Peruta v. County of San Diego (CCW Case)

[press1280]

I wouldn't read to much into McKay arguments as to the Court's disposition. They went really easy on both attorneys due to their age. I think Sean's only two year's older than me and the other attorney was fairly young as well. They also knew that Chuck Michel was supposed to argue that and Clement Jackson which was heard the same day until a last minute hiccup.

They did go easy but Judge Tallman kept bringing up the same points that O'Scannlain's opinion did (over and over BTW)-specifically that the county couldn't essentially ban both OC and CC. The other 2 panelists seemed content to simply cite Kachalsky and call it a day.

 

[press1280]

My goal in generating them wasn't to be exact (that is essentially impossible in such matters, though I do want to be as accurate as I can be here), but rather to get a feel for what we are up against as regards an en banc appeal.

The reason I produced a second set of numbers is that the 9th Circuit apparently has a special form of en banc that involves exclusion of the original panel members from the selection process, so I wanted to account for the possibility that the special form would be used.


Excellent. So we have one likely defector, at least. It would be nice if we can identify others, too. The more we have, the better our chances are, as you can see.

There's another possible defector-Judge Gould, who was on the original panel that incorporated Nordyke, the first case to rule the 2A was incorporated after Heller.

 

[esqappellate]

I really don't think its that bad. I bet is on their being no en banc hearing. There are a few things in our favor. Most importantly all the Courts want direction from the Supreme Court. That is the theme you keep hearing regardless of party. There is also the fact the Court want's to maintain its legitimacy and it would take a truly brilliant opinion to overturn the Peruta panel without looking intellectually trite in light of the massive historical analysis in that opinion.bbb

This. People need to understand that the decision on whether to go en banc on a question is quite different than facing the same question when sitting on a panel. As a rule, courts of appeals are reluctant to go en banc, some circuits hate it, like the DC Circuit. En banc is a very large investment of court time and time is a very limited commodity on a court of appeals. Moreover, judges share a sense of comity on en banc. Lots of cases involve questions of law on which judges disagree strongly but on which en banc is denied. Every judge knows that if en banc becomes common on mere disagreement on legal questions, then his decision could be next on the block. En banc has been recently expanded in the Rules to encompass intercircuit conflicts in addition to intracircuit conflicts. But my sense is that circuit judges are more tolerant of intercircuit conflicts from a decision on their circuit because the SCT can fix those and often does. Most en bancs present intracircuit conflicts and en banc is really necessary there. Every thinking judge in this 2A area is calling out for SCT guidance. The best way to get it is let this panel opinion stand. Peruta is a classic cert case. State law struck down in an opinion that expressly acknowledges inter circuit conflict on the controlling legal issue.

Edit. http://www.hastingslawjournal.org/wp-content/uploads/2012/03/Wasby_63-HLJ-747.pdf

 

[Patrick]

Celebration is definitely premature. But, the panel decision is nonetheless huge as it is the first time a panel has squarely rejected a may issue law. If it stands up to en banc, it is SCT material where the issue will ultimately be resolved.

Seeing the words flying out of California lately, I think some temperance is in order (once the well-earned jubilation is over). When we had Woollard - and were mere days from shall-issue - it was hard to stomp down the sense of impending victory. Especially when the state police, the gun groups and everybody was planning on ways to make it work. A sense of inevitability sets in.

But these things take time, and even though we all knew it then, the fall was painful. California and Maryland will be shall-issue. It's just not going to happen in 2014.

For those of us on the CalGuns forums...try to set the stage for the next actions. I got calls from lots of disaffected gun owners who felt so robed by the 4th Circuit that they were about to stalk off and give up on the whole thing. Some actually did - the energy was too much. Of course, we also made lots of new friends, and those who got tired eventually came back (we never get far). But the letdown can be draining.

Remember that this is a big win, even if the 9th were to overturn. In such a case, that puts the next steps in our hands.

 

[Patrick]

According to Dougie MD does not ban the open carry of long guns so your 2A rights are not infringed.

Would be curious if the 9th would have come to the same decision in MD with that argument.

Peruta addressed this in a roundabout way by putting Andrews v State near the top of the heap when it comes to factors. Peruta also mentions twice the following:

The court confirmed as much in 1871, holding that an act that proscribed openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances” went too far, even though the statute exempted from its prohibitions the carrying of long guns. Andrews v. State, 50 Tenn. 165, 187 (1871), cited in Heller, 554 U.S. at 608, 629.

The decision points to this logic twice. It's not dicta, but it's not a ruling, per se. It does color future decisions and actions in the 9th should the ruling hold. If the CA legislature tries to go LGOC, they will get have to square with this decision.

Peruta is great not because it says shall-issue, but because it is a framework that would bound gun control in immeasurable ways. Where the SCOTUS tried to induce calm and reason in Heller by saying "this is not the end of the world", Peruta dispenses with the niceties and just says what they mean. It is not crafted to make people feel better - it is crafted with an eye towards the current and future fights over this fundamental right and doesn't pull too many punches in the act.

I doubt we'd have seen this decision written this way if the other courts had not played games with Heller/McDonald and contrived every possible scenario they could to overrule the Supreme Court using nuance. I'd like to think that if/when we get back to SCOTUS, the justices are not going to pull the punches, as in Heller/McDonald. They should know what that gets us.

 

[kcbrown]

This. People need to understand that the decision on whether to go en banc on a question is quite different than facing the same question when sitting on a panel. As a rule, courts of appeals are reluctant to go en banc, some circuits hate it, like the DC Circuit. En banc is a very large investment of court time and time is a very limited commodity on a court of appeals.

In what way is time a limited commodity there? The time limits that the courts operate under are self-imposed. Thus, they are wholly artificial, and courts can (and do -- see Palmer) disregard them.

Moreover, judges share a sense of comity on en banc. Lots of cases involve questions of law on which judges disagree strongly but on which en banc is denied. Every judge knows that if en banc becomes common on mere disagreement on legal questions, then his decision could be next on the block.

And thus, I expect en banc to be reserved only for those questions about which the judges believe there is a great deal on the line. Like, say, whether or not the right to keep and bear arms is operative in public...


I agree that there is some chance Peruta will not go en banc. I cannot regard that chance as being very high. The stakes are too great, as is the interest in the outcome.

 

[Phil I Am]

MD has RKBA in its Constitution when it states that the Constitution of the US shall be the Supreme law of the STATE...

I see Maryland was an arrogant, POS state from the start. We citizens are so lucky because Maryland acknowledges the supremacy of US Constitution.

 

[esqappellate]

In what way is time a limited commodity there? The time limits that the courts operate under are self-imposed. Thus, they are wholly artificial, and courts can (and do -- see Palmer) disregard them.




And thus, I expect en banc to be reserved only for those questions about which the judges believe there is a great deal on the line. Like, say, whether or not the right to keep and bear arms is operative in public...


I agree that there is some chance Peruta will not go en banc. I cannot regard that chance as being very high. The stakes are too great, as is the interest in the outcome.

I teach appellate advocacy from time to time. Usually on the faculty at the time are sitting court of appeals judges. Everyone of them laments the huge reading load that is imposed on them with the ever increasing case load. Don't doubt for a minute that time is viewed as a precious commodity in the federal courts.

 

[esqappellate]

Peruta addressed this in a roundabout way by putting Andrews v State near the top of the heap when it comes to factors. Peruta also mentions twice the following:



The decision points to this logic twice. It's not dicta, but it's not a ruling, per se. It does color future decisions and actions in the 9th should the ruling hold. If the CA legislature tries to go LGOC, they will get have to square with this decision.

Peruta is great not because it says shall-issue, but because it is a framework that would bound gun control in immeasurable ways. Where the SCOTUS tried to induce calm and reason in Heller by saying "this is not the end of the world", Peruta dispenses with the niceties and just says what they mean. It is not crafted to make people feel better - it is crafted with an eye towards the current and future fights over this fundamental right and doesn't pull too many punches in the act.

I doubt we'd have seen this decision written this way if the other courts had not played games with Heller/McDonald and contrived every possible scenario they could to overrule the Supreme Court using nuance. I'd like to think that if/when we get back to SCOTUS, the justices are not going to pull the punches, as in Heller/McDonald. They should know what that gets us.

I agree, very much so on your first point Judge O'Scannlain is faithful to basic principles. The other decisions, far less so. You have got to admire his sense of judicial integrity. I do. It makes him a force in the law. As to the SCT, it all depends on who writes the majority opinion and what will muster 5 votes. Scalia has remarked that he doesn't negotiate his opinions, either you join or not. Other Justices are less constrained

 

[kcbrown]

I teach appellate advocacy from time to time. Usually on the faculty at the time are sitting court of appeals judges. Everyone of them laments the huge reading load that is imposed on them with the ever increasing case load. Don't doubt for a minute that time is viewed as a precious commodity in the federal courts.

I don't doubt you on that, but most cases that come before these courts are primarily about legal minutiae and usually involve subjects that are of no interest to the judges hearing them.

This case is very different. It's about breaking ground on a fundamental right that covers an activity that is of great interest (whether due to fear, or the empowerment the activity confers, or due to the fundamental nature of the right in question, etc). This is an opportunity for jurists that comes about maybe once in a lifetime, and the incentive to influence the outcome is very great.

Do you really think the judges on the 9th Circuit are going to avoid the opportunity to influence this just because the rest of their uninteresting case load requires large amounts of reading?

 

[Mark75H]

Unfortunately, not everyone sees 2A as the center of the universe

 

[teratos]

Unfortunately, not everyone sees 2A as the center of the universe

Wait......what?

 

[drwalther]

Unfortunately, not everyone sees 2A as the center of the universe

I didn't get it either. I ran it through Google translator, couldn't identify the meaning or language. Maybe it's a terrorist plot.

 

[Brooklyn]

I don't doubt you on that, but most cases that come before these courts are primarily about legal minutiae and usually involve subjects that are of no interest to the judges hearing them.

This case is very different. It's about breaking ground on a fundamental right that covers an activity that is of great interest (whether due to fear, or the empowerment the activity confers, or due to the fundamental nature of the right in question, etc). This is an opportunity for jurists that comes about maybe once in a lifetime, and the incentive to influence the outcome is very great.

Do you really think the judges on the 9th Circuit are going to avoid the opportunity to influence this just because the rest of their uninteresting case load requires large amounts of reading?

Unless they have something new to offer i would think they will make themselves scarce -- being immortalized as the object of scalia's fun for several centuries of 1 year law students to learn from by bad example is not the best way to cap a career -- hell even high school students may get to share the fun..

 

[Patrick]

Unless they have something new to offer i would think they will make themselves scarce -- being immortalized as the object of scalia's fun for several centuries of 1 year law students to learn from by bad example is not the best way to cap a career -- hell even high school students may get to share the fun..

You assume we have several centuries left...

Sorry. Couldn't resist. Rome didn't last that long, and they didn't have to deal with cable TV pundits.

 

[yellowfin]

Unfortunately, not everyone sees 2A as the center of the universe

Anti gun judges, legislators, and politically influential contributors sure seem to put it pretty high on their list of things to hate at all costs and every opportunity. Controlling others' money, property, business, and lifestyle IS the center of their universe. The average individual's right to be effectively armed is the very kryptonite of statism-- it is the insistence that individuals own their own lives, property, and lifestyle in a way that is enforceable against intrusion and coercion. Judges, lawyers, and others in the political-legal system do not like being told that they are not God over other people, and a pistol on the hip and an AR in the hand of an average citizen tells them that they most certainly cannot do as they please to said citizenry.

It's also why they attack traditional religion and morality at every opportunity, as that also tells them that they're not God.

 

[Kharn]

Anti gun judges, legislators, and politically influential contributors sure seem to put it pretty high on their list of things to hate at all costs and every opportunity. Controlling others' money, property, business, and lifestyle IS the center of their universe. The average individual's right to be effectively armed is the very kryptonite of statism-- it is the insistence that individuals own their own lives, property, and lifestyle in a way that is enforceable against intrusion and coercion. Judges, lawyers, and others in the political-legal system do not like being told that they are not God over other people, and a pistol on the hip and an AR in the hand of an average citizen tells them that they most certainly cannot do as they please to said citizenry.

It's also why they attack traditional religion and morality at every opportunity, as that also tells them that they're not God.

But are there 15 judges in the 9th Circuit that feel that way, or will sanity prevail?

 

[yellowfin]

I doubt there is a federal circuit or any significant legal or political body that isn't at least 50% egomaniacal control freaks.

 

[tomh]

You assume we have several centuries left...

Sorry. Couldn't resist. Rome didn't last that long, and they didn't have to deal with cable TV pundits.

If you're going to apply that logic, then really - we're overdue. 200 years give or take seems to be the limit for most forms of government.

 

[Patrick]

If you're going to apply that logic, then really - we're overdue. 200 years give or take seems to be the limit for most forms of government.

But I read somewhere that ours "evolves", or something.

I think our length of historical record was based on some principles that may have been evolved away over time. The next few decades will tell us whether they come back, or whether the US ends up becoming something quite severely different from where we are today.

Thread jack alert. Sorry.