En banc Decision in Peruta -- a loss

[DanGuy48]

Thanks all...interesting.

 

[Elliotte]

IANAL, not even close, so could someone explain to me what the value is of dissenting opinions? I have taken note of them in many cases but it didn't occur to me until the above post, that they might carry any weight. I just sort of viewed it as speaking out against a perceived injustice but it sounds as if it means something more than that. What is the actual importance if the case is already decided the other way?

Take for example Justice Breyer's dissent in Heller. He created the 2A two-step that the lower courts are using to justify away 2A rights. Heller said the standard of review is a historical analysis of how the right was understood by those who voted for it (in the 2A and incorporated in the 14th Amendment). Breyer in his dissent said first see if it's part of the core of the right, then pick a standard of scrutiny.

The majority's opinion is the ruling of the court, but dissents are an attempt to convince other judges to follow your way instead. And if you can convince enough judges to follow your way instead, you can effectively nullify a majority opinion.

Of course, IANAL, but just what I've witnessed.

 

[Peaceful John]

How do you plan on getting to a destination? Public transportation? Firearms will need to be secured in checked baggage. Car? Some states claim firearms are considered concealed when in a car. Horse? good to go

It seems to me those restrictions exist because the national right to "bear" not yet does. Once (if?) open carry is determined to be the protected form of "bear", I would be quite surprised if those restrictions persist.

 

[777GSOTB]

I would gladly accept nationwide unlicensed open carry. Better than what we have now.

I suspect if that happens, states will then allow the more modern means of appropriate carry and eventually allow concealed carry without a license also. My concern at this point is that if the license requirement for open carry isn't properly challenged, we will all end up being under a license/contract to exercise a fundamental right. Not good and say hello to carry insurance down the road. Open carry outside the home should be reviewed under strict scrutiny. If there is a compelling state interest for the public's safety, the least restrictive means to accomplish that, would be to issue a certificate of competence to certify, not license, the competency of the individual. I was hoping Eric Friday would work that into his Norman v Florida case, but he didn't bite.

 

[Inigoes]

I suspect if that happens, states will then allow the more modern means of appropriate carry and eventually allow concealed carry without a license also. My concern at this point is that if the license requirement for open carry isn't properly challenged, we will all end up being under a license/contract to exercise a fundamental right. Not good and say hello to carry insurance down the road. Open carry outside the home should be reviewed under strict scrutiny. If there is a compelling state interest for the public's safety, the least restrictive means to accomplish that, would be to issue a certificate of competence to certify, not license, the competency of the individual. I was hoping Eric Friday would work that into his Norman v Florida case, but he didn't bite.

Look at voter registration as a 1A analogy.

You need to register, in order to exercise a fundamental right...

I am not saying its right or wrong, but the government induced requirements to exercise a fundamental right needs to be severely restricted.

 

[777GSOTB]

Look at voter registration as a 1A analogy.

You need to register, in order to exercise a fundamental right...

I am not saying its right or wrong, but the government induced requirements to exercise a fundamental right needs to be severely restricted.

You're right, it needs to be severely limited. But with no proper argument we get licensing that will never be defeated once its set into law. A certificate of competence would include all the typical registration requirements(Name,address,birth date), plus acknowledging whether one is competent to use a firearm. It doesn't place one under a legal nexus like that of a license/contract. The certificate should more than satisfy any state interest for the public's safety. If this point isn't argued, we get licensing. And like I said, get ready for high fees and mandatory carry insurance...That's absolute IMHO.

 

[randian]

Look at voter registration as a 1A analogy.

You need to register, in order to exercise a fundamental right...

Yes, but the purpose of voter registration is, or would be if we weren't being governed by traitors, to make sure only eligible voters vote. Non-citizens, felons, people voting in multiple precincts, and the dead shouldn't count. They don't do it in order to prevent you from voting. Unlike the situation with carry permits, I regard that as a benign purpose.

 

[esqappellate]

En banc petition filed from the en banc decision! This doesn't happen very often

 

[Gryphon]

En banc petition filed from the en banc decision!

WTH? Gotta do a quick read LOL!

Okay, admit not reading the whole opinion yet, but this is a bitch slap in the face to stop legislating from the bench. Consider the issue presented and stay out of purposefully wondering into the weeds.

 

[wolfwood]

En banc petition filed from the en banc decision!

How long does the Court have to vote on this? Has a petition ever been granted for full court en banc in the Ninth?

 

[kcbrown]

En banc petition filed from the en banc decision!

Yep. It's pretty amusing to watch the goings on here.

But there's no way the 9th Circuit will vote to re-hear the very decision it intended to achieve when it took the original en banc vote in the first place.

Remember, the 9th Circuit voted in favor of the initial en banc action for the purpose of overturning the original decision. It got its wish. There's no way in hell it will put that result in jeopardy. And with SCOTUS fractured the way it is now, there's no way SCOTUS grants cert for the purpose of overturning.

No, in the 9th Circuit, the bad guys have won. What a surprise.

 

[danb]

En banc petition filed from the en banc decision!

And the majority’s approach does not avoid any constitutional
question, but instead sets up an unnecessary constitutional
confrontation over California’s open carry laws.

In short, the majority has taken a dispute that could have
been resolved by local officials through an administrative regulation
that would be consistent with state law—–i.e., identical to how state
law functions in other California counties—and turned it into a
dispute that likely will require a federal court to strike down a state
statute—all at the expense of constitutional avoidance, federalism,
and separation of powers.

 

[esqappellate]

How long does the Court have to vote on this? Has a petition ever been granted for full court en banc in the Ninth?

Someone on this forum did the research. It's been requested 5 times since the court started doing panel en banc. Never successfully.

 

[CrazySanMan]

Someone on this forum did the research. It's been requested 5 times since the court started doing panel en banc. Never successfully.

 

[wolfwood]

Yep. It's pretty amusing to watch the goings on here.

But there's no way the 9th Circuit will vote to re-hear the very decision it intended to achieve when it took the original en banc vote in the first place.

Remember, the 9th Circuit voted in favor of the initial en banc action for the purpose of overturning the original decision. It got its wish. There's no way in hell it will put that result in jeopardy. And with SCOTUS fractured the way it is now, there's no way SCOTUS grants cert for the purpose of overturning.

No, in the 9th Circuit, the bad guys have won. What a surprise.

I've read that the a en banc hearing takes 5 times as much resources as it takes to conduct a normal published case. Imagine how much time would take to conduct a full court en banc hearing. I personally think this is a delay tactic. Chuck is holding out hoping to stall the cert petition long enough so that there is 9 justices on the Court and trump wins the nomination.

And as Esq just said its never been successful. This is not the first important case the Ninth has heard. All en banc decesion are very important.

 

[Kharn]

I've read that the a en banc hearing takes 5 times as much resources as it takes to conduct a normal published case. Imagine how much time would take to conduct a full court en banc hearing. I personally think this is a delay tactic. Chuck is holding out hoping to stall the cert petition long enough so that there is 9 justices on the Court and trump wins the nomination.

And as Esq just said its never been successful. This is not the first important case the Ninth has heard. All en banc decesion are very important.

And any judge can write a dissent from denial of rehearing.

 

[Gryphon]

Agree that the Petition for Cert is currently a waste of time, need to delay, so why not call the partial en banc panel out for their twisted, activist logic. It is a rather amusing tactic.

 

[press1280]

En banc petition filed from the en banc decision! This doesn't happen very often

Assuming the full court en banc is denied, would they maybe try SCOTUS not to actually hear the case but get the case sent back to the 9th so they actually answer plaintiff's real question and not the question they wanted to answer?

 

[press1280]

Agree that the Petition for Cert is currently a waste of time, need to delay, so why not call the partial en banc panel out for their twisted, activist logic. It is a rather amusing tactic.

It does give time in case the FL Supremes affirm the appeals court ruling (and split with Peruta) or any other case that may get decided and cause a split.

 

[esqappellate]

Assuming the full court en banc is denied, would they maybe try SCOTUS not to actually hear the case but get the case sent back to the 9th so they actually answer plaintiff's real question and not the question they wanted to answer?

They would have to grant cert and, unlike Caetano, the question is not likely to be answered per curiam as it is not in direct conflict with any passage in Heller (per curiam GVR is possible on the refusal to address open carry, but not likely, as they might feel that they would need to get into the merits). I think there are multiple reasons for doing this which have been alluded to above by others. First, it buys at least a month, maybe a lot more. Add that to the 90 days for filing cert, plus another 60 days you can get on extension requests with the SCT. That's half a year. We could have a 9th Justice by then. I don't think a cert petition has any chance whatsoever without a 9th Justice. Second, since a full en banc petition is addressed to the full court, any member of the court can write a dissent from the denial of en banc. Cue Judge O'Scannlain (and others). Judge O'Scannlain has done that before, as the new petition notes (at page 2). An O'Scannlain dissent can carry a lot of weight as he is highly respected by members of the SCT (his dissents usually carry the day in cases in which cert is granted). See, e.g., page 2 of the new petition. A more recent example is Walden v. Fiore, 134 SCT 1115 (2014), reversing unanimously a 9th Cir panel decision where O'Scannlain dissented from a denial of en banc. Finally, on the merits, the panel en banc decision is a bad joke in refusing to address the California ban on open carry; it cries out for correction. Courts do not and should not adjudicate constitutional questions in this manner. Disingenuous is too kind a word for that sort of decision. It's a good call, filing this full en banc petition. I approve It does take big ones though....