Winning in Court

We’ve had some pretty significant court wins lately, and I’m hoping it’s just a preview of things to come. The latest is a ruling that there’s a constitutional right to carry openly. This is probably all fallout from the Kennedy retirement. Lower court judges don’t really like to be overturned, and the change is also a signal to supporters if they buck Circuit precedent and rule against the state in a gun rights case, they might get some help from the top. No one wants to stick their neck out.

None of the judges involved here are Trump judges yet. The panel in the magazine case was appointed by George W. Bush and Bill Clinton, with the judge appointed by Nixon dissenting. That is not surprising to me. The Greatest Generation are actually gun unfriendly, for the most part. Silents less so. Boomers even less so.

In the open carry case, it was a Reagan appointee and a George W. Bush nominee ruling in favor of the plaintiff, with another George W. Bush appointee dissenting.

George W. Bush was hardly a perfect President on the gun issue, and Trump won’t be either. But if they put the right judges on the bench they can end up being good enough, and that’s all we need.

23 thoughts on “Winning in Court”

  1. Aaaaannnnnd……decision set aside until en banc appeal by the state and then…….overturned en banc.

    This is why Kavanagh is needed so badly and why I held my nose and voted Trump.

      1. fuzzyKBP: the state of CA does not have to be a party to the suit for an en banc appeal. It is the 9th CA as a larger entity, upon petition by the defendants (the state of HI) or even 9th Circuit justices (see Peruta) can trigger an en banc appeal. If that happens, look for the petition to be granted, this ruling to be vacated, and the decision to be overturned, like Peruta.

        Unlike Peruta, look for an appeal to SCOTUS, certerori granted, and en banc to be overturned.

        Jurisdictions like HI are the gifts that keep on giving us expanded gun rights. Elections have consequences. Tasty, tasty consequences.

        1. Tasty consequences indeed. Though I also think the entire court may not choose to go en banc since this will set it up to Scotus and has a high chance it would be heard.

  2. PT: absolutely correct! If the 9th does not overturn en banc I will be gobsmacked. After Peruta I figured the 9th is the circuit where 2nd Amendment cases go to die.

      1. Bingo. It takes a while to get to the SC anyway, so this is good timing.

        Maybe after another SC beat down, lower courts will start doing their jobs.

  3. It is a good point that Kennedy’s retirement may end up helping to put teeth in Heller without the case having to go to SCOTUS.

    That could be useful in itself.

  4. I would not put it past the entire Ninth Circuit letting this one go by, for fear that the new SCOTUS line-up would make it national. Also, they probably aren’t that fond of being overturned all of the time, so they might want to save themselves the effort.
    But then again, some people never learn. They could all be as delusional as Hitler in that scene from DOWNFALL.

  5. Before you get too excited, remember that Massachusetts is an open carry state.

    The good part of this is the strike against simple possession as being a crime without a permit. Anything that strikes down “good cause” or “may issue” which fly in the face of Heller and MacDonald are a good thing!

  6. I’ve always thought that the segrigationists mistake in the south was not accepting their victory and creating separate schools that were actually equal. Their constant overreach eventually led to their getting smacked down much harder than they otherwise might have been. Hopefully, the Democrats haven’t learned their lesson and we are coming up on the 2nd Amendment’s Brown v. Board of Ed moment.

    1. In fact, it was pre-Brown cases that caused Texas and South Carolina to create black law schools for 5 and 2 students respectively. Both were struck down by Brown because separate was inherently unequal even if equal.

      1. I find it very hard to believe that a law school set up for 5 students had the same course selection and quality of instruction available at the main (white) law school, set up for hundreds (thousands?) of students.

  7. The 9th Circuit has issued pro-2A opinions a number of times before. All of those decisions were penned by Judge O’Scannlain. And all were vacated and reheard en banc (Nordyke, Peruta/Richards, and Teixeira). This decision will probably go that same way, and it’s unlikely that the Kavanaugh nomination had anything to do with it.

  8. I found the following at the California Concealed Carry website:

    It has been 2234 days since this case was filed!

    It has been 2039 days since the appeal was filed!

    It has been 1888 days since the reply brief was filed!

    It has been 736 days since the last brief was filed!

    To me that suggests the Kennedy retirement had nothing to do with this case. Or am I missing/misinterpreting something? Like, that O’Scannlain only decided as he did because he thought there was a chance his decision would go to a sympathetic Supreme Court?

    1. O’Scannlain decided as he did for the facts and merits. Both his Peruta and Young opinions are studied and factual discussions of the history of the human right to self-defense, how it has flowed through law predating 2A and how it shaped 2A.

      The bad news is he is 81.

  9. It WILL go to En Banc. It WILL be overturned. Even if Kavanaugh is confirmed to SCOTUS they still WILL NOT hear it. If Kavanaugh is not confirmed the first scenario is going to happen with 100% absolute certainty.

    And WHEN, not if, WHEN that happens having a gun outside a home in the stare of California will be illegal. BOOM! Transporting a gun outside the home will be deemed illegal. Even to a range or from a gun store as ALL gun ranges forced to shut down. ALL gun stores forced to close. TOTAL AND COMPLETE ban of ALL future gun sales due to transporting being made illegal. COMPLETE ban of ALL firearm hunting in the state.

    It sounds insane but this is California.

    1. Perhaps not. Because police in L.A., San Francisco, etc., employers, nosy neighbors and peers, and venue owners of all types of places will all too eagerly abuse open carriers to make to where nobody will want to do it, the 9th might leave this one alone. It was/is a different story with concealed carry because people can practically exercise it without having their lives ruined for it.

  10. Some speculation follows…

    Let’s say this case upholds open carry in Commiefornia, but concealed carry remains defacto illegal for the vast majority of residents in the State (and without a new Supreme Court decision that provides a larger context).

    Here’s how I think events would then proceed.

    When people begin trying to exercise their right to open carry in places like San Francisco, Los Angeles and San Diego, the police over aggressively react with violence and questionable arrests directed at the carriers. Any brush of a hem of clothing on a holstered pistol the police will claim is an illegally concealed firearm. Any carry of a long-gun will be met with arrest for disturbing the peace. And then there will be the trigger happy incidents where police gun down carriers on sight when responding to 911 calls from the panicky public. And some of those 911 calls will be deliberate attempts at swatting by the Left and by the anti-gun movement.

    1. West Virginia some years back had a similar situation. Their Supreme Court struck the state’s concealed weapon law because of equal protection issues. The leftists started carrying openly in protest; the Legislature passed a shall issue law. I suspect most police will behave like they did before 1967, when open carry was lawful. Vigilantly but not criminally. Remember the left doesn’t like the police shooting people, especially black people.

    2. Agreed, the anti gun movement might not mind this one so much because they’ll still be able to be just as hateful as always if not maybe more so, and totally concur about CA police being basically evil. Which is why maybe they’ll let this one stand. If there’s one thing the left likes it’s the ability to ostracize and demonize gun owners. This doesn’t take that away from them and if anything gives them more opportunity to do so.

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