En banc Decision in Peruta -- a loss

[777GSOTB]

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.

How did the 9th Circus frame " the question "?

Also, Peruta did nothing more than attempt to get a concealed carry license. With that alone, the case fails in the ability to extend their argument beyond one outside of a concealed carry license. Open carry has no place in this case...Sure, California banned open carry also and that's the statute that's unconstitutional. It was never challenged and it can't belatedly be challenged after seeking a concealed carry license.

 

[777GSOTB]

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.

This is my one concern with this case...If they take this route, the right is no longer a right, but a preconditioned privilege.

 

[777GSOTB]

The CasePage on Scotusblog is pretty straight forward:


Quote:
Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.


http://www.scotusblog.com/case-files/cases/peruta-v-california/

That's just some creative wording as " including " has no place in the question. They sought only to conceal carry a firearm with a license...So the " manner " of carry outside the home, was to conceal carry only. Open carry has no place to be mentioned in the question since they never sought to do that.

 

[Inigoes]

That's just some creative wording as " including " has no place in the question. They sought only to conceal carry a firearm with a license...So the " manner " of carry outside the home, was to conceal carry only. Open carry has no place to be mentioned in the question since they never sought to do that.

Technicality, in the weeds of details you are correct.

Looking at your arguments you do not bring up a path to "outside the home" or "bear" which is the part the courts have not opined on this far. Caetano was a good start, but dealt with less than lethal outside the home.

Peruta is the case before us now, which deals with "bear" or "outside the home".

The courts will not swing the door wide open and roll back law just because.

Edit: Also take note that Peruta is not about changing CA law, only forcing Sherrifs to accept self defense as a good and substantial reason.

 

[jcutonilli]

That's just some creative wording as " including " has no place in the question. They sought only to conceal carry a firearm with a license...So the " manner " of carry outside the home, was to conceal carry only. Open carry has no place to be mentioned in the question since they never sought to do that.

Peruta's position is that some manner of carry needs to be allowed. Since open carry is banned by the legislature the only manner left is concealed carry. Including "including" is an important part of the argument they made.

While the 9th circuit decided the case based on historical precedent, SCOTUS may decide to change it's mind on the issue and decide that it is ok when they ban open carry. It is not likely because Peruta did not address the historical precedent.

 

[Kharn]

The CasePage on Scotusblog is pretty straight forward:



http://www.scotusblog.com/case-files/cases/peruta-v-california/

That is the question presented in the petitioner's opening brief.

 

[777GSOTB]

Peruta's position is that some manner of carry needs to be allowed. Since open carry is banned by the legislature the only manner left is concealed carry. Including "including" is an important part of the argument they made.

The problem with Peruta's case is, the manner he sought to carry a firearm was only to conceal carry with a license. There's nothing else to include under their argument....Too little, too late to include the prohibition on open carry.

While the 9th circuit decided the case based on historical precedent, SCOTUS may decide to change it's mind on the issue and decide that it is ok when they ban open carry. It is not likely because Peruta did not address the historical precedent.

You're right, they could change their mind, but I don't see why they would. It's quite clear that one mode of carry is protected and it just doesn't seem constitutionally allowed that, that mode can be prohibited if the unprotected licensed mode of carry is the one allowed...That would still void the protected mode of carry on top of adding a precondition requirement along with the license tax fee.

 

[press1280]

This is my one concern with this case...If they take this route, the right is no longer a right, but a preconditioned privilege.

The licensing aspect is a totally different matter which I see as not winning at this point in time. That's why it's better to be left for another day so no bad precedent is created.

 

[jcutonilli]

The problem with Peruta's case is, the manner he sought to carry a firearm was only to conceal carry with a license. There's nothing else to include under their argument....Too little, too late to include the prohibition on open carry.

You're right, they could change their mind, but I don't see why they would. It's quite clear that one mode of carry is protected and it just doesn't seem constitutionally allowed that, that mode can be prohibited if the unprotected licensed mode of carry is the one allowed...That would still void the protected mode of carry on top of adding a precondition requirement along with the license tax fee.

The problem with Peruta's case is the failure to address the historical precedent. They thought they could get away without addressing the issue because the legislature chose concealed carry over open carry.

Your confused over concealed carry because you fail to understand Caetano. While you are correct about the historical precedents, you can't just stick your head in the sand and say that what was what will always be. Society has changed and the CA legislature has determined exactly the opposite of the historical precedent. They still meet the intent of the historical precedent because the criminality is still prohibited. The precondition and license fee were not challenged by Peruta.

 

[GlocksAndPatriots]

The licensing aspect is a totally different matter which I see as not winning at this point in time. That's why it's better to be left for another day so no bad precedent is created.

I don't think that will ever be a winning argument. The 2nd Amendment should be treated like all other Constitutional rights. The government can require reasonable permits and other procedures before you are allowed to stage a mass protest, as an example.

 

[777GSOTB]

The licensing aspect is a totally different matter which I see as not winning at this point in time. That's why it's better to be left for another day so no bad precedent is created.

Once the court green lights the license aspect, which they will if they take this case, it will be set in concrete FOREVER. Not sure how you guys continue to think a RIGHT can be licensed??..The least restrictive means would be to issue a certificate of competence. Sound mind and firearm handling is all a license verifies...but with a nexus to all sorts of legislative additions...Like mandatory carry insurance. A certificate of competence verifies/certifies the same stuff but without the nexus to future legislation. Norman would be the better case for them to take, as no license was a part of their argument.

 

[press1280]

Once the court green lights the license aspect, which they will if they take this case, it will be set in concrete FOREVER. Not sure how you guys continue to think a RIGHT can be licensed??..The least restrictive means would be to issue a certificate of competence. Sound mind and firearm handling is all a license verifies...but with a nexus to all sorts of legislative additions...Like mandatory carry insurance. A certificate of competence verifies/certifies the same stuff but without the nexus to future legislation. Norman would be the better case for them to take, as no license was a part of their argument.

I'm not saying I agree with licensing, but we can't get courts to even acknowledge the right in any meaningful way, so pushing simple licensing right now would be a bridge too far.
In the immediate cases you have Peruta, which isn't challenging a license requirement, only one aspect of the licensing.
In Norman you have a total ban of open carry. You can't challenge a licensing requirement when one doesn't currently exist.

 

[GlocksAndPatriots]

Once the court green lights the license aspect, which they will if they take this case, it will be set in concrete FOREVER. Not sure how you guys continue to think a RIGHT can be licensed??..The least restrictive means would be to issue a certificate of competence. Sound mind and firearm handling is all a license verifies...but with a nexus to all sorts of legislative additions...Like mandatory carry insurance. A certificate of competence verifies/certifies the same stuff but without the nexus to future legislation. Norman would be the better case for them to take, as no license was a part of their argument.

Not true. If the Court reverses Peruta, it'll only be saying that "IF a state requires a license to carry a concealed firearm, it can't require good cause." It won't be expressing any opinion at all on whether it can require a license in the first place.

 

[777GSOTB]

I'm not saying I agree with licensing, but we can't get courts to even acknowledge the right in any meaningful way, so pushing simple licensing right now would be a bridge too far.
In the immediate cases you have Peruta, which isn't challenging a license requirement, only one aspect of the licensing.
In Norman you have a total ban of open carry. You can't challenge a licensing requirement when one doesn't currently exist.

The lower court decisions are meaningless for all intents and purposes on the 2nd Amendment...The SCOTUS is the only relief that will give our side do justice throughout the country, the way it should be...Unless Kennedy goes darkside on us. There hasn't been a single outside the home carry case that had an actual damaged party...Except Caetano. If I remember correctly, licensing was brought up in oral arguments in Norman. Norman's argument is that since Florida jurisprudence has concluded that privileges can be licensed such as with concealed carry, a privilege, that the right to open carry without a license is the protected right that they can't infringe upon or license...Could be off a little there, but I know it was brought up in oral arguments.

Norman v Florida
From oral arguments:

WHAT THEY HAVE DONE HERE,
YOUR HONOR, THEY HAVE TAKEN IT A
STEP BEYOND JUST REGULATING
MANNER OF BEARING ARMS.
THEY ACTUALLY DENIED THE RIGHT
OF TO BEAR ARMS UNTIL THE PERSON
SEEKS TO OBTAIN GOVERNMENT
PERMISSION. THIS COURT WOULD NEVER STAND OF
IDEA OF TRAINING CLASS, A FEE,
AND A 90 OR MAYBE EVEN 180-DAY
WAIT IN ORDER FOR A PERSON TO
GET A LICENSE TO CARRY A CAMERA
AND BE A PHOTOJOURNALIST.
THIS COURT WOULD NOT STAND FOR
THAT OF TYPE OF RESTRICTION ON
FIRST AMENDMENT OR PRIOR
RESTRAINT OR ANTICIPATORY
DISARMAMENT.

YOUR HONOR, IT DEPENDS
WHETHER THERE IS A METHOD OF
EXERCISING THE RIGHT AS
CONSTITUTIONAL RIGHT RATHER THAN
A LICENSED PRIVILEGE.
TO GIVE AN EXAMPLE WHAT YOU'RE
DISCUSSING WOULD BE MISSISSIPPI.
MISSISSIPPI HAS CONSTITUTIONAL
OPEN CARRY, SO NO PERMIT
REQUIRED.

BUT AT THE END OF THE DAY THEY HAVE A
CONSTITUTIONAL RIGHT WHERE THEY
DO NOT HAVE TO SEEK GOVERNMENT
PERMISSION AHEAD OF TIME, AS
LONG AS THEY'RE A LAW-ABIDING
CITIZEN THEY'RE ALLOWED TO CARRY A FIREARM.

 

[777GSOTB]

Not true. If the Court reverses Peruta, it'll only be saying that "IF a state requires a license to carry a concealed firearm, it can't require good cause." It won't be expressing any opinion at all on whether it can require a license in the first place.

Ok, you're right...But the license only attaches to concealed carry, not open carry, which is not protected under the 2nd Amendment and if Scalia and company meant what they said in Heller, they're not gonna take this case. That's the problem with licensing. If something can be licensed, ANYTHING goes except discrimination.

District of Columbia v. Heller, 554 U.S. 570, (2008)

" 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. "

 

[MDFF2008]

But the key may be in that May-Issue can be discriminatory.

Consider 2 people, both law abiding citizens with no record, but one is a well dressed white man, the other, a urban dressed guy that many would call a thug. Both are perfectly law abiding citizens who are seeking a permit to carry for lawful purposes, but one gets the permit and one doesn't.

In that sense, my realistic hope is that the Supreme Court says "Licensing is ok, but only using objective criteria."

 

[777GSOTB]

But the key may be in that May-Issue can be discriminatory.

Consider 2 people, both law abiding citizens with no record, but one is a well dressed white man, the other, a urban dressed guy that many would call a thug. Both are perfectly law abiding citizens who are seeking a permit to carry for lawful purposes, but one gets the permit and one doesn't.

In that sense, my realistic hope is that the Supreme Court says "Licensing is ok, but only using objective criteria."

The supreme court has already said concealed carry can be regulated..ie, licensed. There's no need for them to take this case, and they won't.

 

[press1280]

The lower court decisions are meaningless for all intents and purposes on the 2nd Amendment...The SCOTUS is the only relief that will give our side do justice throughout the country, the way it should be...Unless Kennedy goes darkside on us. There hasn't been a single outside the home carry case that had an actual damaged party...Except Caetano. If I remember correctly, licensing was brought up in oral arguments in Norman. Norman's argument is that since Florida jurisprudence has concluded that privileges can be licensed such as with concealed carry, a privilege, that the right to open carry without a license is the protected right that they can't infringe upon or license...Could be off a little there, but I know it was brought up in oral arguments.

Norman v Florida
From oral arguments:

WHAT THEY HAVE DONE HERE,
YOUR HONOR, THEY HAVE TAKEN IT A
STEP BEYOND JUST REGULATING
MANNER OF BEARING ARMS.
THEY ACTUALLY DENIED THE RIGHT
OF TO BEAR ARMS UNTIL THE PERSON
SEEKS TO OBTAIN GOVERNMENT
PERMISSION. THIS COURT WOULD NEVER STAND OF
IDEA OF TRAINING CLASS, A FEE,
AND A 90 OR MAYBE EVEN 180-DAY
WAIT IN ORDER FOR A PERSON TO
GET A LICENSE TO CARRY A CAMERA
AND BE A PHOTOJOURNALIST.
THIS COURT WOULD NOT STAND FOR
THAT OF TYPE OF RESTRICTION ON
FIRST AMENDMENT OR PRIOR
RESTRAINT OR ANTICIPATORY
DISARMAMENT.

YOUR HONOR, IT DEPENDS
WHETHER THERE IS A METHOD OF
EXERCISING THE RIGHT AS
CONSTITUTIONAL RIGHT RATHER THAN
A LICENSED PRIVILEGE.
TO GIVE AN EXAMPLE WHAT YOU'RE
DISCUSSING WOULD BE MISSISSIPPI.
MISSISSIPPI HAS CONSTITUTIONAL
OPEN CARRY, SO NO PERMIT
REQUIRED.

BUT AT THE END OF THE DAY THEY HAVE A
CONSTITUTIONAL RIGHT WHERE THEY
DO NOT HAVE TO SEEK GOVERNMENT
PERMISSION AHEAD OF TIME, AS
LONG AS THEY'RE A LAW-ABIDING
CITIZEN THEY'RE ALLOWED TO CARRY A FIREARM.

How would Norman even have standing to challenge a licensing law that doesn't exist AND the fact he does have a CCW?

 

[GlocksAndPatriots]

The supreme court has already said concealed carry can be regulated..ie, licensed. There's no need for them to take this case, and they won't.

Not if they consider the question in good faith.

 

[777GSOTB]

How would Norman even have standing to challenge a licensing law that doesn't exist AND the fact he does have a CCW?

Because Florida is saying that they can regulate the manner of carry. But they chose the manner of carry that is a privilege and not the protected right, as is the case with open carry. Because of that, one must seek government permission, ie, prior restraint, in the exercise of a right to carry firearms outside the home. Norman is saying that Florida can regulate and license concealed carry but they must also allow open carry without prior restraint, ie, the license.

In my opinion, it's the holy grail case that could ever be brought to the SCOTUS...We have a damaged party who was arrested for open carrying a firearm outside the home and the license requirement is integrated within the case through Florida's position that they can require concealed carry with a license only, above the protected right to open carry firearms.

Norman v Florida
From oral arguments:

THIS COURT HELD A RIGHT IS
LISTED IN ARTICLE ONE OF FLORIDA
CONSTITUTION AS ENUMERATED RIGHT
THAT LAW REQUIRES THE
APPLICATION OF STRICT SCRUTINY.
ARTICLE I SECTION 8 OF THE
FLORIDA CONSTITUTION IS ONE OF
THESE FUNDAMENTAL RIGHTS.
ALSO WELL-ESTABLISHED THAT HE
DEPRIVING CITIZENS OF A
SUBSTANTIVE RIGHT UNTIL THEY
SEEK AND OBTAIN GOVERNMENT
PERMISSION VIOLATES SUBSTANTIVE
DUE PROCESS.