Peruta v. San Diego

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It's actually astonishing that this comes from the 9th. :eek:

I haven't had time to read the whole thing yet but it really blows my mind.

Whole sections could be written by an Originalist.

In short, the meaning of the Second Amendment is a matter not merely of
abstract dictionary definitions but also of historical practice.
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It begins with the pre-ratification “historical background
of the Second Amendment,” since “the Second Amendment . . . codified a preexisting
right.” Heller, 554 U.S. at 592 (emphasis omitted). Next, it turns to
whatever sources shed light on the “public understanding [of the Second
Amendment] in the period after its enactment or ratification,” see id. at 605–10,
such as nineteenth-century judicial interpretations and legal commentary.
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To arrive at
the original understanding of the right, “we are guided by the principle that ‘[t]he
Constitution was written to be understood by the voters; its words and phrases
were used in their normal and ordinary as distinguished from technical meaning,”
unless evidence suggests that the language was used idiomatically.
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“
Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even
future judges think that scope too broad.”
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To be sure, those are mostly quotes taken by the 9th from the Heller decision but the idea that the 9th would take them so simply and directly, given their rather extremist past decisions is... remarkable.
 
Doesn't this mean we have a circuit split between CA9 - Peruta and CA4 -Woollard ?
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Basically 7th and 9th versus 2nd, 3rd, and 4th, at least on general approach. However, let's wait to see if there is an en banc decision and its results before we get too happy.
 
Basically 7th and 9th versus 2nd, 3rd, and 4th, at least on general approach.
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Close. Moore in the 7th was pro-carry-in-some-form but didn't slam the door shut on may-issue the way the 9th just did :). We got shall-issue because of the political wrangling after the Moore decision came down.

To a degree, the 9th is standing alone against the cases from New Jersey, New York and Maryland (Woolard).
 
Close.
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I was referring more to the fact they both recognized the 2A applied outside the home, not the exact holdings. That's why I qualified it by referring to their "general approach." Hopefully, the Supremes will take a case and then rule favorably on carry outside the home.
 
Wow, there are a lot of useful bits in this ruling that support the 2A. I'm very eager to learn whether or not the state will be taking this to the next level.
 
I just had a four letter word moment reading the first footnote.
(3) he faces
immediate, grave danger provided that the weapon is only carried in “the brief
interval” between the time law enforcement officials are notified of the danger and
the time they arrive on the scene (where the fleeing victim would obtain a gun
during that interval is apparently left to Providence). I
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I wonder if Moore influenced the decision.

To answer my own question, from the opinion:

Speakers of the English language will all agree: “bearing a weapon inside the home” does not exhaust this definition of “carry.” For one thing, the very risk occasioning such carriage, “confrontation,” is “not limited to the home.” Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012). One needn’t point to statistics to recognize that the prospect of conflict—at least, the sort of conflict for which one would wish to be “armed and ready”—is just as menacing (and likely more so) beyond the front porch as it is in the living room. For that reason, “[t]o speak of ‘bearing’ arms within one’s home would at all times have been an awkward usage.” Id. To be sure, the idea of carrying a gun “in the clothing or in a pocket, for the purpose . . . of being armed and ready,” does not exactly conjure up images of father stuffing a six-shooter in his pajama’s pocket before heading downstairs to start the morning’s coffee, or mother concealing a handgun in her coat before stepping outside to retrieve the mail.

Instead, it brings to mind scenes such as a woman toting a small handgun in her purse as she walks through a dangerous neighborhood, or a night-shift worker carrying a handgun in his coat as he travels to and from his job site.
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Had a mildly ironic thought: If open carry activists contributed to the the open carry ban then they had a hand in this decision as well, because the court found that the fact that open carry is banned means that the State's preferred method of satisfying the right, licensed concealed carry, cannot be denied for self defense (absent prohibiting factors).

I am also observing that it is the overreach of anti-gun zealots (banning unloaded open carry, for example) that is once again their downfall. True believers are so convinced of their correctness that, in their mind, no restriction on 2A rights could possibly go too far. Until it does!
 
I'm pretty much speechless. Amazing.

The court analyzes the historical cases used by the "wrong" circuits when they relied on pre-Heller interpretations of the 2nd Amendment, and then it ends with this little gem: "And with these cases off the table, the remaining cases speak with one voice: states may not destroy the right to bear arms in public under the guise of regulating it."
Wow. So right.
 
I wonder if San Diego's new mayor will have a role in determining whether the city requests an en banc hearing.
 
It is amazing to me that Judge O'Scannlain reads Heller "the need for the right is “most acute” in the home" and concludes

thus implying that the right exists outside the home, though the need is not always as “acute.”
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Judges Davis, King, Myerscough and Stiehl read the same opinion and say, in effect "gee we think maybe this means the right doesn't exist outside of the home at all, we don't know and can't figure it out so we're going to force SCOTUS to rule on a gun case again...
 
I think I'm in love.

To reason by
analogy, it is as though San Diego County banned all political speech, but
exempted from this restriction particular people (like current or former political
figures), particular places (like private property), and particular situations (like the
week before an election). Although these exceptions might preserve small pockets
of freedom, they would do little to prevent destruction of the right to free speech as
a whole.
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An analogous comparison of bearing arms to speech. They put the second amendment on equal footing as the first.

And I really have to wonder if Alan Gura didn't ghost write this opinion with the earlier quote and....
the
question is whether it allows the typical responsible, law-abiding citizen to bear
arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding “no.”
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Resounding?

And another barb about where one would acquire arms one wasn't allowed to carry until after a confrontation already happened that I can't find again right now.

Ad here's another one...
(clarifying that in actuality “New
Jersey . . . provided no evidence at all to support its proffered justification . . .”).
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I'm starting to get the feeling the opinion is actually angry. Especially with the shots being taken at the other three circuits for not doing their job.

More love
t it is not the role of this Court [or ours] to pronounce the
Second Amendment extinct.” Id. at 636. Nor may we relegate the bearing
of arms to a “second-class right, subject to an entirely different body of rules
than the other Bill of Rights guarantees that we have held to be incorporated
into the Due Process Clause.
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I'm only at pg 42 of the decision, but I had to peak at the news to see if I was correct on where the decision was going.

I suspect that tomorrow, Richards and Baker will be reversed and remanded for a decision that is consistent with this opinion.

I also suspect that San Diego will petition for en banc. As KyJim says, that will put everything back on hold. Yet I rather doubt that an en banc decision will be any different. So far, this opinion is most excellently reasoned and written!

This was not the expected result. Those of us that were watching intently, suspected that this would go against us. For all the reasons that this is the CA9.

I am now more hopeful that the SCOTUS will take Drake v Filko, to settle this (now very) wide split within the circuits.
 
Wow - an entire 13-page section of the decision is devoted to why the decisions in the 2nd, 3rd, and 4th Circuits were wrong, with O'Scannlain essentially calling their authors out for being lazy or timid.

with Drake, 724 F.3d at 431 (noting that the court was “not inclined to address [text, history, tradition and precedent] by engaging in a round of full-blown historical analysis” and relying on the Second Circuit’s conclusion that “[h]istory and tradition do not speak with one voice” (quoting Kachalsky, 701 F.3d at 91)); Woollard, 712 F.3d at 874–76 (declining to “impart a definitive ruling” regarding the scope of the Second Amendment right), and Kachalsky, 701 F.3d at 91 (refusing to look at “highly ambiguous history and tradition to determine the meaning of the Amendment”).
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The decision is longer and more detailed than necessary to simply reach and support the conclusion, suggesting that O'Scannlain was consciously writing for future consumption by the Supreme Court.
 
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Holy cow, this was not what I expected! I'm still skimming through, but this is a good read.

Michel and Clement deserve a beer on us, as do the folks at the CRPAF who worked with them.

The Brady Campaign (who authored a brief in favor of the status quo) is crying sour mangoes over the whole thing:

Neither history or precedent supports this aberrant, split decision that concocts a dangerous right of people to carry hidden handguns in public places to people whom law enforcement has determined that they have no good cause or qualifications to do so.
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Never mind, I answered my own question. San Diego County Sheriff's Department's website says:

With regard to the recent 127-page opinion in Peruta v. San Diego, proffered by the 9th Circuit, we are in the process of reviewing and studying the decision, as well as conferring with Legal Counsel. We are unable to make any further comment at this time.
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Of course they won't comment... Until they do!

And they will comment within 14 days by filing for a petition for en banc review. I also suspect that Judge Thomas (he dissented) will call for an en banc review, whether or not San Diego does.

An en banc review is not generally granted. But here, the court has stricken an administrative policy of the county. This is on par with striking a law. Because of this, I suspect they will grant the review.

Alex Kozinski is the chief Judge of the ninth. I can almost guarantee he will be sitting on the panel. And, he is a friend of the 2A.

Over and above all of this, Judge O'Scannlain went to a great deal of pain to set out the reasoning’s for his opinion. This document is precisely meant for the Justices at the Supreme Court. Add to that, Judge O'Scannlain's opinions are taken with as much credit as those of Judge Posner, from the 7th (author of Moore v Madigan).
 
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