En banc Decision in Peruta -- a loss

[fightinbluhen51]

The argument needs to be made that individuals bearing arms augments the professionals when it comes to public safety.

This argument also supports the liberal fallacy of keeping guns out of the bad guys hands.

The problem is, those arguments weren't introduced at district, so how are you going to get them in at this stage of the process??

 

[jcutonilli]

I'm not a lawyer, but in a case like this, my reasoning would be as follows:

1. The State claims that they can and should have may-issue laws on public safety grounds.

2. "May-issue" is, in the jurisdiction in question, "won't issue". Cite statistics and examples.

3. 2A has the words "keep and bear". Not "own" or "possess". Clear implication that there is a right to carry that extends outside the home.

4. "Shall issue" policies are no longer a social experiment. 40 states have them, or have eliminated carry permits entirely. The results are demonstrable and consistent - no change in the murder rate, 20% cut in other violent crimes.

5. Any constraint on an enumerated right must have not only a claimed public safety goal, but a clear positive effect. (This is where level of scrutiny comes into play)

6. The State's policy has a clear negative effect on public safety, and is a constraint on an enumerated civil right. It is therefore unlawful.

The problem with Peruta is that they never really addressed the historical prohibition on concealed carry. The en banc court used this historical prohibition to limit the right. Heller indicated that you need to conduct a historical analysis. You need to provide why the people themselves need to provide public safety from a historical perspective.

 

[Inigoes]

The problem is, those arguments weren't introduced at district, so how are you going to get them in at this stage of the process??

The argument was introduced previously and not by our side, the state does not want to share the "public safety", it wants to maintain a "monopoly".

Bringing an anti trust lawsuit now, would be a new argument

 

[fightinbluhen51]

The argument was introduced previously and not by our side, the state does not want to share the "public safety", it wants to maintain a "monopoly".

Bringing an anti trust lawsuit now, would be a new argument

Devious.

I like it.

 

[GlocksAndPatriots]

but that's exactly what the 4CA did in Kolbe.

Exactly my point.

 

[GlocksAndPatriots]

I'm not a lawyer, but in a case like this, my reasoning would be as follows:

1. The State claims that they can and should have may-issue laws on public safety grounds.

2. "May-issue" is, in the jurisdiction in question, "won't issue". Cite statistics and examples.

3. 2A has the words "keep and bear". Not "own" or "possess". Clear implication that there is a right to carry that extends outside the home.

4. "Shall issue" policies are no longer a social experiment. 40 states have them, or have eliminated carry permits entirely. The results are demonstrable and consistent - no change in the murder rate, 20% cut in other violent crimes.

5. Any constraint on an enumerated right must have not only a claimed public safety goal, but a clear positive effect. (This is where level of scrutiny comes into play)

6. The State's policy has a clear negative effect on public safety, and is a constraint on an enumerated civil right. It is therefore unlawful.

I don't disagree with your reasoning, but the problem with that is it implies that the state can ban carry IF the statistics point its way. I don't agree with that. There is a difference between regulating a right (requiring permits, training, etc.) and eviscerating it.

 

[Mike OTDP]

I think if we leave the discussion of public safety to the State, we lose the case. We have got to show that the entire "ban for public safety" argument is entirely false. Which it is - this is no longer the social experiment of Florida in 1986, it's now a matter of proven fact.

Now, I'd also make the historical argument - carry permits didn't exist until after the Civil War, and have their roots in Jim Crow laws.

 

[CrazySanMan]

Second Amendment case Peruta vs. California may be heading to Supreme Court
http://www.foxnews.com/us/2017/05/15/second-amendment-case-peruta-vs-california-may-be-heading-to-supreme-court.html

“I suspect they’re going to grant it,” said John Eastman, former law dean at Chapman University and the director of the Center for Constitutional Jurisprudence.

Eastman told Fox News, “it’s percolating all across the country.”

He also feels the justices may have put it off while waiting for a full complement on the court, which they got when Neil Gorsuch was confirmed last month. Gorsuch, in fact, may be the justice to tip the opinion in one direction or the other, as previous Second Amendment cases were determined in a 5-4 ruling.

According to Eugene Volokh, professor of law at University of California at Los Angeles, this case is primed for the Supreme Court, as it deals with a basic constitutional right and “the lower courts are split on the issue.”

It would be a good time for the highest court to step in and settle the controversy. He also feels that while no one is sure how Gorsuch will vote, there is a “sense that he’s sympathetic to a broader view” of the Second Amendment.

 

[danb]

Every time Fox or SCOTUSblog says Peruta "may be" headed to the Supreme Court I consider it a jinx. It's a contrary indicator, like the Sports Illustrated cover jinx.

 

[Mike OTDP]

Personally, I'd rather they held off until we get a replacement for Kennedy at least, or one of the hard-core liberal Justices. Better to wait and win than rush things and lose.

 

[ironpony]

I'm having a difficult time imagining the consequences of another loss here ...

 

[GlocksAndPatriots]

Personally, I'd rather they held off until we get a replacement for Kennedy at least, or one of the hard-core liberal Justices. Better to wait and win than rush things and lose.

While I detest Kennedy, I don't see him as a problem with 2nd Amendment cases. In general, he's not overly deferential to the state, which explains his inventing law to prohibit the death penalty and bans on gay marriage.

 

[GlocksAndPatriots]

I'm having a difficult time imagining the consequences of another loss here ...

Not much. The lower court decisions are basically universally negative.

 

[ironpony]

Not much. The lower court decisions are basically universally negative.

Haha, good point, I guess we are already there.

 

[kcbrown]

The problem with Peruta is that they never really addressed the historical prohibition on concealed carry. The en banc court used this historical prohibition to limit the right. Heller indicated that you need to conduct a historical analysis. You need to provide why the people themselves need to provide public safety from a historical perspective.

Answer me this: why wasn't Heller lost on public safety grounds? The government did raise that as a reason for the laws (see petitioners' brief: https://www.nraila.org/heller/primaries/07-290_PetitionerFenty.pdf) and, as far as I know, our side didn't argue the public safety angle in that case in the manner you're suggesting we should here. And yet, the Court appears to not have addressed those claims at all.

If public safety were such an overriding concern that it can swallow the exercise of a right, then Heller should have been lost (or at the very least, the prohibitions it concerned upheld) on that basis. It wasn't. Why not?

 

[GlocksAndPatriots]

Answer me this: why wasn't Heller lost on public safety grounds? The government did raise that as a reason for the laws (see petitioners' brief: https://www.nraila.org/heller/primaries/07-290_PetitionerFenty.pdf) and, as far as I know, our side didn't argue the public safety angle in that case in the manner you're suggesting we should here. And yet, the Court appears to not have addressed those claims at all.

If public safety were such an overriding concern that it can swallow the exercise of a right, then Heller should have been lost (or at the very least, the prohibitions it concerned upheld) on that basis. It wasn't. Why not?

Exactly. If public safety can swallow the "bear" aspect, why not the "keep" as well? The fact is, the purpose of the 2nd Amendment was to protect arms IN SPITE of the fact that they're dangerous. If merely stating that they're dangerous is all the state has to do to dissolve the right, then it's not a right at all.

 

[jcutonilli]

Answer me this: why wasn't Heller lost on public safety grounds? The government did raise that as a reason for the laws (see petitioners' brief: https://www.nraila.org/heller/primaries/07-290_PetitionerFenty.pdf) and, as far as I know, our side didn't argue the public safety angle in that case in the manner you're suggesting we should here. And yet, the Court appears to not have addressed those claims at all.

If public safety were such an overriding concern that it can swallow the exercise of a right, then Heller should have been lost (or at the very least, the prohibitions it concerned upheld) on that basis. It wasn't. Why not?

The answer is that Scalia was able to convince 4 other Justices to not say that. Related to that is that the 3 judge panel in the DC Circuit did not say that and that the rest of the DC Circuit did not take the issue up en banc.

The DC Circuit was the first federal circuit to invalidate a gun control law according to the petitioner's brief. When a federal circuit invalidates a law SCOTUS will likely review it.

Both the Appeals Court and the District Court decided the case as an individual vs collective determination. The public safety angle was not really presented in either of the lower courts opinions. Even the SCOTUS opinions were primarily about the individual vs collective determination.

Once the individual vs collective determination is made, the courts need some other method for upholding the laws. Roberts tax justification of Obamacare is an example of the courts trying to uphold the law at any cost. The courts are now using public safety as the Roberts tax justification of Obamacare. The public safety argument provides a rationale that a majority of the Appeals Court can accept. A different argument is needed to defeat the public safety argument.

 

[kcbrown]

Once the individual vs collective determination is made, the courts need some other method for upholding the laws. Roberts tax justification of Obamacare is an example of the courts trying to uphold the law at any cost. The courts are now using public safety as the Roberts tax justification of Obamacare. The public safety argument provides a rationale that a majority of the Appeals Court can accept. A different argument is needed to defeat the public safety argument.

I'm sorry, but if the courts insist that "public safety" automatically trumps rights such that the government merely needs to claim that the law serves that purpose without having to even prove it (see, e.g., Friedman v Highland Park), then we have no rights, and that's that. Instead, all we have are privileges that we plebs are allowed to exercise when the government wants to believe that it's "safe" for us to do so, something the government will never believe when it comes to arms that make it possible for the citizenry to forcefully resist the government if/when the government should decide the citizenry serves it and not vice versa.

That means the courts have turned the entire purpose of the country on its ear, and we no longer live in a Constitutional republic where the protection of liberty, and most especially essential liberties (a.k.a. rights), is the primary duty of the government (so much so that the rights themselves are explicitly enumerated in the very document which forms the basis of the country in the first place).

The proper response to that isn't to continue to ask the courts to let us exercise what is rightfully already ours. It's to alter the construction of the government to remove the government's ability to be the final arbiter of the question in the first place, to place a direct check by those most invested in their liberties against the judiciary's choices.

 

[kcbrown]

Both the Appeals Court and the District Court decided the case as an individual vs collective determination. The public safety angle was not really presented in either of the lower courts opinions. Even the SCOTUS opinions were primarily about the individual vs collective determination.

But the public safety angle was presented in the petitioner's brief. SCOTUS may not have opined explicitly about the public safety angle, and that angle might not have been present in the lower court opinions, but it was nevertheless there.

Why was the public safety angle insufficient to override the right even if the right is an individual one in Heller while it is sufficient to override the right elsewhere? That quite clearly shows that the lower courts are applying a double standard or, at least, a standard that differs from that used by SCOTUS to determine Heller.

If the lower courts are insistent upon using a different standard than that of SCOTUS, why should we play along when SCOTUS clearly didn't?


Finally, even if we approached the problem in the way you suggest, why in the world should we believe it will work when the courts are, as regards the 2nd Amendment, so deferential to the government that they don't even demand that the government provide supporting evidence? Why should we believe that the courts will regard our evidence as having any greater legitimacy than the government's claims given the "standard of evidence" (i.e., none, as long as the claim is uttered by the government) that the courts have generally been using?

That's not to say that it's not worth trying. Nothing else has worked to date, so it's hard to see how it would hurt. But that's a very different thing from actually expecting it to work.

 

[Not_an_outlaw]

Public safety is an important government interest (see Kolbe for references). The question is who actually provides public safety. Courts have ruled that these police power interests are owed to the public at large, not to any specific individual. (Warren V DC 444 A. 2d 1, 1981, Fried v Archer 775 A. 2d 430, 2001, Castle Rock v Gonzales 545 US 748, 2005, DeShaney V Winnebago County 489 US 189, 1989)

See Stevens dissent in Heller, 544 US 642, regarding the collective component of the individual right for other rights. Public safety is a natural extension of this.

At the time of the founding of the constitution, an organized police force did not exist. (Breyer dissent in Heller 544 US 716)

In colonial times the king often sent the standing army to enforce the laws of the time. This led to clashes between the citizens and the standing army. The Boston Massacre in 1770 is an example of these clashes and is considered a landmark event of the American Revolution.

Instead of having professional armies to protect us, we wanted the people themselves

With the establishment of professional police departments, congress formally restricted the army’s role in providing public safety. See Posse Comitatus Act (18 USC 1385). The establishment of a professional police force has not prevented clashes with the public. The most recent example is in April of 2015 with the death of Freddie Gray, while in police custody. The Justice Dept has found that Baltimore Police violate peoples rights and the police department is under a consent decree by the federal government because of this. The fears of our founding father are coming true (Heller holding 1b)

The government’s public safety interests are so strong that they can compel people to act on its behalf. The draft is an example of the federal government compelling people to provide for its generalized public safety interests. The state has methods to fine people if they do not help provide for this generalized public safety interests. What is ironic about these restrictions is that it actively prevents the public (collective component of the individual) from providing its own public safety using the firearms that the state feels necessary to provide public safety. (Heller holding 3)

Is that enough or do you want more?

Thanks. That helps a bit, but still not seeing it. It looks like it's being hashed out now.