Peruta v. San Diego

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"I'm discounting your opinion because (1) I've concluded that it's wrong on its merits as I previously, and Al Norris recently, described; and (2) it conflicts with the opinions of persons I know to be eminent lawyers and legal scholars."

More meaningless verbiage that tells us nothing of your analysis. As I have demonstrated, the only thing on which we appear to disagree is whether the decision in Moore established a split between the 7th and the 2, 3, and 4th Circuits. 2,3, and 4 say that the right exists outside the home but is subject to regulation based on "good cause" in the public interest. Moore says that the right exists outside the home and cannot be banned, never addressing whether a may issue or shall issue scheme is mandated by the Second Amendment. Nothing in the decision compelled Illinois to adopt a "shall issue" scheme. Therefor there is no direct conflict, just a philosophical difference in the manner in which the issue is analyzed. That to date has not been enough to compel the Supreme court to act. Hardly surprising.

Peruta creates a real split because it says that the right exists outside the home AND is not subject to a regulation based on "good cause." That is in fact a direct attack on the holdings in Kachalsky, Drake, and Woolard, something Moore is not.

The linked article by Voloch says only that he is reviewing the decision, saying nothing about a "split." The second article says there is a split in a single sentence with no context and no analysis. and the third, but ___ says: "Only one other federal appeals court — the Seventh Circuit — has ruled that the right to have a gun for personal use continues when one leaves home, but its ruling on the point was notably more narrow than the new Ninth Circuit decision. Other appeals courts have refused to assure protection for carrying a gun beyond the home — a split that might enhance the prospects that the Supreme Court would ultimately settle the question." All Frank says, in this entire thread, is "I agree with those guys because they are famous and you aren't." I read the entire thread to be sure. So please, Frank, tell me where you demonstrated the flaw in my discussion, as I can find no evidence of it.
 
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62coltnavy said:
...the only thing on which we appear to disagree is whether the decision in Moore established a split between the 7th and the 2, 3, and 4th Circuits...
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I guess we'll have to see. If you're correct, and if the Ninth Circuit declines to hear Peruta en banc we just might see a lot of pressure being put on San Diego not to take it up. Peruta in the Supreme Court could be seen a posing a real risk to the remaining "may issue" States.

If Peruta goes up we'll have the clearest sort of split. And Judge O'Scannlain's opinion drew so heavily on Heller that I suspect the prospect getting to address the case will be enticing to at least four of the Heller five.
 
If San Diego does not take Peruta up on cert., there is a good chance that the court will take Drake, which is on calendar for tomorrow, because as I've said repeatedly but no one seems to be listening, Peruta creates a split that merits Supreme court review--and the Court doesn't need to take Peruta up to address it. All I have been saying about Moore is that it does not create a split that needs to be resolved, an opinion supported by the inaction of the Supreme Court to date. And as I've said in other contexts, I believe the Supreme Curt has been waiting for the Ninth to issue an opinion before taking another case--which makes sense in that the Ninth is the only circuit besides 2, 3, and 4 that has a state with a "may issue" law. With Peruta on the books (assuming no reversal on en banc), the time has arrived.
 
62coltnavy said:
As I have demonstrated, the only thing on which we appear to disagree is whether the decision in Moore established a split between the 7th and the 2, 3, and 4th Circuits. 2,3, and 4 say that the right exists outside the home but is subject to regulation based on "good cause" in the public interest. Moore says that the right exists outside the home and cannot be banned, never addressing whether a may issue or shall issue scheme is mandated by the Second Amendment. Nothing in the decision compelled Illinois to adopt a "shall issue" scheme. Therefor there is no direct conflict, just a philosophical difference in the manner in which the issue is analyzed.
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Your analysis of a circuit split focuses on the specifics of concealed carry licensing. Others focus on a circuit split with regard to the scope of the Second Amendment. The 2CA, 3CA, and 4CA have largely placed the 2A right to self-defense under house arrest, while the 7CA and 9CA recognize that "to bear" in the 2A extends the right beyond the home.

Until the Supreme Court takes up a case, we will not know whether the Court prefers to address the bundle of related issues within a broader or narrower context.
 
By the way, just a nit. Lane, BATF, and McCraw are up today in the Friday conference, not Drake. We will probably get an order on those cases on Monday. I have my fingers crossed but I am not betting the rent money on it. The Opp in Drake is not due until March 14 which means the case will probably not go to Friday conference until April 18. A petition for rehearing in Peruta is due Feb. 27, unless extended, which the 9th circuit will do for the asking, typically. A petition for rehearing will act to stay the mandate, so there is nothing much "final" yet about Peruta.

On the development of a split, there is no doubt that Peruta really does establish a split between the circuits on the constitutionality of "good cause" laws, a category that includes NY, NJ and MD, as well as SD's construction of the California good cause law. And it is quite correct that Moore did not involve a "good cause" law, as the Illinois statute was almost a complete ban. So Peruta goes further than Moore. It is also quite correct the both Moore and Peruta recognize that the core right is "self defense" -- not merely self defense in the home. On that legal point there is indeed a 3/2 split. But I have been doing SCT stuff for a long time (almost 40 years). The Court takes cases when it wants to, split or not. Not all splits are created equally. I had a case in which there was a 3/4 split that lasted 15 years before the court took cert on that very issue. What makes Peruta uniquely cert-worthy is that the 9th Circuit struck down a state (municipal) ordinance as unconstitutional, just as the DC. Circuit in Heller (then Parker), struck down the D.C. statute. Moore was equally cert-worthy, but Illinois declined to seek cert. Peruta has now joined Moore in this respect. It was easy to deny cert in the NY and MD cases, as the status quo was maintained. Drake may meet a similar fate for the same reason. The big hurdle now is for Peruta to get past en banc.
 
In my mind the worst outcome for those of us in Ca. at the moment is that San Diego does not appeal. The 9th does not take this up en banc and no cert. requested of the SCOTUS. This based off of the back and forth of the posters who obstensibly are members of the bar.

This scenario begs the question: Assuming that no en banc or cert. how does this affect the "May Issue" scheme in Ca. as a whole? As I live in a county which is as or more onerous in their "Good Cause" requirement than San Diego. would we (those of us in restrictive counties) have to mount a county by county court assault on their "Good Cause" requirements until we could compel the state legislature to codify it?

All the while we are left with the SCOTUS waiting to decide when to take up which case that would finally put one important question to rest: Do we have r right to bear arms for Self Defense out side of the home.
 
SHR970 said:
In my mind the worst outcome for those of us in Ca. at the moment is that San Diego does not appeal. The 9th does not take this up en banc and no cert. requested of the SCOTUS. ...
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I don't think so.

SHR970 said:
...This scenario begs the question: Assuming that no en banc or cert. how does this affect the "May Issue" scheme in Ca. as a whole...
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In that case we have a final Ninth Circuit decision that a personal desire for self defense would need to be considered good cause. Basically Persuta removes the discretion to decide what is or is not good cause. That takes California pretty much to "shall issue."

We'd still have a something of a hodgepodge of county-by-county requirements related to training, insurance, psychological evaluations, etc., to deal with. Some of these will be vulnerable to attack as exceeding requirements permissible under state law as well as on constitutional grounds.

But discretionary good cause has been taken off the table. Furthermore, Judge O'Scannlain's decision is clear and unequivocal that the rights described in the Second Amendment includes a right for ordinary people to bear arms outside the home for personal defense.
 
What makes Peruta uniquely cert-worthy is that the 9th Circuit struck down a state (municipal) ordinance as unconstitutional, just as the DC. Circuit in Heller (then Parker), struck down the D.C. statute.
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My understanding is/was that the court struck the policy of the San Diego Sheriff to interpret self defense as insufficient cause. I didn't realize they struck the statute. What am I missing?
 
correct, the court didn't strike down the California statute, which authorizes the issuance of a permit for "good cause." What they did strike down was SD's official policy that good cause did NOT include self defense. Other Cal. counties consider good cause to include self defense. So it was SD's official construction of good cause that was at issue. Hence my reference to "municipal" in the earlier post. The point is that the court struck down a municipal ordinance. While certainly less weighty than a state statute, ala Moore, it will suffice for purposes of cert.

BTW, the best of all worlds for Calif. residents is for SD to forgo en banc and forgo cert. Peruta then becomes binding precedent as to the 9th Circuit, including all of California. The California counties will have to come into line, or face suits forcing them to come into line. Not being stupid, they will comply.
 
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Judge O'Scannlain's decision is clear and unequivocal that the rights described in the Second Amendment includes a right for ordinary people to bear arms outside the home for personal defense.
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However, the permitting system in Ca. as you may be aware is for FIREARMS. CCW w/o a permit for a firearm is a misdemeanor the first time around under current law. Couldn't O'Scannlain's decision also be applied to other arms / weapons such as knives, swords etc. which are currently either a misdemeanor or a felony to carry concealed and to which at face value there is not permitting process in place? Ref. CPC 26150-26225. for CCW and various CPC's in the 17500-26405 range.

Further, even under lesser levels of scrutiny, doesn't this open the door pretty wide to have various "prohibited weapons" statutes stricken as historically (O'Scannlain seriously went there in deference to history) there were generally no prohibitions on the types of weapons one could carry until fairly contemporary times?
 
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I don't know enough about california law on this. Does Cal. law permit open carry of such weapons? If so, then the ban on concealed carry is probably constitutional. But on you larger point, yes, "arms" include other things other than just firearms.
 
Some yes with extremely narrow limits (like knife worn at the waist in a sheath) others not at all. Many weapons are expressly prohibited in the state. CPC 19910-22910 Then we have the unrecognizable, wallet, cane gun prohibitions in addition to a host of assault weapon laws.

Edit to add: For a very narrow set, they are not allowed for general public use but you can get permitted as a Security Guard and then you are limited to carry on the job and portal to portal.
 
SHR970 said:
...Further, even under lesser levels of scrutiny, doesn't this open the door pretty wide to have various "prohibited weapons" statutes stricken as historically (O'Scannlain seriously went there in deference to history) there were generally no prohibitions on the types of weapons one could carry until fairly contemporary times?
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None of that was in front of the court in Peruta, and none of that would be addressed if Peruta goes to the Supreme Court.
 
None of that was in front of the court in Peruta, and none of that would be addressed if Peruta goes to the Supreme Court.
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I understand that; hence my question leading with "Doesn't that open the door". I would think that if this decision is uncontested based on what the contingent of lawyers here are saying; as a standing precedent discussing arms, we would then be able to use it to attack and overturn a host of laws and / or force substantial modification. Even though this case is about permitting of guns, the Majority decision clearly states ARMS repeatedly. Not all arms are guns so as standing precedent doesn't this wording open the door wide?
 
We'd still have a something of a hodgepodge of county-by-county requirements related to training, insurance, psychological evaluations, etc., to deal with. Some of these will be vulnerable to attack as exceeding requirements permissible under state law as well as on constitutional grounds.

But discretionary good cause has been taken off the table. Furthermore, Judge O'Scannlain's decision is clear and unequivocal that the rights described in the Second Amendment includes a right for ordinary people to bear arms outside the home for personal defense.
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I have to make this clear: the counties are doing all kinds of other crap such as illegal requirements, delays WAY past 90 days and more all because the "may issue" thing enables it. Basically, even if everything else they do is black-letter illegal (and some counties come damned close!) fighting it won't help because you'll "win" on each and every other point but then "whoops, you don't have good cause" and you're screwed while they stick their tongues out at you.

Follow?

With "may issue/good cause" off the table we can then fight back on all the other crap - the citizenship requirement in Tehama County that has been flatly illegal since 1972, the various games where you get buck-passed from sheriff to chief and back and forth in various ways, the bond requirement in Alameda County, all that junk.

We don't have to take it anymore.
 
SHR970 said:
we would then be able to use it to attack and overturn a host of laws and / or force substantial modification.
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I think that's skipping a step. First you have to get something so prohibited classified as an "arm" THEN you can use Peruta (in the 9th as it's currently ruled) to get or force some sort of method to carry it.

There are two "tests" that I know of. The older one from United States v. Miller 307 US 174 said:

MR. JUSTICE McREYNOLDS said:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
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In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.
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Then in Heller the Supreme Court, without actually repudiating Miller (as far as I can tell) fine-tuned the "militia purpose" to:
Justice Scalia said:
We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes,
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At least one scholar/lawyer has suggested that should include some version of "or would be so, if not banned."

So if you want Peruta to extend to a KA-Bar, or an M9, you'd probably first have to establish the military still uses them- apparently more problematic and disputed than you would think- and that without the ban they would be in common use for a lawful purpose - Probably much easier than one would think because of the same disputation and the source of support for them- THEN convince the court that the ban is the only reason they're not in common use and the protection should be extended to those items not commonly used only because of a ban that would be unconstitutional to apply today if they were in common use in a cause/effect chicken/egg type of game.

The people who do the legal thing for a living can correct anything I got wrong, but having watched this go on for a bit, it's all a step-by-step meticulous process where almost nothing is a gimme. They'll deny a weapon is "arms" and so not protected by the 2A if that gets it off the streets.
 
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In a nation where civilian arms have always followed or mirrored military arms, there should be little distinction between common small arms in civilian vs military bearable small arms.
 
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