Peruta v. County of San Diego (CCW Case)

From: http://wiki.calgunsfoundation.org/index.php/Peruta_v._County_of_San_Diego, a CCW case attempting to show 'Self Defense' is 'Good Cause' for permit issuance. Sound familiar?

See: HERE

August 11, 2010 Mandatory Settlement Conference Set for 8/11/2010 02:00 PM in Courtroom 12 before Magistrate Judge Bernard G. Skomal. Counsel shall submit confidential settlement statements to Chambers by 8/4/2010.

Mandatory Settlement Conference scheduled for this afternoon...hopefully we'll get some positive news from CA.

Why the Judge (or his superiors) in DC can't mandate something like this for Palmer escapes me...

This will be interesting. Thanks for the post.

Hopefully, the plaintiffs stick to their guns and do not change one word in their "Prayer" at the settlement conference.

A strange twist yesterday in San Diego...yesterday's "Mandatory Settlement Conference" is now scheduled for December 9th with a "Final Pretrial Conference" scheduled for 5/16/2011...


http://wiki.calgunsfoundation.org/index.php/Peruta_v._County_of_San_Diego

This is going to trial and there will be a fact-finding portion. For some reason this is not a matter of law to be decided, hence the long lead times.

The plaintiff argues over residency requirements. That may be the sticking point here -- they may have to prove his individual residency existed at the time he wanted the permit. That is a "finding" and not a matter of law.

This is why the SAF keeps it simple. I would have stipulated I was not a CA resident and then argued it doesn't matter under the Constitution. Then it would have been a matter of law with no finding required...faster.

But I am not a lawyer.

2 events on this one recently....

1) Defendents yesterday filed a Motion for Summary Judgement. They attempted a Motion for Dismissal last November and that motion was Denied. Here's to another denial...

2) The Brady's yesterday filed an Amicus for the Defendents. If you want to have an idea of how the State's arguments will go here in MD (Woollard) assuming they ever decide to argue, take a read.

Peruta Docket

A very good (albeit month old) analysis of Peruta, is here: http://www.examiner.com/la-in-los-angeles/concealed-carry-of-handguns-imminent

Good but Failing

Brady did a good job putting this together. They took a page from the SAF and did some research into history and law in many parts of the USA over the post-Heller years and used it to define one of their two primary arguments: that Heller does not extend protection to public carry.

Their primary evidence here is that the Heller Court had "ample opportunity" to say such a right existed, but chose not to. Quite the contrary -- Scalia went "out of his way" to "highlight" that many existing gun laws are "presumed valid". They also note that the Heller Court specifically cited laws against concealed carry as presumptively legal. Brady argues that the contention such restrictions are only legal in the face of an open carry allowance as being bunk. They say if this were the case, the Heller Court would have balanced the over-the-top assurances of presumptive legality of CCW restrictions with an Open Carry discussion. Good point.

But they of course cherry-picked the Heller and McDonald decisions. As a matter of fact, they then expound on a long discourse on the evils of guns, the inherent danger associated in them, and how this calls for an "interest balancing approach" to be used just for 2A. So right as they started to get some intellectual traction, they completely fall off the wagon and jump right into old pattern. Old losing patterns.

How Brady Derailed

Never mentioned is the fact that both Heller and McDonald specifically dismissed that approach. Brady spends much time separating 2A from 1A - creating a unique standard to review 2A restrictions. This new standard is called "Reasonable Regulation" and sits between rational basis and Intermediate. In other words - Rational Basis with a new name.

They are re-arguing Heller while claiming to hold it as evidence of their argument. Their argument is predicated on two points:

- Heller does not protect carrying of arms outside the home

- Even if it does, "reasonable regulation" means we can legislate the right away if we choose because 2A requires a unique "interest balancing approach" compared to other rights.

The argument that Heller did not protect public carry is their strongest argument. So strong that this is the primary topic of contention in many cases nationwide. It is the core question of our own MD case. Brady is reading tea leaves, but to some extent we all are. Who says our tea is stronger than theirs? I am ignoring some gaping holes in the Brady argument, but the point remains: this is an unanswered question and they have an argument here. Not a very good one, but an argument all the same.

But they then trash their entire thesis by re-arguing Heller. Again.

And in the process they also create a unique form of scrutiny oddly enough called the "Reasonable Regulation Test" (wonder where they got that?) that contradicts one of the main holdings of Heller and McDonald:

Municipal respondents assert that, although most state constitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we
expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, 554 U. S., at ___–___ (slip op., at 62– 63), and this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” Malloy, supra, at 10–11 (internal quotation marks omitted).

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They only argument they have is that Heller/McDonald did not define a right to public carry. Everything else is pure hogwash and has been summarily rejected by the Supreme Court. In McDonald the Court even went so far as to express frustration with the arguments at all, because it was re-litigating a decision they made.

I can see this being echoed in MD and other places. It's really the only thing they got left.

You give the Bradies too much credit. Their entire focus was concealed carry. Not on the fact that one cannot open carry a functional firearm.

Mr Peruta in response to the MTD and Brady Amicus this week filed a "Joint MOTION for Order to Adopt Stipulated Briefing Schedule", Doc 41 on the Docket.

Today, Judge Irma Gonzalez granted that motion (Doc 42) and others:

ORDER granting 41 Joint Motion for Order to Adopt Stipulated Briefing Schedule. Motion Hearing re Plaintiffs' 34[RECAP] Motion for Partial Summary Judgment and Defendants' 38[RECAP] Cross-Motion for Summary Judgment set for 11/15/2010 10:30 AM in Courtroom 01 before Judge Irma E. Gonzalez. Signed by Judge Irma E. Gonzalez on 10/6/2010. (jah) (Entered: 10/06/2010)

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Both of these new pdf's (41 & 42) are uploaded and should be available shortly on the Docket.

I didn't feel like coughing up $.08 to upload Doc 40

40 CORRECTED CERTIFICATE OF SERVICE by Brady Center to Prevent Gun Violence re 37[RECAP] Amicus Curiae Appearance, (O'Hanlon, Neil). Modified on 10/5/2010 - Edited text (jah). (Entered: 10/05/2010)

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November 15th....

Gray Peterson said:

You give the Bradies too much credit. Their entire focus was concealed carry. Not on the fact that one cannot open carry a functional firearm.

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Yea, what's the deal with that anyway? The anti-gun briefs in all of these cases seem to never mention open carry and always assume concealed carry is the only mode of carry. Do they think they can actually slip this past a court?

press1280 said:

Yea, what's the deal with that anyway? The anti-gun briefs in all of these cases seem to never mention open carry and always assume concealed carry is the only mode of carry. Do they think they can actually slip this past a court?

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That is the point missed...our 'new' resident legal sage has correctly stated that "Keep & Bear" are on the same side of the coin. The verbiage in Heller was that "Keep" was most acute in the home. Not exclusively nor is it even implied, that is what Heller was about.

The fact that they specifically stated concealed carry laws might stand is in the face of the "Bear" aspect and suggests that either Open or Concealed, pick one, is the interpretation. There was an Ohio case where the Judge basically said the same thing.

Yeah, I have on the same glasses as the rest of you, but it seems clear to me.

This is fun stuff...

krucam said:

The Brady's yesterday filed an Amicus for the Defendents. If you want to have an idea of how the State's arguments will go here in MD (Woollard) assuming they ever decide to argue, take a read.

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They are trying to re-argue Heller and McDonald. They are still in denial that they lost.

They want reasonable and interest-balancing regulations to castrate the 2nd Amendment.

ezliving said:

They are trying to re-argue Heller and McDonald. They are still in denial that they lost.

They want reasonable and interest-balancing regulations to castrate the 2nd Amendment.

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If you close your eyes, they go away.

They will not take this lying down. It flies in the face of what they believe. Clearly the courts will somehow see the error of their ways, the "cowboy state" this will surely bring, and put tight regulations on this "right"

You have NO right to LIFE without the means to protect it.

Gray Peterson said:

You give the Bradies too much credit. Their entire focus was concealed carry. Not on the fact that one cannot open carry a functional firearm.

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Perhaps. But I think the court will give deference to the argument all the same if echoed by an actual governmental party to the lawsuit. I was happy to see them spend so much effort on interest-balancing - that was already settled and is a direct attempt to re-litigate Heller. Essentially a waste of paper. It would be great for a lower court to use the same rationale. Instant appeal and the Supreme Court actually was frustrated when it again came up in McDonald. Doubt they would feel different this time.

The way I read it, the Brady focus was on concealed carry because they dismissed open carry outright. They claimed that the argument made by the plaintiff - that some form of carry is required - was erroneous. They stated that OC was not required in cases where CCW was denied. Their argument was based on two angles: that Heller held prohibitions on concealed carry were presumptively valid, but then in a wave of their hand dismissed the open carry issue as "settled" by claiming the Court could have said "one or the other" if they really meant it. Pretty weak sauce on that one.

It's obviously cherry-picking and avoids the whole footnote in Heller that said "we didn't answer the question because it wasn't asked" but hinted "we're kinda leaning that way".

This is really all they can do with carry in Heller. They can fashion an argument for or against one or the other (OC/CCW), but not both at the same time. That's the tougher fight.

Their strongest point has been the Court's unwillingness to define lines for what they suggest is a categorical right. The only line they gave was "in the home" with a fuzzy caveat of "most acute" prepended. Of the cases ruled on since Heller, that is where the line has been drawn by most courts - in the home.

So until someone overturns it, that's where they will fight. But once that is gone, little is left for them to argue. It's down to procedural issues.

They obviously see this coming, and I think that's why the "Reasonable Regulation" scrutiny standard was born. They know it's coming and want to weaken scrutiny now. Again...would like to see a lower court use it.

The "reasonable regulation test" sounds like it came a from a 2006 law review article from UCLA Law professor Adam Winkler that proposed a RKBA standard called "reasonable regulation standard."

Winkler came up with his idea from his reading of state-level RKBA cases based on state constitutional law

A link to the article at the Michigan Law Review site is here.

One overlooked issue in the voluminous literature on the Second Amendment is what standard of review should apply to gun control if the Amendment is read to protect an individual right to bear arms. This lack of attention may be due to the assumption that strict scrutiny would necessarily apply because the right would be “fundamental” or because the right is located in the Bill of Rights. In this Article, Professor Winkler challenges that assumption and considers the arguments for a contrary conclusion: that the Second Amendment’s individual right to bear arms is appropriately governed by a deferential, reasonableness review under which nearly all gun control laws would survive judicial review. Professor Winkler’s discussion is informed by the example of state constitutional law, where the individual right to bear arms is already well established. Forty-two states have constitutional provisions guaranteeing an individual right to bear arms and, tellingly, every state to consider the question applies a deferential reasonable regulation standard in arms rights cases. No state applies strict scrutiny or any other type of heightened review to gun laws. Since World War II, the state courts have authored hundreds of opinions using the reasonable regulation test to determine the constitutionality of all sorts of gun control laws. All but a fraction of these decisions uphold gun control laws as reasonable measures to protect public safety. If the federal courts follow this universal practice of the state courts and apply the reasonable regulation standard, nearly all gun control laws will survive judicial review. Moreover, as Professor Winkler argues, even if the federal courts decide to apply strict scrutiny, most weapons laws might still be upheld due to the overwhelming governmental interest in public safety. If so, then any eventual triumph of the individual-rights reading of the Second Amendment is likely to be more symbolic than substantive.

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Sound identical so that's probably where they got it. But in terms of federal/constitutional law this is a new one. There have always been "shades of gray" standards calls, but the formation of a new standard (rather than an interpretation of an existing one) would be a huge step. Especially in light of McDonald's warning against such creative lawmaking from the bench.

Brady is drinking bad Kool-Aide here. But I think some lower courts will take the same approach. In truth, they already have. Of the cases already decided post-Heller, many have used an interest-balancing approach. Some have been careful to also leave room for their decision to survive a higher standard, but some have not. That could spell even more work in the way of appeals.

K-Romulus said:

The "reasonable regulation test" sounds like it came a from a 2006 law review article from UCLA Law professor Adam Winkler that proposed a RKBA standard called "reasonable regulation standard."

Winkler came up with his idea from his reading of state-level RKBA cases based on state constitutional law

A link to the article at the Michigan Law Review site is here.

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Except Adam Winkler himself doesn't support that anymore. That was pre-Heller and pre-McDonald.

Gray Peterson said:

Except Adam Winkler himself doesn't support that anymore. That was pre-Heller and pre-McDonald.

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Which in extension implies the Brady's are living in a pre-Individual Right and Pre-Incorporated world with their Amicus...

It would be nice to wipe all this talk on levels of scrutiny from the books, particulary for funadmental/enumerated rights...I know, I know...

After the election, we should plan a dinner one night in a restaurant that will give us a private room where Patrick, Krucam and our other legal minds can basically give a laymen's lecture on all of these pertinant cases. You guys are fascinating, even if I need a law dictionary to hang with the conversations.