Peruta v. San Diego Loses En Banc

This is probably it for the Second Amendment in the 9th Circuit, at least as far as bearing arms goes. From the decision:

We hold that the Second Amendment does not protect, in any degree, the carrying of concealed firearms by members of the general public. This holding resolves the Second Amendment question presented in this case. It also necessarily resolves, adversely to Plaintiffs, their derivative claims of prior restraint, equal protection, privileges and immunities, and due process. In light of our holding, we need not, and do not, answer the question of whether or to what degree the Second Amendment might or might not protect a right of a member of the general public to carry firearms openly in public.

I’m hoping they do not appeal this. Without Scalia, this would, if we are very lucky, split 4-4, which would uphold the lower court ruling.

If Hillary wins this election, there will be no judicially enforceable Second Amendment of any meaning. That’s not hyperbole, it’s what’s going to happen. I also am very skeptical that losing three national elections in a row is going to make a lot of GOP and Dem politicians start whispering among themselves that NRA and the gun vote isn’t such the big deal they think they are.

This was really no time to nominate a clown car campaign to go against Hillary.

49 thoughts on “Peruta v. San Diego Loses En Banc”

  1. NRA, GOA, SAF and other gun rights groups need to GOTV in an aggressive manner. Using the same hyperbole isn’t going to work anymore!! They need to say ot bluntly, blatantly, and forcefully…..A Hillary Presidency means Heller and McDonald will be overturned by court packing based left

  2. (Continued) wing judicial activism, gun manufacturers will be sued out of existance for the purpose of preventing people from buying the products they use for exercising their 2nd amendment rights, and the police and other government agents will be kicking in your door to violently confiscate your guns!! No more nice guy patty cake bullshit. Make people understand that these fears are real, and get those on the fence to come out and beat that communist witch.

  3. >>A Hillary Presidency means Heller and McDonald will be overturned by court packing based left>>

    Only if the 2A side are idiots.

    If Hillary is elected, all, and I mean all, 2A litigation needs to come to a screeching halt.

    It means we lost the battle.

    To win the war, it means we need to wait until the GOP regains its sanity and wins, and enough time has passed to gain some semblance of balance on the SCOTUS.

    Until then, not losing is the goal.

    If Trump wins, or if he is replaced by a more presidential candidate who wins. Then the fight continues now.

    But not losing now to let the next generation win may be the most viable option.

    Of course, we can push now if Hillary wins and lose 8-1 in the SCOTUS too, cause, you know, making a stand is important.

    I suspect that may be the end result and will be the final chapter in the book “How the 2A Died”

    1. Playing to not lose means defeat is your destiny! Get behind Trump on a leap of faith, or say hello to Chairman/Comrade Clinton! If the Stalinist, Anti-Gun, leftists win, the next generation will have nothing. Once rights are stolen, they are never given back, and outside of violent revolution, you won’t get them back! Either win, or be defeated.

      1. Playing not to lose when you can’t win works.

        Hopefully we will get a GOP win in November.

        If not, then its damage control till 2020.

        Personally, I think Trump will either win or lose big. I think he’s a terrible candidate, but as of today, he’s the one. Like many others, I never expected him to get this far.

        He’s got my vote in November, but I’d rather have seen someone a bit more presidential, to put it politely.

        We will see.

    2. You do know that a GOP win after a Hillary presidency will undo nothing, right?. She will appoint federal judges and SCOTUS justices young enough to sit on the bench for 30 or 40 years. They don’t just go away if a Republican wins the next time.

  4. So they’re basically ignoring the whole bear part in ‘keep and bear arms’?

    It sounds like they’re doing the old defeat-in-detail two step. Where because there is some /potential/ OC right (maybe), that there is no right at all to conceal carry.

    Meanwhile they utterly ignore Cali’s bans on OC.

    But that’s just me extrapolating from the exerpt. Is there a link to the ruling itself?

    1. I was going to say in my own comment, but you beat me to it.

      The 9th Circuit’s en banc quite properly side-stepped OC. The question on the table was about may-issue concealed carry permits, so the court did not consider OC. As much as I disagree with their opinion on CC, not answering a question that was not asked is the right move.

      Now, though, with “good cause” requirements for “may-issue” CC upheld and OC outlawed (which was itself upheld because CC permits are nominally available), ALL carry is effectively dead in Kalifornistan. Unless the make-up of SCOTUS changes to a more conservative position, the courts will not save us; the only hope for CA residents is to fix their Legislature and Governor and pass 2A-friendly legislation (like THAT will ever happen).

      1. Or federal preemption… Sebastian??? Want to chime in here? I’ve seen you mention preemption many a time.

        1. I think that’s the solution. We just need to take this out of the courts hands.

        2. National reciprocity is still on the table, but a few Dem gains in the senate would kill it even if we have someone in the White House that would sign.

      2. I suppose the plaintifs could turn around and challenge California’s OC ban.

        But I’d be shocked if the OC ban were overturned.

        They cynic in me can see the exact same judges making a ruling that says that there’s no right to OC by itself, and that there may be a CC right, but that’s not what /this/ ruling is about.

        1. They dodged the issue for now. If November goes poorly for us, you can bet your ass when OC comes up they’ll figure out a reason that can be restricted.

      3. Let me reiterate my comment and restate a few things, in light of reading part of the dissent.

        The side-stepping of OC was proper, as that question was not asked in the suit.

        However, the answer to the question of concealed carry must be considered in the context of California’s ban on OC. Heller and McDonald both say that a State can regulate the manner of carry — IOW, that CC or OC can be restricted as long as the other is relatively unrestricted — but cannot ban carry altogether, even through incremental means (i.e. restricting both separately would still be unconstitutional).

        In that light, the “good cause” requirement of CA’s “may-issue” CC laws should have been struck down; as applied, the combination effectively means “no carry”, which is a clear violation of the Second Amendment.

        Thus, not directly addressing OC is fine, but not taking the complete prohibition on OC into consideration when deciding on CC is not fine. Not. At. All.

        (BTW, for all interested, Andrew Branca posted a copy of the decision here: )

  5. Well, that’s it. The end of the right to concealed carry in Alaska, Arizona, in Central, Eastern, Northern, and Southern Districts of California, and Hawaii.

    It remains to be seen now how quickly California and Hawaii remove concealed carry permits entirely, and aggressively prosecute and/or outright murder any citizen/serf caught with a concealed firearm.

    Alaska and Arizona won’t, but that’s just a function of their politics. With enough illegal immigrants, that could change, too.

    1. It’s the end of a Constitutional right but not of statutory rights enacted in all but two 9th Circuit states.

  6. Would you rather have had Jeb! as the candidate? That is why 15 of the 17 candidates were running. To have Jeb! on the ballot with Hitlery. Because Jeb! and Hitlery belong to the SAME PARTY, just different factions. The uniparty or GOPe is the reason the base has revolted. The GOPe has ruled Congress for the last 4 years yet Obama keeps getting more than what he asks for. Why? Because the GOPe approves of the fascist/corpratist system of FREE FEDERAL MONEY and open borders. The GOPe is afraid Trump MIGHT WIN and upset their route to FREE FEDERAL MONEY and cheap labor via illegals. So you got ONLY two choices. Trump or Hitlery. And if the GOPe trys to change the rulz to put Ryan or anybody else in place of Trump, BOOM! Instant election of Hitlery. Which is what the GOPe wants. What is really needed is a convention of the States to institute term limits (no more than 12 years of elected OR APPOINTED duty), no exemption from any law, change the dates of election day and the day Congress opens to eliminate “lame duck” sessions and balanced budget. Congress is so drunk on it’s power they will never change.

    1. Jeb spent $100m and all he has to show for it is his broken loyalty pledge. Every pundit prediction about Trump has fallen flat – some experts they are. He’s redefining how to run a campaign and he’s playing by a playbook that no one has seen before. He’s tapped into the anger of the American worker, the same way BHO tapped into anger in 2008. He’s about to put hillary on the ropes with tactics she’s never seen before and doesn’t know how to counter with her 1992/1996 playbook. Being a political outsider is an advantage in this election. Voters are pissed at how D.C. is/has been making life and this country worse while protecting their own jobs with pay to play campaign funding.

    2. Trump is going to get blown out by Hillary. Instant election of Hillary was assured as soon as Trump was selected.

      I hope the GOP delegates aren’t chumps, and Dump Trump at the convention.

      We are screwed either way.

      1. This. Because Trump is stupidly convinced he needs no ground game in the general.

  7. Hillary is looking at prison time, so don’t sell the clown car short yet.

    1. And Bernie just might go 3rd Party.

      This election is as predicable as a blind chimpanzee having a seizure trying to land a 747 during a class 5 hurricane.

      Where this thing will land and in what condition? Who the hell knows.

      1. “This election is as predicable as a blind chimpanzee having a seizure trying to land a 747 during a class 5 hurricane.”

        It looks like I picked the wrong week to quit sniffing glue.

    2. If you believe that an Obama-run DOJ is going to prosecute her, I have a bridge to sell you…cheap.

      She will never spend a single day in prison. Never, ever.

  8. My problem with Trump is that he’s no better than Hillary on anything BUT the 2A. His attitudes on 1A and (un)limited government are appalling.

    1. That sums up my problem with Trump, as well.

      He is not a moral man, he is not a good leader, and regardless of what he says, he does not support small government or the Constitution of the United States.

      His implication that if Congress won’t act he’ll do it alone shows he’s every bit the rule-by-executive-fiat charlatan that Obama is. Maybe even more. And everything he proposes would empower federal agencies, not reduce them.

      That they’ll be empowered to uphold slightly more conservative regulations is only a temporary reprieve; the next leftist in office will take the new power and twist it around to leftist policies again. Trump doesn’t see that because he doesn’t want to; he thinks the ‘Yuge Legacy of Donald J. Trump will stand FOREVAH!

      And THAT’s why he’s such a dangerous man to have as POTUS.

  9. Step down from the ledge… Gun rights win with or without the courts. They already win in an important court in those states covered by the 9th: the court of public opinion.

    Also, let’s face it. There is no way a Supreme Court justice wins in a senate split roughly 50/50 be the president a Dem or Rep. It’s going to be a long time that we have 8 justices even under a president Trump.

    1. That’s still better than 3-4 Clinton appointed justices. And don’t try to tell me that the GOP Senate will block her nominees for 8 years.

      1. Sure they can. I don’t see a SC nominee going through from either party in a senate this divided. I don’t see how the climate allows for it. And yes, the SC has no constitutionally required number of justices to fulfill the duties. The court has done fine with fewer justices before.

        I also didn’t think this election would be as odd as its turning out to be, either.

        1. That would be interesting if the court was allowed to contract to 7. Is there anything other than tradition to set it at 9?

          1. We have recent history of a 20th century president attempting to pack the court upward. I can assume if precedent wasn’t enough to stop FDR, it certainly won’t stand in the way of what passes as today’s presidential material. A decrease would be easier anyway since it requires zero action, which is precisely what will this congress is known for!

  10. More detail here.

    In short, it really *IS* the whole “Oh we didn’t ban all carry, we just said there’s no concealed carry” two step that ignores that there’s already an Open Carry ban.

    You can say it’s proper for them to not address OC… but it’s sure convenient that in this one case they showed restraint.

    As the majority opinion says:
    The Second Amendment may or may not protect to some degree a right of a member of the general public to carry a firearm in public. If there is such a right, it is only a right to carry a firearm openly. But Plaintiffs do not challenge California’s restrictions on open carry; they challenge only restrictions on concealed carry.

    If there is a Second Amendment right of a member of the general public to carry a firearm openly in public, and if that right is violated, the cure is to apply the Second Amendment to protect that right. The cure is not to apply the Second Amendment to protect a right that does not exist under the Amendment.”

    Wanna lay odds that if the plaintiff turns around and challenges Cali’s OC ban that these judges will just flip and say there’s no OC right?

  11. As far as the Supreme Court goes, I’d like to point out that its the fault of you dip-shits that stayed home in 2008 and 2012 and didn’t vote because you didn’t get your perfect conservative candidate that we are in the position of looking at a tie at best and a complete loss at worst.

    Congrats. You didn’t vote and still screwed yourself over and now you’ve taken the rest of us with you.

  12. Courts love to ignore plain language and they love to not do their job.

    1. I don’t think that’s right. Courts will happily consider plain language and go to all kinds of contortions to do their jobs when it suits them.

      I mean, consider: the judicial recognition of a right to gay marriage went from zero to Ogbergfell in about twelve years. Meanwhile, eight years post-Heller we still see courts tripping all over themselves to limit that holding to its specific facts, if not outright defy it.

      Basically I think we need to stop pretending that judges are anything but political appointees determined to enact their own policy preferences, regardless of process, or the law, or anything. Maybe once upon a time courts legitimately tried to wrestle with the scope of constitutional liberties, but today it’s all just will to power.

      I hate that the game is rigged, and wish it were otherwise. But if this truly is the Game Of Hacks, and you either win or you die, then I’m going to do my best to win. I’m no longer pretending that the process by which we arrive at these decisions, and the decisions themselves, are in any way legitimate. I’m no longer pretending that the judges who write them are guided by principle and reason. I’m just going to go out and get my own hacks who’ll produce my preferred policy outcomes.

      1. Yeah that’s my point too. It has nothing to do with the language, but their own preferences. I agree, I reject their decisions as they are not legitimate, and since my own are just as legitimate, I’ll follow them.

  13. I think if Trump can have some message discipline and develop a ground game he should win easily. The problem is that he keeps committing unforced errors and he hasn’t gotten his act together as far as ground game is concerned.

    Then again, there is still time. We haven’t seen what the conventions will bring (a repeat of 68? 88?) and Trump has plenty of time to hammer Clinton’s tiny lead. I think the more Trump and Hillary campaign, the better things will get over the next 5 months. There just a huge natural charisma gap that has yet to fully play out. Clinton has stayed mostly out of the public eye and has been coasting on super delegates. Once she starts screeching and coughing on a regular basis, her support will erode.

  14. “I’m hoping they do not appeal this.”

    Agreed, but what is the time limit on filing an appeal? If Trump wins and immediately appoints a new SCOTUS that is favorable to 2A (including the process time required for congress to approve), could they still be in the time window?

  15. Another thought, if looked at as strictly concealed carry (CC) I can agree in that any requirement for a licence by the state or federal govs is not 2A… requireing a permission slip is not a right, just a privilage (that can be taken away).

    However, open carry (OC) is a right (w/o permission slip) and it is those OC laws that now need to be immediately challenged in California using this ruling against them.

  16. All the legal arguments and all the attempted strategies (by the NRA, Representatives, average folk, etc..) up to this point have done little more than SLOW the degradation of our ‘privilege’ to keep and bear arms. That’s right People, this is no longer a Right. What I find so fascinating is that you People are not willing to do what is necessary to win the war. And no, I’m not referring to firing one shot if that’s what you might be thinking…..

    You see, you’re all playing the game by their rules. Why would anyone do that and expect to win?? You People believe that by begging for your rights that you’re somehow going to get them (whether it be by winning court cases or by setting some precedent via the courts). You push and hope for a national licensing system for conceal carry (yet more begging on your part to your representatives) in the foolish hope that you’ll at least be able to salvage some part your ‘privilege’. These People that you’re up against are stacking the deck against you by filling the federal courts as Obama has done, allowing mass immigration by populations that culturally vote for socialists, and by simply seizing authority by fiat (and thereby ignoring the law itself). Hoping a new person (ie: the President) will somehow save or slow this process is equally foolish and nonsensical.

    The simple fact is if you continue to play the game by their rules (through the courts, electing, etc..) you will lose. I mean come on, the right to bear arms is already a privilege that can be regulated any way those in power decide. The truly sad thing is that everyone who supports the right to protect themselves (through arms) has tried everything EXCEPT the one weapon that could win the war tomorrow without even using your arms! Do you want to know what it is??

    It’s actually rather simple. The only trick is to get enough People on board to commit to it—then levy the ultimatum and and watch the true power bring government to its knees. This would require at least 5% of the population to commit and act on it—that’s it! I know, I’ve held back the answer to get you People to think about what power you truly have—and I’ll now tell you: It’s called ‘income’. All you need to do is have at least 5% of the US population quit their jobs all at once on a specific date (with the promise that you’ll seek out the welfare system for assistance afterward—thereby placing a massive drain on the social welfare system). Do you People understand what that would do to the markets?? Do you People understand what that would do to the governmental system itself?? It would cause it to collapse. Now I’m not advocating for destroying the system here (that’s not my intention). However, you People have a super weapon at your disposal and your letting it just sitting there on the table—waiting to be used.

    Now you People can decide to keep ‘fighting the good fight’—attempting to win various court cases, electing representatives (who most don’t care about your right to bear arms) and so on. You can also continue to ‘hope’ that playing by their rules will somehow result in winning back this right—but based on projected demographic changes in the next 20 years I’d say you’re off your rocker if you think you can fight against this tidal wave (who culturally vote for socialists). The end is near People. The strategy that’s been used (by the groups such as the NRA) have done nothing to prevent this Right from being transformed into a regulated privilege—absolutely nothing! Aren’t you People tired of begging these elected People to protect your rights? Aren’t you tired of fighting battle after battle only to end up with a privilege that could disappear after the next election?? (it will if Hillary wins—The blog meister has even stated as much).

    I’ve given you People the solution to your problem (which, by the way is government itself). You have the power to stop it permanently if you want. The only question is, how badly do you actually want it?? And again, you don’t have to shoot one bullet. All you have to do is organize yourselves and levy the promise to the government and be ready to pull the trigger if your demands aren’t met (such as eliminating all 50,000+ unconstitutional federal and state laws related to firearm regulations). You People can keep following all these pointless legal battles with the hopes of determining some way to counter their moves….OR you can grow a pair and end the battle and earn your Right (you know, like American’s did in the past). Or will the future People in this country say “Patriots are like bald eagles, there aren’t any more around here”.

  17. Anyone else notice that between the 4th and the 9th we’ve got a may-issue circuit split right now? This is perfect, we just have to bide our time to get the correct case to appeal.

    1. What’s funny is the media reported that there was no circuit split on concealed carry almost as soon as this decision broke last week and quickly put that little “pet theory” to rest. Maybe it was MSNBC, but still, they can’t tell the truth to save their lives!

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