Peruta v. San Diego

[KyJim]

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.

By rule, he can sit in all en banc rehearings. Ninth Circuit Court Rule 35-3 states:

The en banc court, for each case or group of related cases taken en banc, shall consist of the Chief Judge of this circuit and 10 additional judges to be drawn by lot from the active judges of the Court. In the absence of the Chief Judge, an 11th active judge shall be drawn by lot, and the most senior active judge on the panel shall preside.

 

[SHR970]

This ruling coming from the 9th Circus!

I'm still doing the Happy Dance. If this stands how many other "California Gun Control Schemes" (paraphrased from dissenting opinion) will go down in smoke with it? Bullet Buttons, mag capacity limits, Micro Stamping???

I see this as the beginning of a reversal of 40 years of poor legislation. And the ramifications are not limited to the 9th Circus.

Considering the wide disparity of rulings amongst the Circuit Courts on the specific matter, I have a hard time seeing how the SCOTUS would not review an undertake an appeal at his point. The question is how would that appeal go? Considering the opinions offered in this ruling, I have a lot of hope.

 

[Luger_carbine]

how many other "California Gun Control Schemes" (paraphrased from dissenting opinion) will go down in smoke with it? Bullet Buttons, mag capacity limits, Micro Stamping???

I see just the opposite. If the gun control politicians in Colorado are any indication, then we can expect gun control politicians in California to continue to do everything they can to limit Second Amendment rights in any and every way they can.

When one avenue is closed, another avenue is pursued with even greater intensity.

So actually I would expect their efforts to be directed toward things like Bullet Buttons, mag capacity limits, Micro Stamping, more taxes and paperwork / bureaucracy / "regulation" on guns and ammunition. More fees and paperwork for purchasing and owning a firearm.

Illinois has the FOID, Cook County has taxes on firearms and ammunition purchases, New Jersey has its permitting scheme. There is Nassau County / Long Island's $340 residential handgun permit. Until those things get overturned, I would expect them to be used more heavily wherever anti-gunners hold power.

 

[gc70]

When one avenue is closed, another avenue is pursued with even greater intensity.

Over-reactions by gun control politicians tend to create a target-rich environment, as amply demonstrated by Chicago's trials and tribulations in trying to suppress the Second Amendment.

 

[Brian Pfleuger]

I see just the opposite. If the gun control politicians in Colorado are any indication, then we can expect gun control politicians in California to continue to do everything they can to limit Second Amendment rights in any and every way they can.

When one avenue is closed, another avenue is pursued with even greater intensity.

I think you underestimate the importance of his ruling, when it would actually be hard to OVERestimate the importance.

This ruling explicitly places "bearing arms" under the protective mantle of core constitutional right and (at the very least implicitly) states that Strict Scrutiny is the proper tool for evaluating laws which abridge that right.

Intermediate scrutiny is not appropriate, however,
for cases involving the destruction of a right at the core of the Second Amendment.

To be clear, we are not holding that the Second Amendment requires the
states to permit concealed carry. But the Second Amendment does require that the
states permit some form of carry for self-defense outside the home.

 

[Frank Ettin]

I'm still reading through the opinion, but it's a fine piece of work -- detailed and well organized. Judge O'Scannlain did an excellent historical overveiw.

Of course gun control advocates won't give up. Why would any of us expect them to? We didn't give up when we suffered setbacks. This tension between gun control and gun rights will continue indefinitely.

But now with this ruling together with an number of others like Judge Posner's opinion in Moore we're developing a strong pro-Second Amendment judicial literature. The reasoning and reviews of past decisions, past commentary and the historical context of the Second Amendment are helping to build the foundation for future arguments in future cases.

 

[Luger_carbine]

I agree that stating that self defense or "bearing arms" must be evaluated with strict scrutiny is a huge.

I just don't see how it affects those courts that have been evaluating 2A cases on a rational basis and then have been saying that they used "scrutiny"

The disconnect with those judges isn't that they don't know what strict scrutiny or intermediate scrutiny is, or what Jensen referred to as "near strict" scrutiny. Those judges are deciding cases on a rational basis and declaring that it passes muster for scrutiny.

Just looking at what gets regulated and to what extent, I think between Peruta and Moore we can say that government can deny OC or CC but they can't deny both.

I think the same principle applies to handguns and long arms. Judges Davis and King mentioned that Woollard could walk down the street with a shotgun if he chose to do so..

We may be entering a realm of thinking that says government only has to allow citizens some means of defending themselves, either CC or OC, but once that is provided for in some form, then other areas can be regulated. So theoretically a state could regulate the heck out of rifles and shotguns if they'd already provided for the right of self defense in the area of handguns.

Judges may not apply strict scrutiny to things like Micro-Stamping, mag-caps and bullet buttons because they can say right off the bat that these issues are not self defense / RTKBA issues since the state has already met the requirements to provide citizens with some means of bearing arms. They can say that the right to bear arms has already been met with the state's CC or OC laws therefor Micro-Stamping is not a "right to bear arms" issue at all.

I certainly hope I'm wrong, but the two issues that I see Peruta affecting most strongly are may issue and fees like in Kwong, Micro-Stamping and mag caps - not so much.

That reminds me the deadline date to file for cert in Kwong was 2 weeks ago right?

 

[Brian Pfleuger]

I certainly hope I'm wrong, but the two issues that I see Peruta affecting most strongly are may issue and fees like in Kwong, Micro-Stamping and mag caps - not so much.

Well, that's true but that's a lot like saying that the antibiotic I got for my cold isn't going to do anything for the ant infestation at my house. That's because they are unrelated.

One of the more frustrating parts of these cases for me is how narrowly the questions are asked and answered. I wish it weren't so but it is. The courts only address the exact, specific question and generally nothing else.

This one actually goes farther than most, at least as many as I've read, in that it mentions other questions and concepts but says things like "We're not here to answer that..." Even so, it would seem that the mere mention of the unanswered question in the context would indicate that they believe it would require the same sort of scrutiny.

We need specific cases to address those other questions. Yeah, it sucks, but it is what it is.

The 7 round loaded mag limit portion of the NY (un)SAFE Act has already been struck down. Assuming that decision holds, the next question would be how the 10 round limit is any better, since it is also arbitrary and is not the "standard" magazine for most guns. SCOTUS has already declared a "common use" standard for bans. It can not be logically claimed that standard capacity magazines are not "common use" when the only reason lower capacity mags even exist (in many cases) is to satisfy state requirements against the standard mags. Ultimately, I think it would/should be argued that the mag limit is actually a ban on the firearms themselves, since they can not be imported to the state with their "standard" magazine so any gun for which he company doesn't make a specific NY (or CA) model is banned, which should fail the common use ban test.

 

[Frank Ettin]

...Judges may not apply strict scrutiny to things like Micro-Stamping,...

It is in fact likely that intermediate scrutiny will be applied to some regulation of the rights described by the Second Amendment. In general, particularly with regard to First Amendment cases, strict scrutiny has only been applied to "core" rights. So, for example, in First Amendment cases strict scrutiny has generally been applied to purported regulation of political speech, and intermediate scrutiny has generally been applied to purported regulation of commercial speech.

There can be no doubt that some regulation of the rights described by the Second Amendment will be sustained by the courts. Second Amendment jurisprudence is still in its infancy, so the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.

 

[Jim March]

We may be entering a realm of thinking that says government only has to allow citizens some means of defending themselves, either CC or OC, but once that is provided for in some form, then other areas can be regulated. So theoretically a state could regulate the heck out of rifles and shotguns if they'd already provided for the right of self defense in the area of handguns.

Handguns are useful for defense against random criminals. But the original "defense against tyranny" meaning of the 2nd hasn't been overturned, and for that matter neither has the "militia weapon" standard found in State v. Aymette and cited in Miller.

According to Akhil Reed Amar, the 14th Amendment added a "personal civil right to self defense" element to the 2nd but did NOT destroy the original "political right of milita service" meaning of the 2nd. So a right to handguns can exist side-by-side with a right to modern type rifles (semi-auto or otherwise).

See also Amar's 2000 book "The Bill Of Rights" for the whole story. That book was one of the main triggers behind the prepwork for what became the Heller case.

 

[lake393]

For anyone who doesn't have time to trudge through all 127 pages, read this article, which came out today: Ninth Circuit Peruta ruling reveals faults with other circuit opinions

It analyses yesterday's 9th Circuit CoA victory in Peruta v. San Diego, in which Judge O’Scannlain's ruling and 127-pg majority opinion contradicted and flat-out shamed three previous CoA rulings (Drake in CoA 2, Wollard in CoA 3, & Kachalsky in CoA 4), and really thew down the gauntlet for the SCOTUS to take-up Drake v. Jerejian.

Good news methinks.

EDIT: Correction from Al Norris:
Kachalsky was CA2; Woollard was CA4; and Drake is CA3

 

[Frank Ettin]

...But the original "defense against tyranny" meaning of the 2nd hasn't been overturned,...

However, Judge O'Scannlain provides an extensive historical review supporting a "right to self defense" reading. Indeed, he points out that the "defense against tyranny" view does not support finding a right to routinely carry a gun outside the home (Peruta, pg 22):

...Since one needn’t exactly tote a pistol on his way to the grocery store in order to keep his government in check, it is no surprise (and, thus, of limited significance for purposes of our analysis) when these courts suggest that the right is mostly confined to the home....

 

[Al Norris]

Just a clarification, lake393: Kachalsky was CA2; Woollard was CA4; and Drake is CA3.

 

[Tom Servo]

But now with this ruling together with an number of others like Judge Posner's opinion in Moore we're developing a strong pro-Second Amendment judicial literature.

It still amazes me. It wasn't too long ago that Emerson was the only real arrow in the quiver for us.

The disconnect with those judges isn't that they don't know what strict scrutiny or intermediate scrutiny is, or what Jensen referred to as "near strict" scrutiny. Those judges are deciding cases on a rational basis and declaring that it passes muster for scrutiny.

I still think defining the level of scrutiny is going to be a sticking point. The 9th CA doesn't seem to take issue with the idea of applying intermediate scrutiny; they just think it hasn't been properly invoked:

This is not an appropriate application of intermediate scrutiny in at least two respects. First, the analysis in the Second, Third, and Fourth Circuit decisions is near-identical to the freestanding “interest-balancing inquiry” that Justice Breyer proposed—and that the majority explicitly rejected—in Heller. (...) Our second disagreement with our sister circuits’ application of intermediate scrutinyrelates to the high degree of deference they afforded the state legislatures ’assessments of the fit between the challenged regulations and the asserted government interest they served.

 

[lake393]

Al Norris, thanks for the correction Apologies for getting those switched up.

 

[Al Norris]

With as many cases as we are following, mistakes are quite easy to make. Lord knows I'm often at fault!

 

[JimDandy]

Are you sure Tom? Every time they mentioned Scrutiny the did the same dance the Supreme Court did in Heller. i.e. We didn't use scrutiny because it wouldn't pass any scrutiny so scrutiny doesn't matter.

Because our analysis paralleled the analysis in Heller itself, we did not
apply a particular standard of heightened scrutiny.

Then we see them quote

“The very enumeration of the
right takes out of the hands of government—even the Third Branch of
Government—the power to decide on a case-by-case basis whether the right is
really worth insisting upon.”

And here;

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.

It sounds like they're pushing to all but get rid of intermediate scrutiny for the core right. Or is that something else?

And for those wondering about what effect this would have on other regulations as far as carry laws, gun bans, feature bans and so on:

Nor should anything in this opinion be taken to cast doubt on the validity of
measures designed to make the carrying of firearms for self-defense as safe
as possible, both to the carrier and the community.

Sound like cutting off any appeal to revoke training/class requirements, fingerprinting etc?

 

[gc70]

I still think defining the level of scrutiny is going to be a sticking point. The 9th CA doesn't seem to take issue with the idea of applying intermediate scrutiny; they just think it hasn't been properly invoked:

I don't think the 9CA has any issue with applying intermediate scrutiny, as expressed in O'Scannlain's 2011 opinion in Nordyke:

(p5639) Conversely, applying strict scrutiny to every gun-control regulation would be inconsistent with Heller’s reasoning.

(p5640) We are satisfied that a substantial burden framework will prove to be far more judicially manageable than an approach that would reflexively apply strict scrutiny to all gun-control laws.

The Peruta decision is based on the Second Amendment right containing two components: to "keep" and to "bear" arms. With bearing arms defined as occurring outside the home, there is no need to determine a level of scrutiny or a degree of burden because the right is totally banned.

The 2CA approach in Drake starts with the premise that bearing arms is an ancillary function of the Second Amendment that can potentially be denied with appropriate justification.

Appellants contend also that “[t]ext, history, tradition and precedent all confirm that [individuals] enjoy a right to publicly carry arms for their defense.” Appellants’ Brief 12 (emphasis added). At this time, we are not inclined to address this contention by engaging in a round of full-blown historical analysis, given other courts’ extensive consideration of the history and tradition of the Second Amendment. ...

For these reasons, we decline to definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home, the “core” of the right as identified by Heller. We do, however, recognize that the Second Amendment’s individual right to bear arms may have some application beyond the home. ...

Assuming that the Second Amendment individual right to bear arms does apply beyond the home, we next consider whether or not the requirement that applicants demonstrate a “justifiable need” to publicly carry a handgun for self-defense burdens conduct within the scope of that Second Amendment guarantee.

 

[Aguila Blanca]

This one actually goes farther than most, at least as many as I've read, in that it mentions other questions and concepts but says things like "We're not here to answer that..." Even so, it would seem that the mere mention of the unanswered question in the context would indicate that they believe it would require the same sort of scrutiny.

That's essentially what Justice Scalia wrote in the Heller decision, with his comment about "other, presumptively lawful regulations." He was basically saying, "We're answering the question that was asked, and nothing more. We know there are other laws out there, but those haven't been challenged -- yet -- so we're not going to talk about them today."

So today is Heller's tomorrow, and now we're talking about whether or not those other "presumptively" lawful regulations are, in fact, lawful.

 

[wnycollector]

The 7 round loaded mag limit portion of the NY (un)SAFE Act has already been struck down. Assuming that decision holds, the next question would be how the 10 round limit is any better, since it is also arbitrary and is not the "standard" magazine for most guns. SCOTUS has already declared a "common use" standard for bans. It can not be logically claimed that standard capacity magazines are not "common use" when the only reason lower capacity mags even exist (in many cases) is to satisfy state requirements against the standard mags. Ultimately, I think it would/should be argued that the mag limit is actually a ban on the firearms themselves, since they can not be imported to the state with their "standard" magazine so any gun for which he company doesn't make a specific NY (or CA) model is banned, which should fail the common use ban test.

Maybe this decision smacked some sense into the 2nd and they apply it to NYSRPA's appeal