is only second to the US Solicitor General argue on behalf of the Federal Government, challenging a state law.

    BTW, the 6th CA noted the recent decisions by the other Circuits, as to definitions of strict vs intermediate scrutiny, are not so cut and dried as the Peruta en banc request. See Tyler v Hillsdale, a case about 922 issues, but see discussion starting on page 21, here.

    Peruta gives SCOTUS a chance to validate the infernences of McDonald and Heller for keep and bear OUTSIDE THE HOME, that are not yet validated, and to further define levels of scrutiny and how to apply, that are also ambiguous in 2A law. This is an area of interest for Justice Kennedy, the administrative overseer of the 9th, and one of the original Heller 5, who has reputedly gone squishy on 2A after Sandy Hook.

    It takes 5 to decide to take up a case. What happens after is up to the litigators to persuade the Justices.
    Peruta also solidified the “originalist” vs “judicial activist” interpretation of what the law means, and the proper roles of judges. And since this is the last district to weigh in, its very important.


      “By the same token, he said, some critics have claimed that the decades, or the centuries, it took the court to declare an individual right to keep and bear arms “means that it doesn’t exist.”

      “I’m not so sure,” said Kennedy, who was part of Scalia’s 5-4 majority in the 2008 ruling.”

      This could mean just about anything. He could be responding to the critics saying the right doesn’t exist, and thus refuting them, or he really isn’t sure about it in the first place. I don’t think anyone has any audio of the meeting. Of course the Huffington Post tries to spin it like he regrets his own decision or something.

      • Nine out of nine justices agreed that the 2A guarantees an individual right to keep and bear arms. That will not change. Where they parted ways on the issue of the militia clause, and whether that the right was protected only in the context of serving in a militia, and it is unlikely that those four votes will change, although Kagan’s enjoyment of firearms and hunting with Scalia may change the math.

        • bottom line is:
          when it comes to deciding the limits of “infringement” allowed, SCOTUS will determine the government (any government) has an overriding (they call it ‘compelling’) interest that justifies whatever infringement the government wants. oddly, no one has yet argued that all governments, at all levels have a ‘compelling’ interest in regulating/controlling every aspect of personal life.

  12. I’d wait for a considered explanation from Chuck Michele and NRA on this latest development, as they are the lead attorny and funder on Peruta, and usually give a really good take in a day or two. is the CA gun rights forum, where you will find much more well-informed and articulate opinion, than mine.

    Maryland Shooters has a section called National 2A issues with some very astute posters, also.

    Be interested in what Eugene Volokh has to say, since much of the scholarship praised on Peruta was from he and his collaborators in constitutional law. He is now hosted at WAPO, making him one of three slim reasons to read that progtard rag, IMHO.

    • Articulate? I visit that forum everyday but will not join because I can’t stand the constant sniping. Apparently there was some kind of a confrontation between the Richards attorneys and the Peruta attorneys at the courthouse just after oral arguments, sniping that continued on the CalGuns forum afterwards. It was nasty and unpleasant.
      Fabio Gets Goosed is the best analyst of all of them, even if he loves being entirely vague. He is almost always correct in his prognostications, and he is an attorney well versed in federal appellate procedure. Others not so much. If you want less sniping, The Firing Line Civil Rights forum is far superior to CalGuns, notwithstanding that CalGuns Foundation is at the forefront of many of these battles.

  13. I hear what people are saying- big disappointment.

    My take is the opposite. Peruta is a Supreme Court trifecta. On top of all it had going for it, we now have a questionable procedural issue (the court bent over backwards to resurrect this case when Gore declined to appeal).

    Harris will be in the middle of a campaign when this hits the court. I think she could care less about the legal arguments, she will want to look good for her donors. She’ll be pushed to make all sorts of inane arguments, and overplay her hand.

    I’d bet a shiny new Wilson Combat 1911 this lands at the Supreme Court.

    • +1 on the SCT Trifecta.

      Harris is an ambitious politician, and competent or not, it doesnt matter in CA. If the Democrat machine in SF and Sacramento want her to take DiFis seat, thats how it will go.

      CA is out of step with the rest of the country on 2A laws, and CCW. The Pew Research surveys of public opinion over many years, for no more gun control laws, and the 2014 election is proof enough of the great sea change underway.

      CA will simply become the poster child for unconstrained Left-Progressive marxism that has never worked, in history, and will fail after considerable pain, in comparison to other states that uphold the constitution and freedom from a tyrannical state.

      • Harris’ political ambitions are essentially irrelevant, as there are no contenders that can match her lead, except for Ms. Rice, who has declined to run. There are no known Republican challengers, or if there are, they are hiding in the woodwork. The Republican Party in California refuses to spend any money on any campaign it expects to loose, so no one runs. Funny how those self-fulfilling prophesies work. So as of right now, she is a shoe-in. On top of that, she won’t be writing the brief.

    • There is no procedural issue with respect to the motion to intervene, and the court did not have to “bend over”, backwards or forwards, to rehear the case. In EVERY application for en banc rehearing, ANY nonrecused sitting justice may request that a case be reheard, and when one does so, a vote of the entire court is taken on the issue. That is PRECISELY what happened here. One of the justices, no one knows who but speculation is that it was (now Chief) Justice Thomas, requested rehearing. There was a vote to rehear. Nothing funny about that at all. Harris’ application for rehearing of the denial of her motion to intervene has not been decided, must less her concurrent petition for rehearing of the entire matter (that is contingent upon her being granted standing).

      • Granting intervention at this late stage is procedurally questionable and leaves the case open to appeal on that alone. The SCT does so love to take on procedural issues.

  14. My closing thoughts. I think it would have been better if the Ninth had not granted review, and that the defendants had been the ones appealing to the Supreme Court, primarily because of the strength of Justice O’Scanlain’s opinion. Then you add in that the two plaintiffs were represented by extremely able counsel, guaranteeing that the issues will be thoroughly explored. But that was not to be, notwithstanding the fact that the Circuit knows full well that any decision it makes will be appealed.
    While it entirely premature to speculate as to what the panel will do, there is a substantial risk that the panel will craft its opinion in such a way as to avoid deciding the constitutional issue, taking potential SCOTUS review off the table. But we will have to wait and see. We can revisit this conversation after oral argument, as that may give considerable clues as to the make-up of the panel and the direction in which it is leaning.

  15. I finally got fed up with this PRK. I am moving out of this Communist Republik this Summer. I can’t wait to wipe the dust off my feet. Good riddance. This state is broken, and cannot be fixed.

  16. Shortly after the Peruta decision, Orange County started issuing carry licenses based on applications stating “self defense” as the “good cause”.
    Since the en banc vote, Orange County has returned to their previous policy and procedure.

    This shows the capricious and arbitrary behavior of issuing authorities in a may-issue regime.

    • This shows the capricious and arbitrary behavior of government when it is permitted to redefine shall not be infringed. That’s the real problem.

      But, yeah, I also agree with your comment.

  17. It is with great disappointment and distrust now in the process that I watch this unfold.

    A sound opinion has been essentially washed away at the whims of the liberal majority of the 9th. This system is a mockery. Oh we don’t like this opinion so we vote for a “do over”. What a joke.

    Peruta will be overturned you can bet on it.

    The only hope left at that point is that the SCOTUS finally grants cert to one of these cases to vet out the bear component to the RTKB issue. And when that happens who knows.

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