Peruta/Richards going en banc

[danb]

I skimmed back through the district opinion and although it didn't spell it out, it seemed to imply the right was limited to the home but if it didnt, then UOC satisfied it. Maybe a remand is in order?

That seemed to come up at argument, and seemed to be accepted by the state as a fallback.

But how would that work - send it back to remand, acknowledge that there is no more UOC, then grant the permits? Dismiss the original case and start a whole new one?

Seems unlikely the 9th would have taken en-banc only to punt like that.

I went back through the tape. Seems to me, the state conceded an awful lot and conceded the right exists outside the home. The guy arguing for Yolo (Mr 95% rural) shot himself in the foot with the 95% rural comment. So... Yolo can deny permits to everyone because of the 5% of the county that's populated?? How is that a good fit?

But I am wasting my time with logic.

Overall, going back through the tape, I was very disappointed with the energy level of the judges. I really saw only one or two judges asking the kinds of tough rhetorical/hypothetical questions I expect both sides to get at SCT.

 

[press1280]

That seemed to come up at argument, and seemed to be accepted by the state as a fallback.

But how would that work - send it back to remand, acknowledge that there is no more UOC, then grant the permits? Dismiss the original case and start a whole new one?

Seems unlikely the 9th would have taken en-banc only to punt like that.

I went back through the tape. Seems to me, the state conceded an awful lot and conceded the right exists outside the home. The guy arguing for Yolo (Mr 95% rural) shot himself in the foot with the 95% rural comment. So... Yolo can deny permits to everyone because of the 5% of the county that's populated?? How is that a good fit?

But I am wasting my time with logic.

Overall, going back through the tape, I was very disappointed with the energy level of the judges. I really saw only one or two judges asking the kinds of tough rhetorical/hypothetical questions I expect both sides to get at SCT.

Not sure how it would work, too in the weeds for me. But I think the question was asked a bunch of times if the 2a applied outside the home.no one said no. That makes me think perhaps the en banc panel read the district opinion as no 2a right outside the home. So if that is the case it may be appropriate.
as far as the en banc panel vote we don't know what their specific peeve was. Maybe they just hate the 2a, maybe they want open carry, maybe they want to remand. Who knows.

 

[esqappellate]

Thanks for the link.

Separate from the merits of the case, I have to admit that I didn't realize just how thick the stupid runs in California regarding unloaded versus loaded, and the meaning of "functional."

I've spent a lot of time in CA. It is impossible to overestimate the stupid in that mindset. For example, they impose carbon controls to address "climate change" -- knowing full well that you could reduce CO2 emissions in CA to zero and it would still have no effect on climate change. Yet, those regs have a huge impact on the cost of living in CA. They have power so they use it in pursuit of their cause du jour, just to make a statement, costs and rationality be damned. So much for the poor.

 

[Master_P]

I will listen again. But what's your point? I heard a judge citing the 9th decision in argument that an unready firearm (my words) satisfies the right. You heard it differently?

My point is that it's a bit of a stretch to think that the judge who raised the question (Callahan) is interested in building upon a bad precedent from Jackson simply because she asked a poor question about whether they could read any, "tea leaves" into the cert denial. She voted to support the 2A in the original panel and voted to deny the states motion to intervene as well. It's unlikely she'll flip-flop now.

I do recall a different judge indicating that a non-functional firearm satisfies the right, along with a disturbingly comical exchange about what makes a firearm, "functional".

 

[press1280]

I listened again and thought it wasn't quite as bad as I originally thought. There's clearly confusion among those who would seemingly not be on our side. I think this bodes well, it'll mean the case lives on in some form.

I did think an important passage of Moore should have been stated by Gura/Clement when the panel was trying to kind of push it off to the side as an outlier: Recently the Second Circuit upheld a New York state law that requires an applicant for a permit to carry a concealed handgun in public to demonstrate "proper cause" to obtain a license. Kachalsky v. County of Westchester, supra. This is the inverse of laws that forbid dangerous persons to have handguns; New York places the burden on the applicant to show that he needs a handgun to ward off dangerous persons.

And why should the applicant have the burden placed on him, even under intermediate scrutiny?

 

[Brooklyn]

California must Go..!!!

 

[Brooklyn]

I listened again and thought it wasn't quite as bad as I originally thought. There's clearly confusion among those who would seemingly not be on our side. I think this bodes well, it'll mean the case lives on in some form.

I did think an important passage of Moore should have been stated by Gura/Clement when the panel was trying to kind of push it off to the side as an outlier: Recently the Second Circuit upheld a New York state law that requires an applicant for a permit to carry a concealed handgun in public to demonstrate "proper cause" to obtain a license. Kachalsky v. County of Westchester, supra. This is the inverse of laws that forbid dangerous persons to have handguns; New York places the burden on the applicant to show that he needs a handgun to ward off dangerous persons.

And why should the applicant have the burden placed on him, even under intermediate scrutiny?

Gura made that point on rebuttal.. I am sure there was no need to quote...they all know this..

 

[Maestro Pistolero]

Some posters at Calguns are insisting that Paul Clement made a major concession at oral arguments in the Peruta the case with regard to whether the sheriff can require a showing of good cause for self defense. I don't agree.

I would love to hear Esqappellate's and other's read on this. This topic starts about here:
http://www.calguns.net/calgunforum/showthread.php?t=811282&page=110

Check out from about post #4370 forward.

 

[Gryphon]

I only listend to it once and was in a hurry, but I think Clements argument was straight forward. Self-defense is the core fundamental right embodied in the 2A. Per Heller, that core right applies inside the home, and there is no basis exists to divest that core right from the 2A which applies equally outside the home. Hence, once an applicant has articulated a reasonable need for self-defense the permit must issue. He isn't arguing against the statute which is being applied constituionally in other counties. He is arguing the uncontituional application by Gore in San Diego. Its a smaller chip at the block than those that want "good cause" struck across the board. I admit I did not read the pleadings, but this was my take away from the oral arguments.

 

[Mark75H]

Inside the home/Outside the home

How would a well regulated militia exist if their guns were always kept inside? The phrase by itself bespeaks legal outside carry without contradiction.

 

[JamesH]

I'd focus more on the right to bear arms, not just keep them.

Acknowledging any role of the militia in RKBA could be extremely damaging to our rights.

 

[esqappellate]

I only listend to it once and was in a hurry, but I think Clements argument was straight forward. Self-defense is the core fundamental right embodied in the 2A. Per Heller, that core right applies inside the home, and there is no basis exists to divest that core right from the 2A which applies equally outside the home. Hence, once an applicant has articulated a reasonable need for self-defense the permit must issue. He isn't arguing against the statute which is being applied constituionally in other counties. He is arguing the uncontituional application by Gore in San Diego. Its a smaller chip at the block than those that want "good cause" struck across the board. I admit I did not read the pleadings, but this was my take away from the oral arguments.

I agree with Gyphron's reading of Clement's argument. There is an important point that folks need to understand. Clement's strategy is to secure a win on the theory that any win is better than a loss and that any win will likely get this case to the SCT. He thus makes a narrow argument restricted to the legal issue presented on facts of *this case:* Gore's policy of making an applicant show a special need above and beyond that shared by the general population is unconstitutional. (BTW, that the MSP's policy too). If he gets that win, it will be a major achievement. You take cases as they arise. Sure, a broad win (mere assertion of the need for self defense is all that matters) would be great, but the judgment is that a narrow win is much more possible than a broad win. I agree with that judgment. This is how you win cases, one step at a time.

 

[press1280]

I'm not sure how it's possible for peruta to win by this strategy. You're trying to make something which by its nature and intention is arbitrary and capricious less so without rendering it basically worthless.

 

[esqappellate]

I'm not sure how it's possible for peruta to win by this strategy. You're trying to make something which by its nature and intention is arbitrary and capricious less so without rendering it basically worthless.

Peruta wins by this strategy because it overturns the rationale actually employed by Gore as unconstitutional. The function of the courts is to adjudicate the controversy before it, not (especially in constitutional cases) to go beyond that. They are not supposed to legislate.

 

[Maestro Pistolero]

Peruta wins by this strategy because it overturns the rationale actually employed by Gore as unconstitutional. The function of the courts is to adjudicate the controversy before it, not (especially in constitutional cases) to go beyond that. They are not supposed to legislate.

Understood. What is the significance of the concession if any, made by Clement WRT the requirement that the applicant make a showing of a self defense need?

The mere desire to live, combined with the right to defend one's life is all the need that should be necessary. It was my understanding that was the view that formed the basis of the Peruta case.

Now some respected individuals at CalGuns are calling the exchange between Clement and the court a concession which essentially destroys the case. This is the segment in which Clement said in response to a question about whether an applicant can be required to make a showing of a self defense: "Well, I suppose you could ask them to hum a few bars . . ."

It starts at about 6 minutes in here:
http://www.democraticunderground.com/1172169062

 

[Kharn]

Understood. What is the significance of the concession if any, made by Clement WRT the requirement that the applicant make a showing of a self defense need.
The mere desire to live, combined with the right to defend one's life is all the need that should be necessary. It was my understanding that that view formed the basis of the Peruta case.

Now some respected individuals at CalGuns are calling the exchange between Clement and the court a concession which essentially destroys the case. This is the segment in which Clement said in response to a question about whether an applicant can be required to make a showing of a self defense: "Well, I suppose you could ask them to hum a few bars . . ."

It starts at about 6 minutes in here:
http://www.democraticunderground.com/1172169062

All that matters is the county (and thus the state) is found to be the losing party, regardless of how small the win for us. Harris must be the one to ask for cert.

 

[Maestro Pistolero]

There is another possible concession at about 9 minutes into the video. Thoughts?

 

[esqappellate]

All that matters is the county (and thus the state) is found to be the losing party, regardless of how small the win for us. Harris must be the one to ask for cert.

This ^^ !

 

[esqappellate]

Understood. What is the significance of the concession if any, made by Clement WRT the requirement that the applicant make a showing of a self defense need?

The mere desire to live, combined with the right to defend one's life is all the need that should be necessary. It was my understanding that was the view that formed the basis of the Peruta case.

Now some respected individuals at CalGuns are calling the exchange between Clement and the court a concession which essentially destroys the case. This is the segment in which Clement said in response to a question about whether an applicant can be required to make a showing of a self defense: "Well, I suppose you could ask them to hum a few bars . . ."

It starts at about 6 minutes in here:
http://www.democraticunderground.com/1172169062

That was in response to a hypothetical and he was pretty vague. There was no real concession here because the facts of the case don't require the court to address the "hum a few bars" scenario. Stated differently, the court is not going to rule that humming a few bars can be required by the state. The most the court might to is to say that we reverse Gore's policy and remand for Gore to adopt a new policy consistent with the opinion. It is quite unlikely to say that counsel has conceded that you can require an applicant to hum a few bars on his individual need. That would be non-binding dicta if did. It was a nothing as a concession. Was it wise for him to say what he said about humming a few bars? You can argue both ways, but it is like arguing about angels and pins as it won't matter. What matters is a reversal.

 

[Brooklyn]

Understood. What is the significance of the concession if any, made by Clement WRT the requirement that the applicant make a showing of a self defense need?

The mere desire to live, combined with the right to defend one's life is all the need that should be necessary. It was my understanding that was the view that formed the basis of the Peruta case.

Now some respected individuals at CalGuns are calling the exchange between Clement and the court a concession which essentially destroys the case. This is the segment in which Clement said in response to a question about whether an applicant can be required to make a showing of a self defense: "Well, I suppose you could ask them to hum a few bars . . ."

It starts at about 6 minutes in here:
http://www.democraticunderground.com/1172169062

Good god that means a pro forma requirement.. just say 'self defens'.. the burden of proof is on the state to show unfitness....


The stuff we panic over...