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San Diego in Peruta: OK With AG Intervention, Not Moot

Yesterday, San Diego County filed a response with the 9th Circuit Court of appeals to the Motions to Intervene by the California Attorney General, and whether the case was moot. They are fine with the intervention of the State AG, and argue the case is not moot, since they are still sitting on applications awaiting a final decision. You may recall a few weeks ago there was some argument over whether or not Peruta was moot, in which case Richards v. Prieto would be the case to go forward, so this should settle that issue in favor of Peruta not being moot. At this point, I’m not even sure what outcome to hope for anymore, because in one sense, I’d like to give the Supreme Court another bite at the apple, except I’m not sure they’ll take it, so part of me feels we’re better off with this not going en banc.

25 Responses to “San Diego in Peruta: OK With AG Intervention, Not Moot”

  1. Jim Jones says:

    After reading about how Palmer has been stuck at the circuit courts level since 2009 (oral arguments heard twice, transferred to NYC, Gura just file a second motion to force the court to decide the case), I think that the Supremes are going to punt every single carry case until that one comes up. It is a much cleaner and narrower decision to make. In that case, it is a straight ban on open carry and CCW. This case would enable the Supremes to say that the 2A extends to the right to bear arms outside of the home, whether a state choose CCW or Open Carry. That way, the Supremes can make that ruling without getting involved in the merits of may versus shall issue. They are stickler for making narrow decisions, and the Palmer case would enable them to avoid a thorny political issue.

    • Sebastian says:

      I’ve pondered whether they might be holding that one back too, but at the end of the day, I don’t feel like I have enough information, short of just reading the tea leaves, to really write about it.

    • Jeff says:

      Palmer is still stuck at the *District* court level, not even the circuit.

  2. Jack says:

    This is definitly something to watch, as Cali is one of the two the big population centers of May Issue.

    And if Peruta stands then there’s an even bigger Circuit Split on May/Shall Issue.

    The Shall Issue change was one of the major factors towards Gun Culture 2.0 and the more the May Issue places are isolated the better our position is.

    If the 9th stays this way that’s a major notch going in our direction.

    • Matthew Carberry says:

      If California and Hawaii go, only 11-ish percent of the US population, 30-something million people, will live in the remaining seven May-Issue (in actual practice) states and DC, with only about two thirds of those people actually residing in the “no issue” or “highly restrictive” may-issue counties and cities in those states.

      Greater NYC is the biggest effective “no issue” population center, NJ the only entire state, and then DC. The rest of the “may-issue” states all have counties which are “okay” to quite good.

      Losing California will reveal just how regional and parochial anti-carry sentiment is, particularly when the individual “may-issue” states are illustrated on a county-by-county basis.

  3. I would like to say that I am surprised that the Peruta panel ordered Sheriff Gore to even respond to Gura’s mootness claim but I suspect the 2 judges on the panel were grasping at straws to preserve their decision.

    Kool-Aid drinkers notwithstanding, the Peruta decision, either directly or through a case in which the Peruta decision was the deciding factor, will be overturned. Most likely via an en banc rehearing.

    Think about it. Nordyke v. King was reheard en banc twice. And that was a case about having guns present at gun shows. Objectively, what is different about the Peruta case which makes it unlikely to be reheard en banc?

    Charles Nichols – California Right To Carry – http://CaliforniaRightToCarry.org

    • Glen says:

      Nordyke was a factual dispute that should have never have been adjudicated by an appeals court. Unfortunately, the original panel was dead-set on writing a “landmark” opinion.

      And they finally got their chance with Peruta. Which is one of the reasons why it’s unlikely to be overturned en banc. The other reason is that subordinate federal judges’ (including those on the Ninth Circuit) need to have the Supreme Court do its job is often greater than their desire to effect preferred policy outcomes.

  4. I think you meant to say that Peruta is likely to be overturned en banc. US V. Chovan (en banc petition denied) is the prior panel decision which set the framework for evaluating Second Amendment cases. The Peruta panel failed to follow Chovan thereby creating an intra-circuit split. Instead, Peruta applied the vacated test O’Scainnlain invented from one of the vacated Nordyke decisions.

    I don’t know what Judge O’Scainnlain was thinking. Perhaps he thought that Chovan would be overturned en banc and vacated making O’Scannlain’s vacated test the new prior three judge panel precedent all subsequent 9th Circuit three judge panels are bound to follow.

    Whatever he may have been thinking that didn’t happen and Peruta cannot survive the framework established by Chovan. Peruta, no matter which way you slice it, involves a state law and is therefore subject to the limits of incorporation which was the Heller decision. This means no concealed carry. There is no precedent which supports finding that the state can ban the fundamental right (Open Carry) and substitute something which is not a right (Concealed Carry).

  5. Scott says:

    The SC has to take the bite of the apple, no matter which way Peruta goes (assuming that Peruta gets appealed which is almost certain).

    There is already a circuit split and my guess is the SC punted on Drake because they are waiting for Peruta. The court wants all the biggies (and the 9th is a biggie) to be on record before it bites.

    I just hope when they get to it that it goes our way.

    • There was no split until the Peruta decision. The Federal and state courts have unanimously upheld Heller’s prohibitions on concealed carry. Even the 7th Circuit in Moore said that Illinois could require Open Carry as per the Heller decision.

      Peruta will lose en banc and cert will be denied just as it has been in every other case which sought to carry concealed handguns in public.

      Charles Nichols – President of California Right To Carry
      http://CaliforniaRightToCarry.org

      “[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 – Supreme Court (2008) at 2809.

      “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” District of Columbia v. Heller, 128 S. Ct. 2783 – Supreme Court (2008) at 2816.

      • Scott says:

        Well, and I’ve been told I’m negative. Now I know what the meaning of the word is.

        In any event – from Gura’s petition in Drake –

        The Second,
        Fourth, Fifth and Seventh Circuits, and the supreme
        courts of Illinois, Idaho, Oregon and Georgia have
        held or assumed that the Second Amendment encompasses
        the right to carry handguns outside the home
        for self-defense. But along with the highest courts of
        Massachusetts, Maryland, and the District of Columbia,
        which have refused to recognize this right, a
        divided Third Circuit panel below held that carrying
        handguns outside the home for self-defense falls
        outside the scope of the Second Amendment’s protection.
        It thus upheld New Jersey’s “justifiable need”
        prerequisite for carrying defensive handguns.

        If Gura is wrong that would be BIG news.

        But even if so, I wouldn’t think your attitude would be endearing to other proponents of CA concealed carry.

        • Notwithstanding two judges in the 9th Circuit Court of appeals, Gura has been wrong and lost every concealed carry case he has argued and not just those you mentioned, no news there, big or otherwise.

          The problem the California concealed carry proponents have is with the US Supreme Court. I am just the messenger whose Open Carry lawsuit has always argued that SCOTUS meant exactly what it said in the Heller decision.

          Every other concealed carry lawsuit, including Gura’s, argued that the core Supreme Court precedent (Heller) was wrong. And yet there are some folks still amazed that Gura has lost so many concealed carry cases.

          • Scott says:

            And what lawsuit is that?

            • My case is the one where the district court judge held that there is no Second Amendment right throughout the state, not even in the curtilage of one’s home and likewise held that firearms fall completely outside the scope of Fourth Amendment protections, even in the home and even in those parts of the state where it is legal to openly carry firearms.

              Moreover, despite clear and decisive precedent to the contrary, the district court judge held that minorities may not challenge criminal statutes, such as the 1967 Black Panther Open Carry ban, via a Federal Civil Rights lawsuit. Minorities must wait until the criminal statutes have been enforced against them and challenge the constitutionality of the ban in criminal court.

              I’m surprised you haven’t heard of it, the case was filed in November of 2011, the NRA tried to derail it, and after nearly two and a half years of litigation, I finally got my final appealable order.

              The case is Nichols v. Brown, my appeal will be filed at the end of the month.

              • Scott says:

                Well so far your track record then isn’t any better than Gura’s as far as that goes. Of course he does have 2 “wins” at the SC level (not that I think Gura walks on water though).

                Good luck to you. Hope your lawyering is as impressive as your bravado.

                • My “lawyering” is impressive which is why the NRA tried to derail my lawsuit just as the NRA tried to derail the Heller lawsuit before it reached SCOTUS.

                  There are a hundred procedural ways a hostile district court can use to avoid answering a constitutional question. They were all used against me and the court even invented a few new ones to throw my way.

                  Given that I was never going to win in district court with this particular judge, my best hope in prevailing upon appeal was that the district court judge issue exactly the decision that he did.

                  As to Gura’s “wins” before SCOTUS you might want to listen to the oral arguments in Heller and McDonald. Justice Scalia spoon fed Gura his answers. Worse, Gura was invited to challenge the D.C., permit requirement and Gura refused because he wants to turn a fundamental, enumerated right into a privilege contingent upon a government issued permission slip.

                  • Scott says:

                    So perhaps Gura has lost because the courts are hostile too? Just a possibility I suppose.

                    Anyway, rather than argue with me you probably ought to be working on the appeal. Best of luck.

                    • Thanks!

                      Everything I need to prevail on appeal has already been filed in my district court case. It is mostly a matter of copy and paste into a brief conforming to the mind-numbing FRAP and Circuit rules.

                      On a side note, most folks don’t seem to appreciate the fact that AG Harris will be arguing that the Peruta decision was right in my appeal while at the same time arguing that the Peruta decision itself was wrongly decided in the Peruta en banc hearing.

  6. Scott says:

    So you’ve lost at the state level?

    And haven’t yet filed an appeal to the 9th circuit?

    Want to make sure I understand where your case is.

    • Scott says:

      Sorry, that was a reply for Nichols.

    • My lawsuit was never filed in a state court. That was disinformation put out by the NRA. My lawsuit was filed in Federal District Court.

      There was an appeal of the denial of my preliminary injunction filed last year. My appeal, as well as several others including the NRA concealed carry lawsuit filed against the Orange County Sheriff was stayed pending the Peruta decision.

      The NRA/CRPA filed a motion after the Peruta decision was decided in its concealed carry case out of Orange county to issue the injunction. The motion was denied because two of the three judges in that case think that the Peruta decision will not survive an en banc hearing or cert petition to SCOTUS.

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