Peruta v. County of San Diego (CCW Case)

[fightinbluhen51]

^ I saw this yesterday but didn't read the opinion; WOAH! O’Scannlain?!? SHHHHHHHHHHHHHHHHHHHHHHEEEEEEEEEEEEEEEEEEEEEEEEEEEEEET.

This thread was started almost 6 years ago.

How long has this case been in the courts???

I think you pretty well answered your own question.

 

[kcbrown]

This decision in Teixeira might be an omen of things to come in Peruta. Note the author.

Might Peruta be an omen of things to come in Teixeira? After all, they didn't vote to take the former en banc just so they could waste their time in upholding it.

Why wouldn't the Democrat majority want to do the same thing to Teixeira?


EDIT: Your message here is a good explanation as to why this might not go en banc. I'm not sure I agree with it, since the decision here still has precedential value if not overturned en banc, no?

 

[esqappellate]

Might Peruta be an omen of things to come in Teixeira? After all, they didn't vote to take the former en banc just so they could waste their time in upholding it.

Why wouldn't the Democrat majority want to do the same thing to Teixeira?


EDIT: Your message here is a good explanation as to why this might not go en banc. I'm not sure I agree with it, since the decision here still has precedential value if not overturned en banc, no?

Sure, it is published and it is precedent. But the idea that the 2A applies to purchase (for in the home possession) is hardly revolutionary. Nor is the idea that an ordinance enacted for the purpose of banning gun shops *may* violate the 2A, *if,* on remand, the plaintiffs can prove their case. Way different procedural posture and issue than Peruta, where the panel basically held that the 2A is fully applicable outside the home and actually struck down the San Diego practice. If the full court hates the decision, they will get another shot at it if and when it comes back up after a trial on the merits. The court purported to apply 9th Cir. precedent in a very conventional, legitimate way. Hard to argue that an exceptionally important question is presented under Rule 35 FRAP.

 

[rambling_one]

This thread was started almost 6 years ago.

How long has this case been in the courts???

Such gymnastics are definitely for the young at heart.

 

[Kharn]

O'Scannlain didn't make the Peruta panel despite writing that majority as well, but Silverman (Clinton appointee, dissent from application of 2A) and Bea (W appointee, majority) did.
I'm not sure why his authorship is significant?

 

[kcbrown]

Sure, it is published and it is precedent. But the idea that the 2A applies to purchase (for in the home possession) is hardly revolutionary.

Neither is the idea that the 2A applies outside the home.

Nor is the idea that an ordinance enacted for the purpose of banning gun shops *may* violate the 2A, *if,* on remand, the plaintiffs can prove their case. Way different procedural posture and issue than Peruta, where the panel basically held that the 2A is fully applicable outside the home and actually struck down the San Diego practice.

There is that, but it's not just the holding that is precedential, it's the reasoning.

If the full court hates the decision, they will get another shot at it if and when it comes back up after a trial on the merits. The court purported to apply 9th Cir. precedent in a very conventional, legitimate way. Hard to argue that an exceptionally important question is presented under Rule 35 FRAP.

That's true, but in the meantime, additional challenges elsewhere in the circuit would have this precedent to point to (it's binding on the district courts), and other circuits would also have this precedent to point to.

By dealing with this now, the 9th Circuit would avoid all of the potential fallout from having this as precedent.

And finally, when this case comes back up on the merits, the decision here gives great insight as to how this panel will think about what is presented to them. If the overall circuit wants different thinking to prevail, it will most certainly take the case en banc for the purpose of overturning it.


Put another way, I think Peruta does indeed give substantial insight into what's likely to happen here, precisely because in Peruta, the circuit has shown what it's willing to do in order to get its way, and it's doubtful that those who oppose the right on the 9th Circuit will somehow favor protecting the ability to acquire firearms.

 

[esqappellate]

Neither is the idea that the 2A applies outside the home.


There is that, but it's not just the holding that is precedential, it's the reasoning.


That's true, but in the meantime, additional challenges elsewhere in the circuit would have this precedent to point to (it's binding on the district courts), and other circuits would also have this precedent to point to.

By dealing with this now, the 9th Circuit would avoid all of the potential fallout from having this as precedent.

And finally, when this case comes back up on the merits, the decision here gives great insight as to how this panel will think about what is presented to them. If the overall circuit wants different thinking to prevail, it will most certainly take the case en banc for the purpose of overturning it.


Put another way, I think Peruta does indeed give substantial insight into what's likely to happen here, precisely because in Peruta, the circuit has shown what it's willing to do in order to get its way, and it's doubtful that those who oppose the right on the 9th Circuit will somehow favor protecting the ability to acquire firearms.

Meh, we'll see about en banc. As to this decision, it is more than just insight, the decision is the law of the case for any future proceedings, including future appellate proceedings. And yes, it is important. It just doesn't meet the Rule 35 standards that even the 9th Circuit generally abides by.

 

[esqappellate]

O'Scannlain didn't make the Peruta panel despite writing that majority as well, but Silverman (Clinton appointee, dissent from application of 2A) and Bea (W appointee, majority) did.
I'm not sure why his authorship is significant?

I am guessing that Judge O'Scannlain has a pretty good idea how Peruta will be decided....

 

[Elliotte]

I am guessing that Judge O'Scannlain has a pretty good idea how Peruta will be decided....

Despite not being on the panel? Is this something that would be discussed among the judges of the court even if they weren't selected for the en banc panel?

 

[wolfwood]

Meh, we'll see about en banc. As to this decision, it is more than just insight, the decision is the law of the case for any future proceedings, including future appellate proceedings. And yes, it is important. It just doesn't meet the Rule 35 standards that even the 9th Circuit generally abides by.

I think it is most important for requiring strict scrutiny on complete bans in the NInth Circuit from now on. That bodes well for challenges to say CA's assault weapons ban


…if Teixeira had been given a chance to demonstrate that the Ordinance was “not merely regulatory,” but rather functioned as a total ban on all new gun retailers, “a more rigorous showing” than even intermediate scrutiny, “if not quite ‘strict scrutiny,’” would have been warranted. Ezell, 651 F.3d at 708…If on remand evidence does confirm that the Ordinance, as applied, completely bans new gun stores (rather than merely regulates their locations), something more exacting than intermediate scrutiny will be warranted. See Ezell, 651 F.3d at 708. Id at 27, 33.

 

[esqappellate]

Despite not being on the panel? Is this something that would be discussed among the judges of the court even if they weren't selected for the en banc panel?

There is nothing that bars such discussions among judges

 

[esqappellate]

I think it is most important for requiring strict scrutiny on complete bans in the NInth Circuit from now on. That bodes well for challenges to say CA's assault weapons ban


…if Teixeira had been given a chance to demonstrate that the Ordinance was “not merely regulatory,” but rather functioned as a total ban on all new gun retailers, “a more rigorous showing” than even intermediate scrutiny, “if not quite ‘strict scrutiny,’” would have been warranted. Ezell, 651 F.3d at 708…If on remand evidence does confirm that the Ordinance, as applied, completely bans new gun stores (rather than merely regulates their locations), something more exacting than intermediate scrutiny will be warranted. See Ezell, 651 F.3d at 708. Id at 27, 33.

Agreed

 

[esqappellate]

refreshing.............

 

[krucam]

refreshing.............

Who is David Cherrick?

 

[Kharn]

Nichols' protégé?

 

[krucam]

Nichols' protégé?

Can't believe the Court would even docket that crap...

 

[rlc2]

Calguns readers have been cautioned...

Can't believe the Court would even docket that crap...

There has been discussion in past at Calguns about the unsuitability, and futility of well-meant but naive citizen letters to the Court.

 

[lowimpactuser]

What if WE sent him letters in RESPONSE to his request?

 

[rlc2]

But I am impatient, too...

There has been discussion in past at Calguns about the unsuitability, and futility of well-meant but naive citizen letters to the Court.

The question is...how hard is it for the en banc panel to do their job, to make up their minds, and when has it been "too long"?

IANAL but is there a famous court decision that says "justice delayed is justice denied"? Note the reference to MLK, below.

https://en.m.wikipedia.org/wiki/Justice_delayed_is_justice_denied

I like how Gura has compared Democrat Party political obstruction of 2A civil rights of all Americans to past Democratic Party obstruction of the civil rights of blacks. I think its worth repeating same, especially in "Democrat Party ruled for generations" bastions of oppression, like DC and CA.

Not that it will matter to the oppressors...but remind the Millenials and other LIVs who are now waking up, and thinking for themselves...

 

[press1280]

The question is...how hard is it for the en banc panel to do their job, to make up their minds, and when has it been "too long"?

IANAL but is there a famous court decision that says "justice delayed is justice denied"? Note the reference to MLK, below.

https://en.m.wikipedia.org/wiki/Justice_delayed_is_justice_denied

I like how Gura has compared Democrat Party political obstruction of 2A civil rights of all Americans to past Democratic Party obstruction of the civil rights of blacks. I think its worth repeating same, especially in "Democrat Party ruled for generations" bastions of oppression, like DC and CA.

Not that it will matter to the oppressors...but remind the Millenials and other LIVs who are now waking up, and thinking for themselves...

Who knows maybe they were just about to render an opinion and Caetano made them start over again.