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Cert Denied in Peruta v. California

The Supreme Court will not hear Peruta. It looks like Thomas and Gorsuch dissented from the cert denial, signaling that Gorsuch is willing to take the torch from the late Justice Scalia when it comes to Second Amendment issues. From the dissent, written by Justice Thomas:

Had the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result. This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion. As we explained in Heller, to “bear arms” means to “wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offen­ sive or defensive action in a case of conflict with another person.”

For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem anti­ quated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.

Also, some tea leaf reading: if Kennedy retires this summer, as is rumored, if you ask me it’s a strong signal that he’s not the weak link in the Heller majority. The case would be heard before whatever justice replaces him, which given Trump’s short list, is liable to be good on the issue. I’ve long argued that I believe Roberts’ judicial minimalism is the issue we’re up against, and not Kennedy’s tendency to switch hit. Though, it could be a combination of both.

What we do know is that Thomas, Alito, and now Gorsuch have written or joined forceful dissents of the Supreme Court abrogating its responsibility to the Second Amendment. That’s three solid votes. Unfortunately, we need five solid votes to move the ball forward.

44 Responses to “Cert Denied in Peruta v. California

  1. Brad says:

    Bad bad news for the gun owners of Commiefornia.

    With anti-gun fanatics like douchebag Gavin Newsom looming to inherit the Governers office in 2018, the anti-gun laws in California are going to get much more extreme before SCOTUS finally gets around to slapping them down. And even that grim assessment assumes pro-rights appointees to SCOTUS, something which could be derailed by a stealth anti-gun appointee like Souter or a Democrat winning the Presidency in 2020.

  2. JeffinCA says:

    Are there any other carry cases in the pipeline?

  3. Patrick Henry, the 2nd says:

    Terrible news. Courts continue to make the Second Amendment a second class right.

    #SCOTUS review since 2010:
    -35 1st Amendment cases
    -25 4th Amendment cases
    -ZERO 2nd Amendment cases

    Amazing.

  4. PT says:

    Right to carry is now a political question given the makeup of SCOTUS.

    It’s either pass national reciprocity or re-elect Trump and hope for some retirements or deaths. I see national reciprocity happening before we get 5 SCOTUS members who take their job seriously.

    The court refuses to do its job (7th split with everyone else) likely due to either Roberts and/or Kennedy not liking the little people to have guns beyond their bedrooms. Even then they seem to refuse to back up their own rulings.

    What good is SCOTUS if they don’t do their job?

    There is an open carry case in California but that will die the same fate as Peruta, they simply don’t want to take the case because they will be forced to make the nation shall issue and they don’t want to do that.

  5. great unknown says:

    Kennedy may be retiring. Ginsburg may be “retired” by circumstances beyond her control.

    There’s still hope.

    Which is why liberals are growing more hysterical by the minute.

    • aerodawg says:

      ginsburg croaking is the best thing that could happen to us, followed shortly by breyer

      • great unknown says:

        Nasty. I would be more than satisfied that the various weaknesses and lessened abilities associated with old age force her off the court.

        After all, she means well, even if she is an acolyte of a corrupt legal philosophy.

      • Tun says:

        No, she just needs to retire to spend more time with her grandchildren. NOW.

  6. I would note that the SCOTUS also denied the government cert in their appeal of Binderup from the 3rd Circuit. It’s a win for gun rights. Dissenting from this were Ginsburg and Sotomayor who would have granted cert.

    I am a bit surprised that Justice Alito didn’t join with Thomas and Gorsuch in dissenting on Peruta.

    I agree that passing national reciprocity may be the only way that ordinary people will ever get carry in states like California, NJ, and NY (esp NYC).

  7. Lance Lot Link says:

    Its a loss of a battle not the war.

    Consider, Gorsuch would not dissent unless he felt it worthy of reversal.

    Kennedy, Ginsburg and Breyer all are facing retirement. Kennedy is a swing vote, Ginsburg and Breyer are firmly against the 2A.

    Replacing one would help, two would be fantastic, all three would mean a virtual lock in.

    Kagan, while probably being in the anti 2A camp, may just be a new swing vote.

    Overall, I think that given the liklihood of a shift in favor of the 2A over the next 3 years, a delay now helps the 2A in the long term.

    So again, the battle is lost, but we may have just won the war.

  8. Whetherman says:

    “…signaling that Gorsuch is willing to take the torch from the late Justice Scalia when it comes to Second Amendment issues.”

    Here’s a sincere question: At what point in the SCOTUS decision process do the Justices know with fair certainty how the other Justices are going to vote?

    A week or so ago we had a discussion of legislators cosponsoring legislation, only because they know it won’t go anywhere. But, they or their parties can point to their cosponsorship of legislation they may not have actually voted for, to win support from voters who would have liked to see it pass.

    Once a SCOTUS Justice knows the majority vote is going to go one way, he/she is free to vote the opposite way if there appears to be political advantage for their faction by doing so – whatever their own opinion may have been. (It is possible they have no motivating opinion, one way or the other.)

    (And, what the constitution means is dictated solely by political alignment, now.)

    For example, speculating what Gorsuch’s vote “signals,” and how that might play into the nomination of a Kennedy replacement, has political implications for the faction that nominated Gorsuch; and popular support for that nominee remains somewhat important, even now that the nomination process has become almost completely rigged.

    I know my belief that both ends of the political spectrum are equally scummy and motivated only by the desire for raw, partisan power is not a popular one; but that’s the way I’ve come to see these charades.

    • Anon Coward says:

      I have a friend who clerked at the Court for a justice, and also know two who regularly argued before the court (gov’t lawyers). They all say there are few or no secrets between the justices when considering issues, especially on contentious cases.

      This is second-hand from an anon coward, so take it for what it’s worth.

      • Whetherman says:

        Most of us knew what to expect from the people we worked with, in terms of our professions, so that is no surprise. It is entirely plausible that the SCOTUS Justices have each other well scoped-out within months of joining the court.

        I know better and more astute people than I am have commented on the decline of the SCOTUS into partisanship and ideological alignment — you would expect the court to be the last refuge from raw political motivations — but where we are is pretty scary.

        With regard to being an “anon coward,” I don’t see a lot of folks around these parts using their real names. And, commenting in a public forum at all is against my better judgment, in our current reality. Room 101 may await, sooner than we think.

        • Richard says:

          Certainly not you. You even use a left-wing nom de guerre. By the way, are you aware that your source in the last post is Soros funded.

          • Whetherman says:

            “Certainly not you.”

            Oh? I’ve got a friend in the White House? It’s guys like you who are holding all the statist cards, at the moment. But you’re still crying victim, aren’t you?

          • Whetherman says:

            “By the way, are you aware that your source in the last post is Soros funded.”

            Assuming you are referring to the piece from “Reveal,” and that it’s a work of the “Center for Investigative Reporting,” to tell you the truth I had never heard of them, and had to turn to Fox News to learn about the connection to George Soros.

            But I’m one of the few actual “independents” in the country (I dislike all political power roughly equally), so all I care about is, Soros funded or Koch funded, what did a source say that was wrong? I’m still waiting to hear what that piece said that was substantially false or misleading.

            • Richard says:

              I have already pointed out a number of misleading statements. The Soros connection explains why. No independent would give credit to Soros.

              • Whetherman says:

                “No independent would give credit to Soros.

                Then who should an independent give credence to?

                There are effectively two “sources” in this country, those that trace to Soros, and those that trace to the Kochs — and I’m only citing a single surname for each, though there are plenty others in the loop at either end of the spectrum. Apart from those, you have the wackadoodle sources, and I wouldn’t inquire too deeply into the support for many of those, lest you be disappointed to once again run into a Soros or a Koch.

                I know the “right side” from having worked with and even been published by some of them for years. I eventually parted with them when I had discovered enough scumminess and self-serving to find it intolerable. I know less about the left, because I never associated with the same level of their entities formally. I have no reason to doubt they operate in equally scummy manners, but I don’t have the analogous life experiences to fall back on to prove it.

                You sound like me twenty to thirty (plus) years ago. Many of us True Believers can learn, but many never seem to — their Belief is too strong. It is in many ways analogous to addiction.

                • Richard says:

                  Before there was Bloomberg, Soros was the financial kingpin of anti-gun politics. He is still #2. Defending him does make me question where you really are on gun control.

                  • Whetherman says:

                    “Defending him does make me question where you really are on gun control.”

                    How am I defending him? By equating him to the moneybags who fund what they require “the right” to think? They’re mirror images!

                    You can always tell a True Believer. They demand that to be “real,” you have to engage in certain rote recitals, say, damning a Soros or other boogeyman, the same way Fundamentalist Muslims demand that public statements begin and end by praising Allah and the Prophet. Participation in the Two Minutes Hate is mandatory, right?

                    George Soros = Emmanuel Goldstein, I guess.

                    • Richard says:

                      You may not like the Kochs but they have no record of supporting gun bans. Soros is a kingpin.

                      You don’t need a weatherman to know which way the wind blows.

                    • Whetherman says:

                      “You may not like the Kochs but they have no record of supporting gun bans.”

                      They have no record of supporting anything that is not in their self-interest; though they will support any scummy outfit that will include one of their self-interested issues in their bag of tricks, or, support candidates who will support the Kochs self-interest.

                      E.g., the Kochs aren’t particularly religious, but you’d be surprised how many “religious right” groups they support as long as those groups will support Koch candidates.

                      And it’s not just the Kochs. For example, the National Right to Work Committee is a front for the Religious Right, and corporate families including the Kochs over-fund them, and allow them to shift resources to social conservative issues as long as they continue to do enough with labor issues. They provide formal training to activists for every issue considered to be “on the right,” not just anti-labor.

                      I know because I had their training at one time. But I quickly decided there were some things I was not going to fellow-travel with.

                      Yep, I saw which way the wind blew. But I never would have believed it would take us where we are today, or that so many gun rights activists would just go with the flow.

                    • Whetherman says:

                      Forgot to add, you could expect the Kochs to pull the rug out from under gun owners (or any other of their willing fellow-travelers) in an instant if it came to a tradeoff for their own self-interest.

                      But, gun owners are possibly the most easily gulled constituency in the country; all you need to do is express sympathy for us and we’ll follow anyone anywhere. Nothing needs to be delivered. Master three words (“enforce existing law” or “tough on crime”) and we’ll follow. So, our issue remains an important decoy for almost anyone on the right to use to win support for themselves or their candidates.

                    • Richard says:

                      You can speculate all you want about the Kochs but we know where Soros is on guns and have known for decades.

                    • Whetherman says:

                      “You can speculate all you want about the Kochs”

                      I have no need to speculate. I’ve known them by their fruits.

                    • Richard says:

                      And their record on guns id?

  9. NJDave says:

    And with it goes any hope I had for NJ under Gov Murphy…

    • Louis says:

      Under Gov Murphy, not having concealed carry will be the least of our worries in NJ. At the very minimum, we’re going to get an expanded, one-feature AWB (probably with no grandfathering), 10-round magazine limits (again, no grandfathering), a ban on ordering ammo online or by mail, registration of all firearms kept in NJ, a training requirement in order to purchase a firearm, and a special tax on gun sales: https://www.murphy4nj.com/issue/gun-violence/

      The only questions are, how far will the NJ Dems go? Annual fees for each firearm we register? Insurance requirements? 5-round rifle/shotgun capacity limits? How big of a tax on firearm sales? The possibilities are endless.

  10. MarkPA says:

    By now it ought to be clear that SCOTUS justices are reluctant to make so bold a move as to declare the right to bear arms a Constitutional mandate. It was so much easier to decide Heller & McDonald with an opinion limited to INside the home. What should this mean to us, we PotG?

    The same timidity can be seen in Congress. What should that, too, mean to us?

    I think we ought to identify as many tiny and less controversial measures and push them along: judicial cases; and, Federal bills. Each tiny bit of ground we can recover moves us slowly toward our goal of a respected RKBA.

    Replacing just 1 justice is NOT likely to be enough if Roberts really wants to vote with the liberals and 4 conservative justices just aren’t willing to go very far on the next case. We need to understand that each tiny victory in SCOTUS boxes that institution in; whereas, a long string of refusal to grant cert gets us nowhere.

    Gaining a Republican majority in both chambers of Congress doesn’t get us anywhere if the leadership feels no compulsion to dance with the one that brung them. We need to convince the leadership that we will replace their RINOs with conservatives who won’t play ball unless they feed us a continual stream of – again – small incremental gains.

    • Whetherman says:

      “The same timidity can be seen in Congress.”

      Have you considered that what you mistake for “timidity,” is actually lack of actual support for gun rights?

      As I point out many times, ours is a useful issue for vote-getting, but I can testify after many decades of observation that if political action matched election-time rhetoric, by now firearms ownership and “bearing” would be not only mandatory but government-subsidized.

      There is no gain for those who would rule, in having an armed population; because ultimately what they seek is to have their word be law. And, that is totally independent of the ideology they espouse.

  11. dwb says:

    Really, we have no idea why they denied cert. Could be that the right to bear arms, really means historically the right to open carry pistols, or maybe just rifles (“militia” type weapons). Who know, maybe Nichols is right after all.

    • Whetherman says:

      “Could be that the right to bear arms, really means historically the right to open carry pistols, or maybe just rifles…”

      Historically very affluent militias (i.e, subsidized by local economic interests) had light field artillery, and there were no questions raised about that. Also, it was legal to outfit a private ship as a warship, even without a letter of marque, as long as you didn’t use it to engage in piracy. E.g., the founding of the Argentine Navy was by an Irish-American who purchased whaling ships and outfitted them as warships.

  12. Kevin Baker says:

    Am I wrong, or does it not require only FOUR Justices to grant cert? Gorsuch, Thomas, Alito and Roberts (who didn’t join in the dissent?)

    We know where Gorsuch and Thomas stand. What happened to Alito and Roberts? Did they fear they couldn’t get Kennedy’s vote and thus the question was better left untouched?

    • Sebastian says:

      Alito has joined a past dissent from cert denial. He also wrote the McDonald opinion.

      It does take four. It could be the fourth vote is strategic… a no vote only to prevent the Court from taking a case it might lose.

      • dwb says:

        Alito has joined past dissents, true, but I did not think that they were public carry cases (I thought that they were “in the home” type). So why not now?

        Possibly Alito and/or Roberts think open carry is the “historical” right. Or, they are just taking the long view and want to wait until someone retires to get a more solid opinion. We will never really know.

        • MarkPA says:

          My take is that the justices are very reluctant to take any 2A cases; and, especially a carry case. Ask yourself: Why should THEY be bothered by the status quo?

          It would have taken 4 to grant. Thomas and Gorsuch were 2. I’d bet that Alito was a 3’rd. So, who would have voted no or abstained? Kennedy and Roberts. We shouldn’t be surprised that these two would have voted no or abstained. They are apt to want to NOT disturb the status quo.

          SCOTUS would much prefer that the Circuits find an answer they could agree with. Or, that Congress takes the problem out of their hands. Why should they take some initiative?

          They can cheerfully ignore the issue until they see a case that they could resolve in a way that 5 justices would like to resolve it. A handgun in the home was such a case for both Heller and McDonald. So, they were willing to step up to the plate. Open carry or concealed carry in public would be much harder. Why take an OC when they could wait for an easier case of CC? Why take a CC when they could wait for an easier case of OC? If they say we citizens can carry outside the home they would probably have to say something about where they would allow us to carry; more trouble. Should they impose any training or testing requirement? Could they allow only politically-connected people?

          If we want progress we need to look for really narrow cases that don’t require the justices to make hard decisions they don’t WANT to make.

          • dwb says:

            The Supreme Court took up an extremely hard 4th amendment case about historical cell site data for 2017-2018 (Carpenter v. United States).

            So the fact that they might eventually have to say something about the implications of a ruling rarely stops them from taking a case. Nor does the difficulty of a case, or the controversy.

            More likely: the 5th vote for public carry is uncertain. Maybe the 4th vote is uncertain too, or thinks open carry is the “real” thing.

      • great unknown says:

        Or to delay taking the case until another Gorsuch equivalent [or two, or three] is seated on the Court.

  13. MattW says:

    Or tit-for-tat? “If you allow us to deny cert in Peruta we’ll vote so cert is denied for Binderup”?

    • Richard says:

      This strikes me as grounds for impeachment. But we will never know because of the secrecy and it is par for the course as that are the way things are done in DC.

    • Eric says:

      tit-for-tat is not likely in S Ct like it is in Congress. There are not likely any lobbyists running the halls with bags of money in the S Ct.
      After hours threats are more likely to be the order of the day. That and thinly veiled assassinations. RIP Scalia

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