Cruising Facebook at 0 dark thirty, I saw this comment on the TTAG feed by Edward Peruta. Mr. Peruta was reacting to the Ninth Circuit Court’s decision to rehear his case – throwing out San Diego’s “shall [not] issue” permitting system – en banc. As our man Dan pointed out, the Court’s action doesn’t bode well for Mr. Peruta or Californians’ gun rights. Or maybe it does . . .
If Peruta goes to the Supreme Court, the whole “shall issue” system may be struck down. Or not. In any event, we must never forget that these pro-2A court cases depend on the morality and perspicacity of defendants seeking justice. As with Otis McDonald, Dick Heller and a few others, Edward Peruta is the best of us, fighting for our rights and the rights of all Americans. He is our Gun Hero of the Day.
I really am quite concerned about this decision. Sure, it could be a huge win for the pro rights side of things. But we’re talking about the 9th. They seem to be kind of schizophrenic at best on this topic.
This is going to be a roll of the dice.
The original decision was written by two republican judges, with one democrat dissenter, Sidney Runyan Thomas, who happens to also be the chief judge of the 9th. Which is why this en banc is happening, he didn’t like that the appeal was upheld in the first place.
Across the US circuits en bancs consist of all judges on the circuit. The 9th is unique and different. Because it’s by far the largest – 29 judges total – full en bancs are logistically difficult as the judges live over such a vast area in many states. So the 9th has a different method for en bancs. It’s 11 judges – the chief judge plus 10 randomly selected from the other 28.
Since Thomas already dissented, he’s of course going to vote to overturn again. That leaves the other 10 judges. We’d need 6 of those to uphold to get a 6-5 majority.
Trouble is only 9 out of the 28, or 32%, are republicans. But we need 60% of the 10 to uphold. So on a purely random selection, we lose and Peruta is overturned.
But random selections can also go either way. Sometimes you can flip 6 heads in a row even though randomly it should be heads/tails/heads/tails. Once they make the random pick and announce the judges on the en banc we’ll have a better indication of the outcome.
Until then, what sucks is the original Peruta appeal has been voided by the 9th and cannot be relied upon or cited in other cases. Theoretically Sheriff Gore can today go back to his ‘may issue if the day of the week has the letter X in it’ policy. The final decision could take many months to come back, during which time technically ‘shall issue’ is null and void in CA again.
It’s really disturbing to think that CCW rights in CA (and the other states under the 9th like Alaska, Nevada, Arizona, Hawaii, Montana, Idaho, Washington) now depend essentially on a random lotto draw where there are very many more losing tickets than winning tickets.
“Sometimes you can flip 6 heads in a row even though randomly it should be heads/tails/heads/tails”
I’d like to point out that this is an example of the gambler’s fallacy. The odds of heads/tails is 50% for each toss, and previous results have no effect on future tosses. If you land on heads 6 times in a row, the odds of the next toss being tails is still 50%.
Mathematically speaking, you are correct.
However, the best bet by a slim margin is to bet on heads again. Because six heads in a row might be an indication it’s not in fact a fair coin and is weighted to come up heads. (Some people will insist it is “overdue” to come up tails and they will be wrong.)
Congratulations on pointing that out. I was fully aware of it and the gamblers fallacy, but chose to frame my argument textually in layman’s terms because it seemed silly to fill the post with heavy math. It was simply to illustrate the point that a random draw of 10 judges from a pool of 28 didn’t always come out at a straight 10/28 probability of the necessary 6 being on our side, there is a chance it could be better and a greater chance it could be worse. In infinite drawings it would average out to 10/28. On one drawing? Who knows.
But the more important point is this: how helpful is it to nitpick a simplified mathematical example in the face of what will LIKELY be an overturning of Peruta? Absent a reasonable and favorable deviation from the random mean, that’s what we’re in for.
Your genius mathematical quibbling simply distracts from the purpose of my post which was to lay out the situation facing us in a crucial and historic case and illustrate the odds of success to those readers who may not be familiar with the very rare and complex proceedings of a 9th en banc.
By all means continue to obsess about the gamblers fallacy. You’re quite correct. Happy? Me, I’m going to focus on the issue at hand – the likely overturning of what was originally a great decision for CA gun enthusiasts, and all other gun enthusiasts under the 9th’s jurisdiction.
Sometimes I really wonder about the POTG – if we can’t focus on defeating those who wish to deny our rights, rather than wasting our energy scoring debate points over our fellow gun enthusiasts for the sake of a few microseconds of fame on a gun blog, then we’ll deserve what we get.
It wouldn’t be TTAG if someone didn’t find nits to pick.
Each event is independent, but the probability of flipping 6 heads in a row, before the flipping begins is .5^6 = 0.0156.
Kendrick’s comment was excellent, with one caveat. At present, there are no CCW rights in California, Hawaii etc. The current situation – ‘Shall issue’ – really means, won’t issue for most of us. Therefore, as pro 2A folks in the affected states and territories, we have nothing to lose. Either the status quo is maintained or we win.
“If Peruta goes to the Supreme Court …”
I predict that it will not since the U.S. Supreme Court does not appear interested in hearing any more Second Amendment cases.
Agreed. SCOTUS is pretty much out of the 2A business. I think the reason is that Kennedy — the deciding vote in McDonald and Heller — is squishy.
Agreed. And Scalia and Alito (and probably Thomas) know that even if they could get four votes (Roberts, Scalia, Thomas, Alito) to grant cert on a “shall issue” challenge, they don’t want to do so unless they are reasonably sure Kennedy will join them, as it would run the risk of a 5-4 opinion authored by Breyer or Ginzberg. Such an opinion would likely eviscerate Heller/MacDonald, so they are playing it cautiously.
Agreed. Plus the four libtards won’t vote to grant grant cert in a 2A case because Kennedy might go along with the right wing again and mess up the whole Democrat fantasy of eliminating all the guns (and all of us).
So there we are, at a standstill in SCOTUS.
But not at the ballot box. Vote for pro-2A candidates. Don’t vote for Democrats. Don’t vote for RINOs. Hold politicians responsible.
Administratively, if the full 9th were to reverse and Peruta appealed, how long could the SC hold that appeal as pending, without deciding either to hear it or let the lower court’s ruling stand?
Is it possible to hold it beyond the current term, perhaps even years? I’m wondering whether it’s possible to hold it until a conservative President could fill a SC vacancy.
“I’m wondering whether it’s possible to hold it until a conservative President could fill a SC vacancy.”
That is the only hope we have of overturning the unconstitutional laws in the courts.
Knowing our luck the next vacancy will be to replace a retiring pro-gun justice. If uncer a pro-gun president, then we get the situation continuing as it has been.
The court has been very evenly split for decades now, it never seems to change.
This makes me wonder if the left will pressure Ginsburg to retire before Obama leaves office so that he can put another anti-2A Justice in her place.
I’m reasonably certain (would bet the big bucks) that Ginsberg will be gone before the election, and even more that, should Dems lose, she would be gone the day after the election, so that Yomama can have that one more bite of the apple. I don’t even complain, it makes real sense! She is unlikely to survive 4 more years, much less 8, and she believes in what she is doing.
Another interesting question, should she leave after the election, would be whether Republicans will ratify her replacement, or delay until a new prez takes office.
The exercise of rights in a free society does not depebd on the permission of a bunch of black robe-wearing activists. It is precisely their activism that exemplifies the need for the second amendment, and that may very well force the issue eventually.
Sadly, the Supremes’ unwillingness to quash obviously unconstitutional decisions by badly behaving circuits may very soon result in essentially permanent infringement of the right to bear arms for a great many law-abiding Anericans. For them, the soap box, the ballot box, and the jury box will have been exhausted.
That’s why we have the cartridge box.
It seems to me that this case gives us a countdown clock to the official declaration that our courts have lost their legitimacy, no? Oral arguments for Peruta en banc are middle June 2015, right? And we can expect a decision within 12 to 24 months, correct? Of course Peruta will immediately appeal to the U.S. Supreme Court. And how long can we expect for the Supreme Court to officially deny cert? 9 months after that? Or if the U.S. Supreme Court agrees to hear the case and issue a ruling (upholding just-cause in the 9th Circuit of course), that could take something like another 18 months, right?
So I imagine it will take at least 21 months after June of 2015 and possibly as long as 24 + 9 + 18 == 51 months or four years and three months after June of 2015. Thus we are looking at finality sometime between March, 2017 and September, 2019. Anyone with a better knowledge of U.S. Appellate and Supreme Court timetables care to improve my estimate?
At any rate I fully expect all of the courts to drag this out as long as possible.
You know, that is a good point. I believe this case will be the final straw that demonstrates when we have exhausted the soap box, ballot box, and jury box.
Sounds about right. I wish that wasn’t the case, but some seem determined to deny rights to responsible citizens.
Good post. I wonder if the exercise of the right will die with a whimper or if there will be massive civil disobedience.
Glad you chose to highlight this, Robert, since the original comment was on a post having nothing to do with Peruta.
Hero of the day, indeed!
yes he is. and he did it without being a douche ( open carrying a rifle in public).
At least he has the common courtesy of at least attempting to capitalize in his written communication.
Not sure how many more times I and others can say it guys. Unfortunately the 2nd amendment has almost never been applied to concealed carry in our legal tradition. Heller said you could ban it. The right to bear is the right to openly carry a firearm without a license, at least in “non sensitive” places. I don’t like it but unless you live in Vermont, that is your legal history. A legislature is free to do what they want with concealed carry. Someone like Justice Kagan, could not say she depends mostly on precedent and uphold a a ban on loaded open carry, even unlicensed open carry. Peruta may be barking up the wrong tree.
You have accurately stated the extra-legal (e.g. unconstitutional) nature of jurisprudence in the United States.
The problem, though, is that states like California and Maryland have criminalized both concealed and open carry. Thus 99% of Marylanders and probably 90% of Californians have no way to carry and not run afoul of the state.
Well, I guess it was too good to be true for the 9th.
Thanks to Mr. Peruta for all he’s doing to try and help others have the legal right to defend themselves.
Don’t forget, the 9th is in a constant tie for the most overturned decisions.
With who…the ATF?
Bill Gore…. Bill Gore……
Is this the same Bill Gore that gave the go-ahead to shoot an unarmed woman in the head, while she was holding her baby? Pretty sure it is. And if it is, this guy is a POS and needs to be tried for accessory to murder. But since he was a government employee at the time, he’s allowed to do that sort of thing.
I think you meant “may issue” will be struck down…
There has never been much doubt that the case was likely to go en banc. Given how strong the panel opinion is, whatever the en banc panel does or says, there should be a good case for a cert petition.
restore OPEN CARRY!!!!!!!!!!!!!!!!!
So, it’s basketball season. Or the end of it anyways.
So this en banc legalmumbojumbo. So it’s like losing the conference finals on a technicality but getting a bid to the national championships, to square off again.
Maybe you’ll win but there is a decent chance of losing.