"NRA-Backed Case A Benchmark Win in 9th U.S. Circuit Court of Appeals"

[Paladin4CA]

From:
http://www.nraila.org/news-issues/news-from-nra-ila/2014/2/nra-backed-case-a-benchmark-win-in-9th-us-circuit-court-of-appeals-%281%29.aspx?s=&st=&ps=

NRA-Backed Case A Benchmark Win in 9th U.S. Circuit Court of Appeals

Posted on February 13, 2014

Peruta, et. al v.San Diego County Protects Right to Bear Arms in Public Places for Self-Defense

Fairfax, VA – The United States Court of Appeals for the 9th Circuit today ruled in favor of the right of law-abiding citizens in California to carry a firearm outside the home for self-defense. California law allows local governments to issue concealed and open carry permits, but generally prohibits the carriage of handguns in public places. The San Diego County Sheriff’s office further restricts gun permits only to law-abiding citizens who can prove “good cause,” meaning they have to show they faced a specific threat to their safety above what the general public faces.

The court ruled San Diego County’s gun regulation scheme unconstitutional. Under the ruling, law-abiding citizens in California would be allowed to carry a handgun for self-defense in public places, not just in their homes.

In addition to supporting the case financially from the beginning, the National Rifle Association filed a friend of the court brief in support of the plaintiffs.

“No one should have to wait until they are assaulted before they are allowed to exercise their fundamental right of self-defense,” said Chris W. Cox, Executive Director of the NRA’s Institute for Legislative Action. “The U.S. Supreme Court has already affirmed our Constitutional right to Keep Arms, and today, the 9th Circuit Court of Appeals affirmed the right to Bear Arms.  Our fundamental, individual Right to Keep and Bear Arms is not limited to the home,” concluded Cox.

From the Court Ruling:

Because the Second Amendment “confer(s) an individual right to keep and bear arms,” we must assess whether the California scheme deprives any individual of his constitutional rights. Heller, 554 U.S. at 595. Thus, the question is not whether the California scheme (in light of San Diego County’s policy) allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding “no.”

-NRA-
Established in 1871, the National Rifle Association is America's oldest civil rights and sportsmen's group. More than five million members strong, NRA continues to uphold the Second Amendment and advocates enforcement of existing laws against violent offenders to reduce crime. The Association remains the nation's leader in firearm education and training for law-abiding gun owners, law enforcement and the armed services. Be sure to follow the NRA on Facebook at www.facebook.com/NationalRifleAssociation and on Twitter @NRA.

[Paladin4CA]

While this is a GREAT and important win, it may get appealed to an en banc panel of the 9th Circuit, or to SCOTUS itself, so it may not be having an impact right away. IIRC, San Diego has 2 weeks to decide whether to ask for en banc review.

You can hear attorney Chuck Michel discuss this case on Cam & Company at:
http://www.nranews.com/cam/list/cam-company and click on the image of Mr. Michel in column on the left.

[Cbmarine]

@Paladin4CA, thanks for posting and the prognostication.  A small request: do a mitzvah for the hoi polloi and embed a definition of the arcane terms, en banc (full panel of judges). 

Question: if denied or declined (think those are the correct outcome terms), the case can proceed to SCOTUS? If upheld, then what? Illinois redux?

(probably more than one $5 word misused )

[Paladin4CA]

This case was decided by a 3 judge panel of the 9th Circuit. We won 2 to 1.

Usually, before appealing to SCOTUS, the loser will ask for an en banc review of the decision (and SCOTUS expects them to do that). In the 9th, an en banc panel of judges will have 11 judges + the Chief Justice. In theory, it could have every active judge in the 9th Circuit (something like 20 or 30 so judges), but I don't think that has ever been done before.

If the 9th decides to allow en banc review, the loser there can ask for cert. from SCOTUS (i.e., ask SCOTUS to take the case).

If the 9th decides NOT to allow en banc, San Diego has 90 days from then to ask for cert. from SCOTUS.

Rumors are some county sheriffs, ones that aren't ultra left wing, may liberalize issuance within the next few weeks. If SD does not request en banc, or request it, but gets denied, other sheriffs may liberalize issuance even if SD asks for cert.

Bottom line: this is good news, great opinion, but the fight isn't won yet. Despite that, some sheriffs in CA may go "virtual" Shall Issue by accepting mere "self-defense" for Good Cause.

Right now, out of 58 sheriffs, about 35 readily issue CCWs. The ones that don't are along the coast from Marin down to the border. That's where all the population is and that's where all the crime is. Things may change in the next month or two: 2 weeks for the en banc filing deadline and then a few more weeks for the 9th to decide whether to take it and for sheriffs to decide to change policies (or not). I'm hoping that we go from 35 counties readily issuing CCWs to 45+ Getting the probable last holdouts (SF, Alameda, CoCoCo, Santa Clara, LA, Orange, SD), will require this and/or other cases (Drake or the NRA's TX cases), to get a win at SCOTUS.

[Cbmarine]

Thanks. Great info and explanations. Now if you can put pressure on the AG to provide reciprocity. 

[Clarence]

This is similar to the Illinois case (7th I believe) whereby enbanc was denied and Illinois did not appeal.  Result was the Illinois legislature over the governors veto did adopt a sort of "shall issue" system that is just now going into effect.  

New Jersey has a similar case that was rejected by the third circuit and cert has been requested.

Maryland was initially overturned for their basically no issue policy but the district court overruled that and the Supreme Court declined cert.


At some point now, the Supreme Court will need to resolve this as we now basically have a score of 2 to 2.

Probably no immediate effect on Delaware as we are at least in practice pretty much shall issue, but a win would lock in the status quo. A loss might tempt some to try to make things even more difficult.  


I think the Idaho case vs the Corp of Engineers helps as well.  

 

[SteveMiller]

I was listening to Armed American Radio via podcast (show from this past Sunday), and Alan Gottleib was on the show discussing this case and what may follow.  It was really very interesting and you may want to catch it on iTunes.  He was talking about how they planned and lined up cases like dominos to set up for an opportunity to get right to carry in front of the Supreme court.  They actually like the disagreements in the various circuit courts because it creates a need for the Supreme court to settle the disputes.  This case makes it more likely that the court will take up the NJ case where the 2nd district said the states right to decide on public safety trumped right to carry.

The key to the San Diego case is that with open carry outlawed, and concealed carry shall issue (no issue) they have effectively banned the right to bear arms.  Evan Nappen's argument for the NJ case is that possession is banned with a few exceptions like home, the range and direct travel between.  If someone is caught in possession they are guilty unless they can prove they are within the exceptions.  NJ's shall issue allows possession, but since almost everyone is turned down they have also effectively if not more banned the right to bear arms which sets up a perfect case to be found unconstitutional in the Supreme court.

This opens an interesting question around what happens next in regards to Shall issue states and state reciprocally also.

So what would happen to Delaware?  Maybe nothing since Delaware does not prohibit open carry, but if the outcome were more uniform causing DE to go officially as Shall issue would we see the addition of limitations to where carry including enforcement of signage on private business?

I think that overall the progress being made in the courts is a high priority, but I wonder what the downstream impacts will be to DE.

[SturmRugerSR9]

Lower court decisions can always be appealed to the higher court, and finally the Supreme Court. It's the system we have under the US Constitution. Obama is waiting for any chance to install Left-Winger judges to stack the Supreme Court  for all foreseeable cases on gun rights issues in America. They will try to nullify the 2nd Amendment. When that's history, so will be the 1st Amendment, and America is done as a free nation.

[Clarence]

I suspect Delaware would be unaffected as well.  I only know of one case where someone was denied and it was a person who should not be carrying a gun.  ( in my opinion)

[Paladin4CA]

Brief update: Sheriff Gore, who lost this appeal, said last Friday he would not seek an en banc review of the decision by the 9th Circuit. He did not specifically say he would not try to appeal it to SCOTUS. So....

An active judge on the 9th Circuit, but who was not on the 3 judge panel involved in this decision, can call on all of the active judges to vote on whether to take Peruta en banc. A majority is required for that to happen. Odds are, if a judge does that, he will not get a majority to support him. Deadline for a judge to call for a vote is March 6th -- soon.

Odds are Gore will not try to appeal to SCOTUS either. Deadline for that is May 16th.

The fate of Hawaii also hangs in the balance with this case. They're the only other non-Shall Issue state in the 9th Circuit.

The main thing for all of us to realize is that this is NOT being appealed by the antis because they are willing to "sacrifice" both CA and HI in order to keep SCOTUS from ruling that we have a RKBA in public. You must see the amount of hate they have for us and our RKBA by what they're willing to give up to keep stop the Supreme Court from setting a "right to bear arms" precedent.

Hopefully, SCOTUS will grant cert. in the Drake case (from the 3rd Circuit (NJ)), in late April.

[SteveMiller]

If the Drake case is taken up by the SCOTUS it is almost imposssible that it wouldn't be overturned.  NJ generally bans possession outside of a few exceptions and the only way to possess is with a permit to possess which is may issue (=no issue).  So NJ is in a worse position than even the 9th circuit case which said that you can't ban open carry and concealed carry.  You have to allow some sort of carry.  In NJ you are violating the law if you are in possession of a gun anywhere except place of purchase, home and range or on route between exclusions.  You can't even stop for gas or coffee. 

[Paladin4CA]

If the Drake case is taken up by the SCOTUS it is almost imposssible that it wouldn't be overturned.

FWIW cert. was denial long ago in Drake.

I just got word that CA AG Kamala Harris was DENIED intervention in the Peruta case in the 9th Circuit. That means that there will be NO APPEALS. (Defendant Sheriff Gore of San Diego Co already told the court he would no appeal.) Already, the sheriffs of San Mateo (750k), Alameda (1.6M), Santa Clara (1.8M), and San Diego (3.2M) counties have said they'd issue CCWs with only "Good Cause" as "self-defense" once this case is finalized. That's 7.3M Californians/Americans who can now get a CCW (assuming they're otherwise qualified).

Decision is here:
http://www.scribd.com/doc/246350943/Peruta-Intervention-Denied-Order

This decision is binding upon the entire 9th Circuit and will be persuasive authority (not controlling), like Sheperd-Moore (CA7), outside of the 9th. This case has helped and now will help even more in Palmer (D.C.).

There is a slight chance of a CA9 justice calling for an en banc appeal, though....