Peruta v. San Diego

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I think a remand to district court is possible in light of Judge Irma Gonzalez reliance upon unloaded open carry to satisfy the right (leaving aside the stupidity of requiring an unloaded gun for defense). CA subsequently banned even unloaded open carry.
 
Peruta losses , conceal carry not constitutional

http://cdn.ca9.uscourts.gov/datastore/general/2016/06/09/10-56971 6-9 EB opinion plus webcites.pdf

190 page opinion :eek:

It seems they did not rule on the actual thing the case was brought for . Peruta claimed the good cause part of the statute was unconstitutional because one needs to show a better reason then other law abiding citizens . It it because they say conceal carry in not constitutional , therefore it can be regulated in any way ??
 
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well you dont want to appeal this to a supreme court where a 4-4 tie results in the Appeals Court decision standing.
 
Interesting how these justices always cite historical examples when it suits their ideology (or when they think it does), but yet will overturn historical examples when it doesn't (such as same-sex marriage, women's rights, etc...)---which BTW, I actually am all for right to same sex marriage and women's rights, but there is little historical precedent for either, so going by history would be a bad idea for either one.

They are correct that historically, laws restricting concealed carry were normal, but not laws regarding open-carry. When they restricted concealed carry, they meant you had to carry openly, not that you couldn't carry at all. So at most, the 9th Circuit was selective in their history it seems, as I haven't read the ruling, but if they went fully by history, they would have said that historically, there were laws restricting the concealed carrying of arms, but not the open-carrying of arms because it was expected that if one carried, they'd do so openly. Being that California now bans open carry, and being that concealed carry today is seen as the equivalent of how open-carry used to be, i.e. the acceptable way of how to carry a firearm in public, then it can be ruled that concealed carry is in fact protected unless or until the state legalizes open-carry again. In addition, laws regarding concealed carrying were done before the Bill of Rights was applied to all of the states.

The only thing I don't get is, why was this lawsuit brought in the first place? Didn't the plaintiffs realize that they would probably lose? It's not nicknamed the 9th Circus by gun rights proponents for nothing!
 
odd case. the plaintiffs won, the defendant (San Diego) announced they would not appeal, and then in came the AG wanting to be made a party to the suit, even though their time to do so had long passed, so they could appeal. the AG was eventually granted standing, and thus appealed and won.

i'd love to see this whole thing tossed out for lack of proper standing by the AG and revert to the lower court decision.
 
Being that California now bans open carry, and being that concealed carry today is seen as the equivalent of how open-carry used to be, i.e. the acceptable way of how to carry a firearm in public,
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That's really the point now . CA made the choice that conceal carry is it's preferred metthod . They did so when they banned open carry .

oh but wait there's a bigger problem with all that . When Peruta filed , open carry was still allowed in CA . All be it , open unloaded with ammo close by :eek: yep that was the law at the time Peruta filed his case . So the fact CA had "open carry" (cough cough , choke choke) . They could not argue they wanted any outlet because if they just asked to be able to carry . The court would have said " well you can open unloaded carry " so case dismissed . So they only argued for conceal carry and really all they really were arguing was the good cause part of the statute .

Some time later CA banned open carry pretty much across the board . My understand is the fact Peruta did not argue for both open and concealed or at least some outlet . He could not bring up open carry as a main part of his suite when arguing at the 9th . This makes it easy on them because they don't have to address the open carry aspect of the law . Only what is brought before them and how it applied at the time of the filing .

They said as much in the opinion
Plaintiffs contend that the good cause requirement for
concealed carry, as interpreted in the policies of the sheriffs
of San Diego and Yolo Counties, violates the Second
Amendment. Plaintiffs’ arguments in the two cases differ in
some particulars, but they essentially proceed as follows.
First, they contend that the Second Amendment guarantees at
least some ability of a member of the general public to carry
firearms in public. Second, they contend that California’s
restrictions on concealed and open carry of firearms, taken
together, violate the Amendment. Third, they contend that
there would be sufficient opportunity for public carry of
firearms to satisfy the Amendment if the good cause
requirement for concealed carry, as interpreted by the sheriffs
of San Diego and Yolo Counties, were eliminated. Therefore, they contend, the counties’ good cause requirements for
concealed carry violate the Amendment. While Plaintiffs
base their argument on the entirety of California’s statutory
scheme, they allege only that they have sought permits to
carry concealed weapons, and they seek relief only against
the policies requiring good cause for such permits. Notably,
Plaintiffs do not contend that there is a free-standing Second
Amendment right to carry concealed firearms.
We do not reach the question whether the Second
Amendment protects some ability to carry firearms in public,
such as open carry. That question was left open by the
Supreme Court in Heller, and we have no need to answer it
here. Because Plaintiffs challenge only policies governing
concealed carry, we reach only the question whether the
Second Amendment protects, in any degree, the ability to
carry concealed firearms in public. Based on the
overwhelming consensus of historical sources, we conclude
that the protection of the Second Amendment — whatever the
scope of that protection may be — simply does not extend to
the carrying of concealed firearms in public by members of
the general public.
The Second Amendment may or may not protect, to some
degree, a right of a member of the general public to carry
firearms in public. But the existence vel non of such a right,
and the scope of such a right, are separate from and
independent of the question presented here. We hold only
that there is no Second Amendment right for members of the
general public to carry concealed firearms in public.
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Now what they should have done since the laws had changed . They should have sent the case back down rather then rule on it .
 
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Not only yes but there is a case at the 9th right now on open carry Nicholes vs something I think is the name . Sorry can't find a link right off hand .
 
the defendant (San Diego) announced they would not appeal, and then in came the AG wanting to be made a party to the suit, even though their time to do so had long passed
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It might have something to do with the fact that AG Harris is running for a Senate seat.
 
Tom

That right there is a scary thought . Are country is in big trouble if a senate election would influence a 9 judge panel . Not saying it didn't or never has . Just pointing out that would be sad for not only the country but are side of the argument .
 
The decision was expected, so in that light, I was not disappointed. What did surprise me was the breadth of the decision, as I will show in just a moment. First, let's look at at what this En Banc court signaled, right at the start.

While Plaintiffs base their argument on the entirety of California's statutory scheme, they allege only that they have sought permits to carry concealed weapons, and they seek relief only against the policies requiring good cause for such permits. Notably, Plaintiffs do not contend that there is a free-standing Second Amendment right to carry concealed firearms.

We do not reach the question whether the Second Amendment protects some ability to carry firearms in public, such as open carry. That question was left open by the Supreme Court in Heller, and we have no need to answer it here. Because Plaintiffs challenge only policies governing concealed carry, we reach only the question whether the Second Amendment protects, in any degree, the ability to carry concealed firearms in public. Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public.

The Second Amendment may or may not protect, to some degree, a right of a member of the general public to carry firearms in public. But the existence vel non of such a right, and the scope of such a right, are separate from and independent of the question presented here. We hold only that there is no Second Amendment right for members of the general public to carry concealed firearms in public.
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Generally, I would say that you need not read any further. The rest of the decision is the mechanism this court arrived at the above.

Reading all of this, you might be thinking that we need an open carry case. you would be forgiven in thinking in those terms. But you couldn't be further from the truth, however.

On page 52 of the opinion, the court agrees with a separate concurring opinion by Judge Graber that signals what the court will do when such a case comes before it (yes, yes. I here some of you screaming about the Nichols case, which is now before the 9th Circuit). Let's read what the majority says about Judge Grabers separate concurrence:

Our colleague Judge Graber concurs fully in our opinion, but writes separately "to state that, even if we assume that the Second Amendment applied to the carrying of concealed weapons in public, the provisions at issue would be constitutional." Graber, J., concurrence at 52. Even if we assume that the Second Amendment applies, California's regulation of the carrying of concealed weapons in public survives intermediate scrutiny because it "promotes a substantial government interest that would be achieved less effectively absent the regulation." Id. at 58 (internal quotation marks omitted). For the reasons given in our opinion, we do not need to reach the question addressed by the concurrence. But if we were to reach that question, we would entirely agree with the answer the concurrence provides.
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"[P]romotes a substantial government interest that would be achieved less effectively absent the regulation." <-- That is the telegraph whereby the court will decide the question of open carry under CA law.

And that is also what I mean by the breadth of this opinion. It completely reads "bear" out of the text of the amendment. In short, in a State under the jurisdiction of the 9th Circuit, if that State wishes to curtail your right to bear arms, it can do so, with the blessing of the 9th Circuit Court of Appeals.
 
What you are arguing, as I understand it Al, is that when the issue arises, the Ninth will likely conclude that carry outside the home is entitled only to "intermediate scrutiny," and thus reasonable restrictions on that right are constitutional? But how would that jive with California's current urban open carry ban? I think they hinted at, by their long list of places where handguns may permissibly be carried openly, that a ban on urban carry will pass muster, because, well, just because. Of course, it should be made clear that the Ninth Circuit's version of "intermediate scrutiny" is hardly more than rational basis review by another name--a review that places the interest of the "public" (meaning of course the government, interesting how those two have become conflated) above those of the individual, Heller notwithstanding. (See, e.g., Jackson v. San Francisco).

Now things do get rather interesting--or twisted. Once having held that there is no 2A right to concealed carry, they have to recognize a 2A right to open carry (at least in some fashion)--or to declare that the 2A does not apply outside the home. The latter would be difficult to do--the State of California admitted during oral argument to the panel that there is a right to bear arms outside the home (strangely not mentioned in the decision, since it was an admission). They are then trapped into overturning the open carry ban. And that will present the State with an interesting conundrum. Does it rewrite the law to allow open unloaded? (Which is more likely than open loaded, given the anti-gun animus). This would be the most expected outcome, since the legislature is well aware of the open unloaded demonstrations (often at Starbucks locations) that brought complaints from the soccer moms to the PD (and to public officials). While before they felt it necessary to do away with this practice, they may reconsider, knowing that the police will invariably be called multiple times, carriers will be harassed and "encouraged" not to open carry (at the point of a gun no doubt), leading to a general decline in the practice 9as had been the case between 1968 and 2012). Meanwhile, the current CCW licensing system will remain in place. Currently that system is applied disparately. SF is "no issue," LA is virtual no issue, but most of the interior and northern counties are "shall issue."
 
Al , Are you saying that concurrence paves the way for the open carry ruling to read something like this
California's regulation of the carrying a firearm openly in public survives intermediate scrutiny because it "promotes a substantial government interest that would be achieved less effectively absent the regulation
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The thing that makes that BS is the state did not show any evidence licensed people carrying is a risk to the public safety . The state only had one declaration that only concluded more guns being carried equals more violence .

See here at time 12:20 through 18:50
http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000007886
 
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It is being reported that some 2500 concealed carry license applications have been rejected by they San Diego sheriffs office due to the 9th circuit court's decision.
 
Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public.
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Missing from this stalking-horse of an argument is the reality that community norms have changed. Whereas in the distant past, respectable citizens might have been allowed to, and might have, openly carried, and concealed carry was the mark of a shifty character up to no good, today that's not true. Open carry in an urban area (one of the minority where it's legal) presents a risk that someone will panic, and it draws passive scrutiny even where it is legal and common.

The norm everywhere is clearly concealed carry, by a wide margin. But the judges on the 9th apparently have trouble seeing down through the clouds of their ideology to Earthly realities. They see a theoretical out, and they take it.
 
tyme , Although I agree with your historical annalist , I don't agree a court should change law based on the new norm . I personally don't see there ruling as incorrect as far as that aspect of it . On the other hand as I believe I stated above ( I've wrote in a few forms now not sure what all I wrote where ) They never should have ruled on the case . The law had changed while Peruta wound it's way through the court meaning there is no path to the carrying of firearms in public by members of the general public as it stands now .

IMHO they should have sent it back for the lower court to rule on the cases as the law sits now . Example , If the law had changed to allow CC would they have still ruled CC is not protected . No because the law changed therefore the case changed and they would have mooted it . If that's even a term :o
 
Responding to both tyme and Metal God, not only have the community norms changed, but California, during the pendency of the appeal, banned open unloaded carry (open loaded carry having been banned in 1968 under a bill signed by Gov. Reagan). The majority conveniently finessed this huge issue, noting that Plaintiffs did not raise it--because of course they could not since it was not an issue when the underlying judgment was entered. Thus, the court avoided the issue that California essentially bans the carry of arms in all urban (incorporated) areas unless one has a CCW, and that for residents of the most heavily urbanized areas, such as San Diego, Los Angeles, and San Francisco, there is no possibility of the majority of citizens from obtaining a carry license. Licenses are granted only to those with a "special need" greater than the average citizen. Which philosophically makes no sense: if it is true, as the State conceded at oral argument, that the right to "bear" exists outside the home, and that the "core" of the right is self-defense, how can it be a guaranteed right if only the few are allowed to exercise it?

Time will tell. But at this point, I am essentially hopeless for California, even though I live in a "virtual shall issue" county.
 
tyme said:
Missing from this stalking-horse of an argument is the reality that community norms have changed. Whereas in the distant past, respectable citizens might have been allowed to, and might have, openly carried, and concealed carry was the mark of a shifty character up to no good, today that's not true. Open carry in an urban area (one of the minority where it's legal) presents a risk that someone will panic, and it draws passive scrutiny even where it is legal and common.
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While I agree norms have changed, I don't believe that such changes should necessarily affect the Constitution. If we wish them to, we can amend the Constitution to more clearly reflect our current norms.

So while I agree with the 9th that there may be some few & generally ancient proscriptions against concealed carry, they recoiled from their duty of dealing with the elephant in the room, which is that no form of "and bear" exists for the lion's share of the people of California.

They have not always shown such reluctance to deal with the broader issue, and therefore their cowardice and bias here reeks all the stronger.
 
It's not about changing the constitution.

Banning concealed carry because open carry is (or was, when the case began) allowed is not constitutional. Claiming it's constitutional is the same logic used to argue that a ban on handguns is constitutional because people can always have shotguns.

We don't need a constitutional amendment saying "...the right to keep and bear semi-automatic handguns..." so we don't need a constitutional amendment saying "...the right to keep and bear—and conceal in public—arms..."
 
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