En banc Decision in Peruta -- a loss

[motorcoachdoug]

I would like to hear what our own "Legal Eagles" members think about todays denial and dissent as well plus Kennedy did not announce his retirement from the bench as of 1033hrs

 

[press1280]

I would like to hear what our own "Legal Eagles" members think about todays denial and dissent as well plus Kennedy did not announce his retirement from the bench as of 1033hrs

This means IMO that we still are where we were before. The CCW lawsuits have been a non starter, Gorsuch has stepped up to continue in Scalia's footsteps and the rubber will meet the road when Norman is up to bat at a conference later this year.

 

[Kharn]

O'Connor told the President of her retirement via letter in July, so there is still hope.

 

[GlocksAndPatriots]

The fact that Alito did not join the dissent tells me it's more than just Kennedy.

Also, interestingly Ginsberg and Sotomayor dissent from denial in Binderup.

I've always thought Roberts is one not to be trusted on this issue as well.

 

[GlocksAndPatriots]

Thomas dissenting with Gorsuch agreeing publicly, there could have been a third vote for cert who did not want to go public.

Honestly, I can't really blame anyone for not joining a dissent from a denial. It serves no real purpose other than to let people (who may be your enemies) "know where you stand." Why show your cards early?

 

[GlocksAndPatriots]

As much as I wished for a different outcome, I think it's fair to say we all saw this coming.

The bits in the dissent that stuck out to me are:

1. II
"We should have granted certiorari in this case. The
approach taken by the en banc court is indefensible, and
the petition raises important questions that this Court
should address. I see no reason to await another case."

This suggest there are other votes to be picked up for cert but waiting for the "right" case to come along. I'm guessing that the "right" case would be a pure ban on open carry. What case would be up to bat?

2. A
"The en banc court’s decision to limit its review to
whether the Second Amendment protects the right to
concealed carry—as opposed to the more general right to
public carry—was untenable. Most fundamentally, it was
not justified by the terms of the complaint, which called
into question the State’s regulatory scheme as a whole."

Apparently not everyone on the court thought the 9th Circuits en banc decision was "untenable."

Also it looks like the court did not bite on the "State’s regulatory scheme as a whole" argument. This would seem to put a stake into any of the cases that are making their way through the courts complaining about concealed carry restrictions when open carry is banned. I fear for Wrenn and Grace.

Well, we know definitively that 4 members of the court don't believe the 2nd Amendment protects anything at all, and don't play by the rules, so to them, anything that limits the right would be tenable.

 

[777GSOTB]

This means IMO that we still are where we were before. The CCW lawsuits have been a non starter, Gorsuch has stepped up to continue in Scalia's footsteps and the rubber will meet the road when Norman is up to bat at a conference later this year.

You're absolutely right. This is it. And I see a John Force burnout with this one...All the way to the finish line. He'll do that one on his last retirement run...lol

 

[777GSOTB]

Well, we know definitively that 4 members of the court don't believe the 2nd Amendment protects anything at all, and don't play by the rules, so to them, anything that limits the right would be tenable.

No, it's just that Thomas and Gorsuch wanted to stretch their granting powers more than the other Justices. Peruta sought nothing more than a license to carry CONCEALED. This case had NO injured party, as there is no right to carry a concealed firearm and therefore it was proper to give a cert denied to petition.

 

[ironpony]

So how long can they put off the Norman case? Years?

 

[GlocksAndPatriots]

No, it's just that Thomas and Gorsuch wanted to stretch their granting powers more than the other Justices. Peruta sought nothing more than a license to carry CONCEALED. This case had NO injured party, as there is no right to carry a concealed firearm and therefore it was proper to give a cert denied to petition.

Bad argument. The state also prohibits OPEN carry, and the cert petition clearly stated "Is there a right to carry a firearm in some way in public?" The 9th Circuit en banc panel dishonestly reframed the question, but that wasn't the way it went before the Supreme Court.

 

[jcutonilli]

I honestly think you are reading too much into the public policy safety issue. The Heller court acknowledged that commercial sale restrictions were acceptable..Thus, the public safety issue of felons, infants and mental incompetent's owning firearms is addressed. Federal and State sensitive places addresses that public safety issue. Then, last but not least, the manner of carry for the public safety. Heller declared, albeit indirectly, that states can regulate concealed carry....There is only one option left now and that is open carry. With open carry, for the public's safety, everyone is on notice that you are armed. I believe the right extends to any manner one chooses, but Heller states otherwise. I don't see a finer case than with Norman. It has ALL the proper elements for a Certiorari Granted.

I am not reading anything about the public policy safety issue. I am simply reading the arguments for and against. Based on those arguments, I look to see if the case was decided unreasonably. While I disagree with the decisions (such as Jackson, Peruta and Kolbe (district court decision) for example), they were not decided unreasonably. SCOTUS has passed on a number of cases decided on intermediate scrutiny. It does not have to take just any case and can wait on the right ones. Unless the case presents a compelling argument against it, SCOTUS will likely pass on the case.

 

[777GSOTB]

Bad argument. The state also prohibits OPEN carry, and the cert petition clearly stated "Is there a right to carry a firearm in some way in public?" The 9th Circuit en banc panel dishonestly reframed the question, but that wasn't the way it went before the Supreme Court.

You are just not getting the fact that, the way Peruta sought("...some way..") to carry, was to carry a CONCEALED firearm. He didn't seek to carry a firearm openly and therefore, lost that argument in his case...Just like the 9th Circus Court stated.

Peruta v City of San Diego
9th Circuit Court En Banc

"As the uncontradicted historical evidence overwhelmingly shows, the Second Amendment does not protect, in any degree, the right of a member of the general public to carry a concealed weapon in public. The Second Amendment may or may not protect to some degree a right of a member of the general public to carry a firearm in public. If there is such a right, it is only a right to carry a firearm openly. But Plaintiffs do not challenge California's restrictions on open carry; they challenge only restrictions on concealed carry."

"If there is a Second Amendment right of a member of the general public to carry a firearm openly in public, and if that right is violated, the cure is to apply the Second Amendment to protect that right. The cure is not to apply the Second Amendment to protect a right that does not exist under the Amendment."

Read the last bold statement until it becomes clear to you...This is why the other Justices didn't take the petition...There was no damaged party to invoke a review of the case.

 

[press1280]

So how long can they put off the Norman case? Years?

Norman will be filing for cert next month, unless they ask for another extension. We should know whether they take Norman by the end of the year unless things get dragged out big time.
There's also Nichols case, but being that's in CA9 and hasn't been heard it could be years on that case.

 

[GlocksAndPatriots]

I am not reading anything about the public policy safety issue. I am simply reading the arguments for and against. Based on those arguments, I look to see if the case was decided unreasonably. While I disagree with the decisions (such as Jackson, Peruta and Kolbe (district court decision) for example), they were not decided unreasonably. SCOTUS has passed on a number of cases decided on intermediate scrutiny. It does not have to take just any case and can wait on the right ones. Unless the case presents a compelling argument against it, SCOTUS will likely pass on the case.

Yes, they were decided unreasonably. You cannot use intermediate scrutiny for an enumerated right and then grant full deference to the legislature for the "weighing" of the evidence.

 

[GlocksAndPatriots]

You are just not getting the fact that, the way Peruta sought("...some way..") to carry, was to carry a CONCEALED firearm. He didn't seek to carry a firearm openly and therefore, lost that argument in his case...Just like the 9th Circus Court stated.

Peruta v City of San Diego
9th Circuit Court En Banc

"As the uncontradicted historical evidence overwhelmingly shows, the Second Amendment does not protect, in any degree, the right of a member of the general public to carry a concealed weapon in public. The Second Amendment may or may not protect to some degree a right of a member of the general public to carry a firearm in public. If there is such a right, it is only a right to carry a firearm openly. But Plaintiffs do not challenge California's restrictions on open carry; they challenge only restrictions on concealed carry."

"If there is a Second Amendment right of a member of the general public to carry a firearm openly in public, and if that right is violated, the cure is to apply the Second Amendment to protect that right. The cure is not to apply the Second Amendment to protect a right that does not exist under the Amendment."

Read the last bold statement until it becomes clear to you...This is why the other Justices didn't take the petition...There was no damaged party to invoke a review of the case.

Please read the cert petition. It was not limited to concealed carry.

 

[777GSOTB]

I am not reading anything about the public policy safety issue. I am simply reading the arguments for and against. Based on those arguments, I look to see if the case was decided unreasonably. While I disagree with the decisions (such as Jackson, Peruta and Kolbe (district court decision) for example), they were not decided unreasonably. SCOTUS has passed on a number of cases decided on intermediate scrutiny. It does not have to take just any case and can wait on the right ones. Unless the case presents a compelling argument against it, SCOTUS will likely pass on the case.

Jackson, Peruta and Kolbe....sorry, but NONE of them were damaged.

Norman was arrested, and thus was injured in the exercise of a fundamental right...They will take Norman.

So, when they take Norman...What say you?

 

[press1280]

Please read the cert petition. It was not limited to concealed carry.

Yes, they framed the argument in the way you said, however, they never asked for relief in the OC ban being struck down.
That seems to be the fatal flaw.

 

[777GSOTB]

Please read the cert petition. It was not limited to concealed carry.

The cert petition can say anything the lawyers write into it...So what? The fact that Peruta sought ONLY, read ONLY to conceal carry, removes carrying a firearm in some other way, other than concealed, from the argument.

 

[Inigoes]

Jackson, Peruta and Kolbe....sorry, but NONE of them were damaged.

Norman was arrested, and thus was injured in the exercise of a fundamental right...They will take Norman.

So, when they take Norman...What say you?

Williams from the 4CA was, and the SCOTUS rejected cert

 

[jcutonilli]

Yes, they were decided unreasonably. You cannot use intermediate scrutiny for an enumerated right and then grant full deference to the legislature for the "weighing" of the evidence.

You have not listened to what I have said. It comes down to the arguments presented. You are probably correct, but you (technically the lawyers) need to make a reasonable sounding argument as to why you cannot do that.

Deferring to the legislature is an appropriate thing for the court to do in certain circumstances. The government and the lower courts believe that it is appropriate to for these circumstances. I have not seen an appropriately reasoned argument in any of the cases that would suggest that this is inappropriate.

If you want SCOTUS to take the case you need to argue the case correctly.