Anti-Gun Forces Pushing for En Banc

I guess California and Hawaii going shall-issue is a bridge too far for them, for they are willing to push for an en banc ruling, which would likely reverse Peruta, and put the decision to appeal back in the hands of the NRA, probably sending this to the Supreme Court. They have every cause to be worried, because even now sheriffs are being deluged with concealed carry license applications. The Supreme Court, having rejected several new gun cases this week, probably strengthened the hand of the antis, figuring they can get reversal, and the Supreme Court will decline to review. Unfortunately for us, that is not an improbable outcome.

31 thoughts on “Anti-Gun Forces Pushing for En Banc”

  1. I found a pdf copy of the “Concealed Weapon License Application Process” online. The text jives with a hard-copy that I received today directly from the Santa Cruz County California Sheriffs office …

    “Based on current law, and in the absence of any applicable exclusionary factors, self-defense or personal safety qualifies as sufficient “good cause” for the issuance of a license. However, if the law changes in any respect, we may require applicants to supplemnent the “good cause” statement in order to retain any CCW License that has been issued based on the law in place at the time the license was issued.”

    Santa Cruz County California is essentially shall-issue at this point.

  2. Godspeed to those applying.

    A problem for the antis is all these Cali counties going Shall Issue.

    Say Peruta is reversed, given the “discretion” allowed the above counties they *could* stay Shall Issue.

    Meaning that instead of defending the status quo, the antis are forced to demand a rollback. Which is a bit harder.

    Though if they’re in a Triage situation they’ll defend what counties they can, and if they can’t pressure enough counties to go back to may issue (which they have a more than fair chance of ) then they’ll try to get a “good cause” mandate passed legislatively.

  3. I thought the same as Chuck Miller that only the Sheriff had standing. I agree the possibility of another judge asking for a rehearing is high. There are a lot of anti-gun judges.

    However there were 2 other cases very similiar that were heard the same day. Should have the same judgement so we have 3 shots at getting shall issue to stand.
    I am not so certain that a rehearing will reverse this judgement.

    1. Only the sheriff currently has standing, but the state has timely filed a petition to intervene, which would effectively add the state as a defendant and entitle it to petition for rehearing en banc or petition for a writ of certiorari.

      The Federal Rules of Civil Procedure have pretty permissive joinder and intervenor rules, and there’s precedent favoring intervention by a state in situations like this, so I wouldn’t hold my breath waiting for the state to get benchslapped over this.

      1. How can the state have any interest in the case (legally) since the suit was against the county of San Diego, and no state law was changed, only that self defense was a valid reason for having a CCW.

        1. Because there was a successful federal constitutional challenge to state law. The fact that it was an as-applied challenge rather than a facial challenge is essentially irrelevant.

    2. (To RAH)

      There are currently 27 active judges on the 9th Circuit. 2 of them voted “aye” on Peruta, and the Chief Justice Kozinski is libertarian / conservative.

      That leaves 24 possible judges that could request that ELEVEN of the judges be forced to sit through this same case again. Likelihood for that is low.

      I’ve also been told (not independently verified) that no en banc has ever over ruled a 3 judge panel.

  4. Aren’t they running out of time to ask for en banc? I thought the deadline for parties to the suit to request had already passed and that the circuit judges only had one week beyond that to request the hearing.

  5. ” Unfortunately for us, that is not an improbable outcome. ” True. It’s a big risk. But it also has the potential of burying the antis. Big rewards have big risks. Still makes me queasy with worry it could all go pear-shaped.

  6. En Banc Sua Sponte (a judge calling it themselves without a request from the defendant) is pretty rare. Given even the most tenuous of threads – like this request – the hope is that some judges in the Ninth will grab this and run with it. We’ll see.

    From a strategy standpoint I think they are taking a real risk here. With Drake under consideration for cert in April, outside parties playing games with a decision for the sheer goal of upsetting the apple cart might be viewed skeptically. It actually lends credence to the cert petition, which claims (in part) that the lower courts will do anything and everything to avoid an outcome that includes a protected right to bear arms in public. It’s one thing to see a defendant make such a request, because that is part of the process. But to have outside parties – including the state, which actually declined a previous opportunity to be involved – to step in and intervene only to deny the plaintiffs the win that the defendants now concede?

    That’s gonna raise eyebrows in more quarters than our own.

    By chance, does anyone know if there is another circuit outside of DC that has not ruled on this yet, that also contains may-issue states? In other words, is it the case that all circuits who have may-issue states have now spoken?

    Crazy idea: the Supreme Court has not been avoiding the case out of disrespect, fear or concern about backlash. Maybe they were just waiting to hear all the excuses that may-issue parties could come up with, in order to rule on every argument presented, at the same time?

    In other words, line up all the bad arguments and take them in one shot.

    Call me the eternal optimist (even though DC is still the far outlier).

    1. That was my guess about the prior declines. The 9th was the last Circuit with “may-issue” in practice and effective use of “may” to mean “no-issue” in the case of Hawai’i. With the Peruta, Richards, and Baker heard all the “may-issue” states and arguments have finally been heard from. All the stakeholders have weighed in.

      Personally I feel sanguine about the outcome if the (current) Supremes take Drake or a Cali case. The opinions out of the 7th and 9th track Heller point by point, they are written “thus-therefore.” The “anti” right to bear opinions spend most of their time basically arguing against the Heller reasoning process, rely on historical cites the Court dismissed, and minimizing the actual decision by stating that the Court didn’t mean what it said.

      1. I agree. I was surprised to see the Circuit decisions out east. They didn’t plough any new theory – they just went straight to interest-balancing and threw about a lot of “public safety” concerns that no shall-issue state has experienced. I mean, to believe the arguments of the 4th Circuit in Woollard, you would have to believe that population of Maryland (the only may-issue state in the 4th) is somehow disposed to a level of violence that the population of neighboring states are not. In other words, you have to argue that the population of Maryland is more bestial than that of Virginia.

        So yeah, based on the arguments presented, I think it hard for the Supreme Court to do much more than affirm something like Peruta. Of course, they can get creative and make up their own arguments. But if they have to select from those presented nationwide…it seems to favor us.

      2. “Sanguine. Hopeful. Plus, point of interest, it also means ‘bloody’.” —Zoë, Firefly

        Well, that covers all our possible outcomes then, doesn’t it?

    2. The 1st circuit has yet to really weigh in. Hightower v. Boston, 693 F.3d 61, 72 (1st Cir.2012) disposed of the issue without really ruling on the right to bear. Davis v Grimes, a Comm2A suit filed by David Jensen with more and better plaintiffs is pending decision at the Massachusetts district court. Comm2A filed a notice of Peruta last week.

  7. One big point on how hard it might be for the CA Attorney General to step in: no state laws were affected.

    The actual text of the law reamins unchanged and the state actors are not in the least asked to do anything different. The change was one in which the sheriff’s are being told that self-defense is acceptable. The actual good character and morals clauses are still relevant, to the extent they include self-defense and not be applied in subjective ways.

    In other words, the state law is fine provided it is applied evenly and objectively. The AG has to claim that an even-handed and objective application of a state law is a Bad Thing(tm).

    1. This ^^^^^^

      The problem for the antis is that by forcing to defend May Issue they’re put into the position of “claim[ing] that an even-handed and objective application of a state law is a Bad Thing.”

      The problem comes in they have to say “Sure non-police citzens should be armed for self defense, but only the *important* ones!”

      That’s a shaky middle ground. They can’t even hide behind “we only want to make sure people have training and background checks” because May Issue’s only purpose is to deny people who would pass a check and could get trained.

      1. The problem comes from them having to say “[s]ure non-police citzens should be armed for self defense, but only the *important* ones!” in public.

        The Progressive leadership and its most well-heeled backers have no problem with this notion amongst themselves. The Inner Party just dosen’t like having to say it out loud someplace the Proles might overhear.

        1. A-yup.

          That’s why NYC, Boston, LA, and such *have* CCW permits. But the antis are quiet about those.

          Bloomberg never got rid of NYC’s carry law did he? Even though he was more than connected enough to turn it into full on no-issue.
          (It would have been trivial for it to go to HI style no-issue).

      2. The problem for the antis is that by forcing to defend May Issue they’re put into the position of “claim[ing] that an even-handed and objective application of a state law is a Bad Thing.”

        This is the same state government whose Democratic-controlled legislature just voted down a bill to expel a member who’d been convicted of a felony, on the theory that the judge in the case could still overturn the jury verdict.

        This is the same state government whose Democratic-controlled Department of Justice just certified that “smart gun” technology is commercially available and ready for prime-time, despite the fact that it’s not really true, thereby triggering a law prohibiting new handguns that lack that technology from being sold in the state.

        The idea that they’re not shameless enough to defend may-issue, and/or that the California electorate isn’t stupid enough to buy it, is, let’s say, at variance with history. They’ll dress it up in some nonsense about how law enforcement needs discretion over permit issuance to prevent the proliferation of guns in public, and won’t someone think of the little children, blah blah — and people, even many judges, will lap that shit right up.

        1. Alas you’re probably right.

          Given that Cali was able to get to it’s state via the actions of a group of politicians has has steadilly increased their power and stranglehold.

          Heck they’re refusing to eject that convicted felon because doing so would put them to within one seat of losing their *super* majority.

          That said, having them fight this when there’s as little distractions and “bloody shirts” is better.

          Especially since the ground is set that, now, May issue is the fringe position.

        2. I agree brother. The state can always argue ‘public safety’ and many will buy it. But now we’re talking about a possible SCOTUS intervention.

          I think at the circuit and political level CA has the win. The real test is above all that.

          Read Peruta and tell me it wasn’t a direct shot to the Supreme Court. You could not create a stronger split than these guys made.

          1. Which will have an interesting result for the en banc review.

            Correct me if I’m wrong but I believe the 9th’s Chief justice wrote the Peruta ruling. And yeah it was made very strong, very foundational and built very much on Heller.

            Meanwhile the dissident… well was what you’d expect for a “public safety, police know better, teh children” pap.

            And if it does go to SCOTUS having the vast majority of the US being shall issue, does help.

            And Peruta’s not “scary” to the judges. As it’s still training, background check, permit, and the like.

            The question there is “good cause” which is at least narrow enough to not be as spooky.

            (And I say that as someone who wants nationwide Con Carry.)

            But first Good Cause / Discretionary Issue has to be staked in the heart.

    2. One big point on how hard it might be for the CA Attorney General to step in: no state laws were affected.

      Doesn’t work like that. The fact that this was an as-applied rather than a facial challenge to California law doesn’t mean the state has no interest in the case.

  8. Worst case outcome for us:

    1) Peruta is overturned en banc.
    2) SCOTUS refuses to hear an appeal and “may issue stands.”
    3) The CA State Legislature removes permitting authority from the counties and requires all applicants to demonstrate “good cause” statewide, which removes existing permits from the de facto shall-issue counties.

    You can estimate the odds of each happening.

    – Will Peruta be overturned?
    A) Will the 9th hear it en banc? Frankly I think this is more likely than not. It only takes one judge to go for it. Let’s say this is a 4/5 chance.
    B) Will the 9th overturn Peruta? 2/3 of the justices were appointed by Dems and are presumably anti-gun, but the 10-judge panel is guaranteed to include a pro-2A guy. So let’s say the panel is 6 antis vs. 4 pros. I think it is at least a coin toss that they overturn; maybe a bit worse. Let’s say a 3/5 chance they overturn.

    – Will the SCOTUS require shall issue?
    A) Will they hear Peruta? Frankly I think the odds are good for the reasons described above. Still, it is all relative; SCOTUS skips many cases. I fear there’s a 2/3ish chance SCOTUS does NOT pick up the appeal.
    B) If they do grant cert, will they overturn the 9th and require shall issue? This would be a 5/4 decision, I suspect. The two variables are (1) do any of the Heller 5 die or retire? and (2) is “bear arms” a step too far for any one of the five? It is always tough to preduct SCOTUS but I think the odds of overturning the 9th are at least 50/50. Let’s call it 1/2.

    – If the 9th is allowed to overturn Peruta, and the SCOTUS lets it stand, what are the odds Cali revokes CCW authority from the sheriffs to force a may issue system? Frankly, its Cali. I think the Empire will Strike Back here. Let’s call this a 4/5 chance.

    So putting all that together, what’re the chances that in the near to mid term we end up worse off than we were before Peruta?

    – EN BANC (4/5)
    – 9th OVERTURNS (3/5)

    So we get:
    4/5 x 3/5 x 2/3 x 4/5 + 4/5 x 3/5 x 1/2 x 4/5 = 25% + 20% = 45%

    You can question my assumptions but I think at the end of the day it is basically a coin toss as to whether we end up WORSE at the end of the day. That said I think it is a gamble that must be taken.

    1. It only takes one judge to call for a vote, but it takes a majority of the full court to decide to hear it en banc.

  9. There is apparently some question whether the California A-G, having failed to intervene before the decision, has legal power to intervene now. The Brady Campaign is apparently without any standing at all.

    1. Yeah, the Appellate rules out there are permissive before a decision, but I have not researched the jurisprudence on previous attempts (assuming there are any) to intervene post-ruling, when the losing party has conceded and decided to go no further.

      Kinda hoping someone else does that homework for me. ;)

      Either way, it’d be an unusual twist. I think the more likely scenario would be a sua sponte approach. I mean, if the whole court is inclined to go en banc, that is a lot easier than contriving standing when it might be hard to argue it. Then again, they might just be positioning themselves to intervene in the event the Ninth takes it up themselves.

      Oh the permutations always seem more fun in the Ninth.

  10. I’m still waiting for Richards and Baker.

    SD won’t appeal their loss in Peruta, I wonder if the panel is waiting until after Mar. 7 to rule on the other two to give any objectors on the Circuit a chance to call for an en banc vote on Peruta first?

    They could hardly (logically) not object to Peruta and then complain about Richards or Baker, that would set up an intra-circuit split. I assume the Supremes would -have- to act at that point?

  11. Librarian from Calguns says this on 3/1:
    9th has stayed the mandate to the lower court; that’s not a big issue, since San Diego has agreed to issue according to the requirements.

    Brady Campaign and CA Attorney General submitted requests to be allowed to intervene; the Court said those were timely, so apparently they will look at those requests. Court also said the time for petitioning for rehearing has been extended in favor of those two requests.

    What has NOT happened is the Court ruling on whether each may petition for rehearing.

    First the Court would have to accept that idea, then, if it did, such petitions might be made, then the petitions considered and ruled on.
    See here:

    1. Meanwhile the “will of the people” on the issue is being clearly demonstrated to all observers by thousands of applications being submitted, even with all the remaining hoops and costs of state law and possibility of reversal, now that doing so isn’t a forlorn hope or exercise in futility.

      As those application counts rise, even if the worst happens it will be tough for those LA-adjacent sheriffs to backtrack their policies knowing how many motivated voters they’ve created. If I were them I’d keep issuing under Peruta rules and punt any rescinding changes up to the state legislature.

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