Peruta v. San Diego

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There are no hard and fast timelines for the Court of Appeals to act; at best, timelines are mere recommendations to keep things moving. My experience with the Ninth is that things happen "eventually," but not according to any defined schedule. If for example, a vote occurs declining to grant en banc, and one or more justice dissents, the result of the vote will not be released until the dissenting opinion is completed.
 
This is a very unhappy development. Who is appealing, i.e. who will argue for the state? Gore says he's out, AG Harris has not yet been granted intervention (though the order denying intervention has also been struck). What a mess.

I having trouble imagining any way this ends well, unless SCOTUS grants cert, but it it's probably 2 or 3 years from a cert petition now.
 
Holy Crap! Not only does this not look good, it also has no date of the hearing.
Any ideas how much longer the 9th can delay this?
And is it normal for the decision of the previous 3 judge panel to not be allowed as precedent?
 
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is it normal for the decision of the previous 3 judge panel to not be allowed as precedent?
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En-banc is not a normal thing that happens all the time . It's my understanding at this point the other ruling means nothing . It will be like it never happened . Reason being is the outcome of the en-banc will now be the final say in CA not the 3 judge panel
 
Quote from judge Thomas

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.
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OK so the court says Peruta can no longer be used as precedent , and you can't bring up knew arguments that were not raised in the case before .

Question :
How much of what we all thought was a well thought out , well researched ruling can we use . There was a lot of research and historical analysis in that ruling . I guess what I'm asking is how much of that ruling can they just cut and paste to there briefs or oral arguments ????
 
The Peruta arguments will be incorporated for the en banc review, as they emanated directly from Heller, McDonald, Moore, and even the (overturned on appeal) Woolard case in MD. The arguments are sound; are based squarely on the Supreme Court's reasoning in Heller and MCDonald and remain as compelling as ever.

I suspect when (not if) the ninth circuit overturns Peruta decision it will closely parallel Judge Thomas's dissent in the original three-judge panel decision.

They will seize on language in Heller, absent the essential context for it, that concealed carry is not protected under the second amendment. But in Heller, in each cited case where a concealed carry ban was upheld, there was open carry available to satisfy the right.

Setting aside the absurdity of relying on California's (then) unloaded open carry requirement, the original district court decision with Judge Irma Gonzalez relied on (unloaded) open carry to satisfy the right. It was used as justification for discretionary issuance of CCW licenses. But even unloaded open carry was since banned by the CA legislature, strengthening and simplifying the plaintiff's argument in Peruta.
 
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It would be interesting to see how Thomas's logic would apply in a state like Florida or Texas where concealed carry is shall-issue but open carry is banned. Using this judge's logic, States would be forced to either allow open carry firearms in order to continue satisfying the right to bear arms or they could be permitted to foreclose the right altogether.

Of course, shall issue states could continue to license concealed carry, but if the right to bear is only a right to open carry it ignores the preference of almost all shall issue states and the vastly more common and accepted social norm today of discrete concealed carry.

The original basis for bans on concealed carry was that it was deemed by society to be underhanded, lacking in honor, and the practice of criminals.

In modern society, it is now open carry that is often deemed brutish and uncivilized, and it is far more often open carry that is feared and a claimed source of social disruption.

Based on the microscopic .007% revocation rate of licensees, it is clear that licensed concealed carry is hardly the practice of common criminals. . . in fact, the opposite could not be more true.
 
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maestro pistolero said:
It would be interesting to see how Thomas's logic would apply in a state like Florida or Texas where concealed carry is shall-issue but open carry is banned. Using this judge's logic, States would be forced to either allow open carry firearms in order to continue satisfying the right to bear arms or they could be permitted to foreclose the right altogether.
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This is what happened in Ohio. The Ohio Supreme Court ruled that the state's constitution guaranteed a right to bear arms, so if the legislature chose to prohibit concealed carry, then open carry was necessarily lawful. That led to the "open carry-ins" that resulted in the passage of concealed carry permit legislation.

MP said:
Of course, shall issue states could continue to license concealed carry, but if the right to bear is only a right to open carry it ignores the preference of almost all shall issue states and the vastly more common and accepted social norm today of discrete concealed carry.
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It could go the other way. The 2nd Amendment (as well as the constitutions of many states) only mentions a right to bear arms, not the mode of bearing. It hasn't happened, but a state could theoretically allow permitless concealed carry but require a permit to open carry, and still be within the Constitution.
 
This is what happened in Ohio. The Ohio Supreme Court ruled that the state's constitution guaranteed a right to bear arms, so if the legislature chose to prohibit concealed carry, then open carry was necessarily lawful. That led to the "open carry-ins" that resulted in the passage of concealed carry permit legislation.
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Yup . . . and that is where Judge Thomas' arguments could lead, though I suspect Thomas would backpedal from protection of open carry as well. Once a zealot . . .

I've said it many times, but if there's one thing an anti-gun zealot abhors more than knowing his or her fellow citizen is armed, it is having to actually see the darn thing.
 
Yup . . . and that is where Judge Thomas' arguments could lead, though I suspect Thomas would backpedal from protection of open carry as well. Once a zealot
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I am no lawyer, and haven't read all the case arguments, but I would suspect more of the same "core right" and "in the home" nonsense or variations thereof than admitting that some form of carry must be allowed...unless they latch onto "unloaded carry."
 
.unless they latch onto "unloaded carry.
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If that's all I can get , I'll take it . Well only if I can carry a full mag in my left pocket while my gun is on my right hip . My guess is there will be no way they allow the person to also carry ammo on there person as well . :rolleyes:
 
raimius said:
I am no lawyer, and haven't read all the case arguments, but I would suspect more of the same "core right" and "in the home" nonsense or variations thereof than admitting that some form of carry must be allowed...unless they latch onto "unloaded carry."
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I don't remember for sure, but I believe Justice Alito in the McDonald decision stated pretty plainly that the core right protected by the Second Amendment is the right to be armed for self defense. Nowhere in either Heller or McDonald did Justice Scalia or Justice Alito limit the scope of the 2A right to "in the home."
 
Heller invalidated the requirement that a firearm be disabled. The right is to a functional firearm for ""immediate use for self-defense." Just because the scope of the Heller case was the home does not mean that a defensive firearm outside the home can be required to be nonfunctional, i.e. unloaded.
 
I agree completely, but we've seen a lot of judges use the "in the home" verbiage and twist that to mean outside the home gets "intermediate scrutiny"--which then turns into rational basis by another name...and they rule against us.
 
Should the argument not be as simple as "does a person have the RIGHT (not choice)to defend ones self outside the home" ? That question need not include any weapon . Do we have a RIGHT not to die at the hands of another ? That question must be answered first before we move on to the next step . The next step is , does the person defending his or her self have the RIGHT (not choice)to use at least equal force if not overwhelming force to save ones own life .

If the answer to both is yes (which I believe it already is ) the case should be closed . Give me my holster please :)
 
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