En banc Decision in Peruta -- a loss

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    esqappellate

    esqappellate

    President, MSI
    Feb 12, 2012
    7,408
    gprimr1 said:
    If the En Banc was vacated, wouldn't the new en banc panel have to deal with the decision vacating the en banc? Like if SCOTUS says the Peruta En Banc was wrong, you can't use that logic on the Baker En Banc.

    I suppose they could say "FU" to the Supreme Court, but would they do something that unprofessional?
    Click to expand...

    Of course. Vacating the en banc decision of the 9th Circuit simply returns the case back to the same en banc panel of the 9th Circuit for further proceedings in accordance with the SCT's decision, whatever it happens to be. It would NOT reinstate the 3 judge panel decision. The en banc panel would then have to decide what to do.
     
    esqappellate

    esqappellate

    President, MSI
    Feb 12, 2012
    7,408
    danb said:
    Maybe. To accept CA I think I have to accept that the whole CA statutory scheme was somehow invalidated, which it wasn't. Just a particular county-level policy was invalidated. Many other counties do not have the same policy. Plus, CA waited until the last possible second to participate- CA did not even file amicus briefs earlier. Clement's brief, the cases he cites, and the 3-judge denial of intervention seem to have the better of this argument.

    Intervention was not really argued or analyzed very strongly because everyone wanted this to go to en banc and eventually to the Supreme Court. The en banc opinion is basically results oriented "If we don't allow intervention, there is no party in the case, we cannot hear this case and shoot this down."

    I think SCT will look hard at the precedent that allowing this last-minute intervention sets. Maybe the 9th did the right thing allowing CA in at the last minute, but for the wrong reasons. With this group of 9 on the Supreme Court, I will not bet against them kicking this back to force the 9th to button up their reasoning for allowing CA in at the last minute.

    On the other hand, Richards (consolidated with Peruta) is still a live case. Definitely anything goes here.
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    The State's motion to intervene as a party defendant was not contested by the plaintiffs and is not challenged in the cert petition. It is simply not before the Court. QED.
     
    P

    press1280

    Ultimate Member
    Jun 11, 2010
    7,919
    WV
    danb said:
    There are conferences on 15th and 22nd as well.

    one way or another, well know in two weeks.
    Click to expand...

    I think so too but the court doesn't have anything stopping it from a holdover.
    They wrote a per curiam straight slap down in LeBlanc, which was one of the other repeat relists.

    Other than Masterpiece Cakeshop, Peruta and Binderup are the oldest or most relisted cases still alive.
     
    7

    777GSOTB

    Active Member
    Mar 23, 2014
    363
    Inigoes said:
    They might need those 2 weeks for a per curiam.
    Click to expand...

    Wouldn't that be in direct contradiction to Heller?...Scalia concluded the following from the historical evidence and it's pretty obvious that he/they felt, through that evidence, that concealed carry wasn't protected.

    " For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. "

    The high court even stated as such in this late 1800's case.

    " Robertson v Baldwin 165 U.S. 275 (1897) " .....the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;.." "

    I see, without a doubt, Cert Denied, and we'll know for sure in 2 wks.
     
    Inigoes

    Inigoes

    Head'n for the hills
    MDS Supporter
    Dec 21, 2008
    49,591
    SoMD / West PA
    777GSOTB said:
    Wouldn't that be in direct contradiction to Heller?...Scalia concluded the following from the historical evidence and it's pretty obvious that he/they felt, through that evidence, that concealed carry wasn't protected.

    " For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. "

    The high court even stated as such in this late 1800's case.

    " Robertson v Baldwin 165 U.S. 275 (1897) " .....the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;.." "

    I see, without a doubt, Cert Denied, and we'll know for sure in 2 wks.
    Click to expand...

    McDonald held that states can regulate the right, not ban it.

    Peruta is not purely about CC, the en banc court went there on its own, well beyond the question being asked. It is about "good and substantial" reasons required to exercise the right. Is "self defense" a good and substantial reason to exercise the right?
     
    Last edited:
    G

    GlocksAndPatriots

    Banned
    BANNED!!!
    Aug 29, 2016
    763
    777GSOTB said:
    Wouldn't that be in direct contradiction to Heller?...Scalia concluded the following from the historical evidence and it's pretty obvious that he/they felt, through that evidence, that concealed carry wasn't protected.

    " For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. "

    The high court even stated as such in this late 1800's case.

    " Robertson v Baldwin 165 U.S. 275 (1897) " .....the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;.." "

    I see, without a doubt, Cert Denied, and we'll know for sure in 2 wks.
    Click to expand...

    But all of the 19th century decisions were about concealed carry when open carry was allowed. The way the 9th Circuit en banc panel framed the question was intellectually dishonest, as open carry is statutorily prohibited there.
     
    M

    Maestro Pistolero

    Active Member
    Mar 20, 2012
    876
    The only example I recall from Heller where a concealed carry ban was upheld was the Georgia case where open carry was also banned. I don't to see how the court, should it finally takes up the issue, can deny states the modern, primary choice to satisfy the right to carry with licensed concealed carry. Would the court force those states to also allow indiscreet, open carry? I doubt it.

    The left often talks about the constitutional as a living, breathing document whenever they want to circumvent it's clear limitations. Here's a chance to uphold the primary principle of the 2a, yet apply it to the law in the least disruptive way. That is, by respecting the choice of the CA legislature to satisfy the right with licensed concealed carry, and force sheriffs and other licensing authorities to apply the law in a way that doesn't destroy the right. And establish, once and for all, that since self-defense is at the core of the right, a desire to defense ones life is all the reason that's necessary for non-disqualified individuals to carry.
     
    P

    press1280

    Ultimate Member
    Jun 11, 2010
    7,919
    WV
    Maestro Pistolero said:
    The only example I recall from Heller where a concealed carry ban was upheld was the Georgia case where open carry was also banned. I don't to see how the court, should it finally takes up the issue, can deny states the modern, primary choice to satisfy the right to carry with licensed concealed carry. Would the court force those states to also allow indiscreet, open carry? I doubt it.

    The left often talks about the constitutional as a living, breathing document whenever they want to circumvent it's clear limitations. Here's a chance to uphold the primary principle of the 2a, yet apply it to the law in the least disruptive way. That is, by respecting the choice of the CA legislature to satisfy the right with licensed concealed carry, and force sheriffs and other licensing authorities to apply the law in a way that doesn't destroy the right. And establish, once and for all, that since self-defense is at the core of the right, a desire to defense ones life is all the reason that's necessary for non-disqualified individuals to carry.
    Click to expand...

    Would the leftists on the court embrace this approach, if for nothing more than to avoid nationwide open carry? I don't think so, but interesting indeed, and a per curiam would require at least one of them in the majority.
     
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