Peruta v. County of San Diego (CCW Case)

[esqappellate]

By "political entities" here, I mean that the courts do not (at least with respect to issues like this) examine the arguments and come to a conclusion on the basis of a rational evaluation of the law and how it fits in the framework defined by the Constitution and prior case law. Rather, it first decides what outcome it wants based on the political views of those deciding it and then goes fishing for "justification" for that decision.

As time has gone on, the pool of such "justifications" has grown. Today, "precedent" for literally anything can be found somewhere, and that makes it possible to "justify" anything and everything.

Anyway, by accusing the courts of being political, I am accusing them of manifest bias and malfeasance. They are doing the polar opposite of what they are supposed to be (and certainly what they are advertised as) doing.


Ostensibly is the key word here. It doesn't matter what is claimed about how the courts behave, what matters is what they actually do. And what they actually do is now manifestly clear: they decide on their whim, in an arbitrary and capricious manner, and then "justify" that after the fact.

En banc reversals are proof of this. In en banc reversals, every single input is the same, and the only difference is who is deciding the case. If the question of who was deciding the case were irrelevant, then the outcome would always be the same. But such is not the case with en banc reversals. When all of the inputs are the same (same law, same precedent, same facts) but the outcome is different, and the only difference between the two is who is deciding the case, then it logically must follow that the decision is not the result of what is being decided but who is deciding it. And that is inherently arbitrary. In systems terminology, it means that the system is nondeterministic with respect to the inputs.

And that is a very, very bad thing for an organization that is tasked with objectively evaluating the case against the law and, especially, the Constitution, because it makes the law chaotic.


The game will always be played out. The question here is whether or not the courts are generally serving to protect the right as they are tasked to. It is, after all, encoded in the very document that confers power to the judiciary. And the answer is clearly that they are not. Otherwise, we would not have lost every single carry case, save for one, that we've taken to the appellate level.

There is only one appellate court that ultimately matters: the SCT. Sooner or later there will be another SCT case. Of that, I have no doubt.

 

[kcbrown]

There is only one appellate court that ultimately matters: the SCT. Sooner or later there will be another SCT case. Of that, I have no doubt.

Nothing compels that. Absolutely nothing.

So it is on faith (and previous experience in other arenas) that you say this.

Since the 2nd Amendment has proven to yield a different behavior on the part of the lower courts than what you've generally seen, why do you not extend that to SCOTUS?

There may be another SCOTUS case sometime in the future, but it could easily be long past our lifetimes before it happens. As far as I'm concerned, that's the same as it not happening at all. And based on the fact that SCOTUS has passed on every single 2A case that has come before it since McDonald, I believe continued refusal to take 2A cases to at the very least be more likely than not. Indeed, that they're done with the 2nd Amendment is the only singular predictive explanation I know of for their refusal to date (but, of course, there may be other plausible predictive explanations, and nothing says that the correct explanation must be a singular one -- it may be that several explanations acting in concert are actually correct).

 

[Boxcab]

Nothing compels that. Absolutely nothing.

So it is on faith (and previous experience in other arenas) that you say this.

Since the 2nd Amendment has proven to yield a different behavior on the part of the lower courts than what you've generally seen, why do you not extend that to SCOTUS?

There may be another SCOTUS case sometime in the future, but it could easily be long past our lifetimes before it happens. As far as I'm concerned, that's the same as it not happening at all. And based on the fact that SCOTUS has passed on every single 2A case that has come before it since McDonald, I believe continued refusal to take 2A cases to at the very least be more likely than not. Indeed, that they're done with the 2nd Amendment is the only singular predictive explanation I know of for their refusal to date (but, of course, there may be other plausible predictive explanations, and nothing says that the correct explanation must be a singular one -- it may be that several explanations acting in concert are actually correct).

Is the 2A different? What does the early litigation for other Civil Rights show? Did they follow a similar trend of 1) lack of recognition, 2) early SCT cases being ignored, 3) slow recognition and acceptance? Does the statistical analysis show any true comparison?

Just wondering if there is any correlation.

 

[MDFF2008]

Is the 2A different? What does the early litigation for other Civil Rights show? Did they follow a similar trend of 1) lack of recognition, 2) early SCT cases being ignored, 3) slow recognition and acceptance? Does the statistical analysis show any true comparison?

Just wondering if there is any correlation.

I think the saga of school intigration corrilates with 2A well.

 

[esqappellate]

Nothing compels that. Absolutely nothing.

So it is on faith (and previous experience in other arenas) that you say this.

Since the 2nd Amendment has proven to yield a different behavior on the part of the lower courts than what you've generally seen, why do you not extend that to SCOTUS?

There may be another SCOTUS case sometime in the future, but it could easily be long past our lifetimes before it happens. As far as I'm concerned, that's the same as it not happening at all. And based on the fact that SCOTUS has passed on every single 2A case that has come before it since McDonald, I believe continued refusal to take 2A cases to at the very least be more likely than not. Indeed, that they're done with the 2nd Amendment is the only singular predictive explanation I know of for their refusal to date (but, of course, there may be other plausible predictive explanations, and nothing says that the correct explanation must be a singular one -- it may be that several explanations acting in concert are actually correct).

You are, of course, correct, my prediction that the SCT will act in this area at some point is based on my experience, which encompasses 40 years of litigating almost exclusively in the SCT and the federal courts of appeals. I am a student of the SCT because I have had to learn to be a student of the SCT in order to do my job. The SCT is different than the courts of appeals because it is Supreme Court. It is the Court that decided Heller and McDonald -- cases that they were not compelled to take. You say the 2A is different and there is no doubt that it is causing a lot of heartburn among the various judges of the courts of appeals. That is hardly without precedent in American jurisprudence. This is what the Court does. Doctrinal chaos will prevail in the lower courts until the Court decides to act. That happens a lot. Shrug. I don't know how old you are KC, but you if aren't too old, I imagine that you will live to see it. When it happens, you can send me a PM saying "Esq, you were right" and I promise I will be gracious. In the meantime, folks should organize and seek to support an Executive Branch and the Senate that politically support the 2A. It is the President, after all, who nominates SCT justices and it is the Senate that confirms (or not) these nominees.

 

[kcbrown]

I don't know how old you are KC, but you if aren't too old, I imagine that you will live to see it. When it happens, you can send me a PM saying "Esq, you were right" and I promise I will be gracious.

It is my greatest hope that I will have to do precisely that!

 

[rlc2]

And that's the task ahead.

In the meantime, folks should organize and seek to support an Executive Branch and the Senate that politically support the 2A. It is the President, after all, who nominates SCT justices and it is the Senate that confirms (or not) these nominees.

The legal teams we have, Clement/Michel funded by NRA, Gura/Kilmer funded by SAF, are now to be heard from, together per the 9th's notice.

http://michellawyers.com/wp-content...r_Appeal-Considered-for-Rehearing-En-Banc.pdf

I can't imagine a better team. Other than reading to learn more, out of curiousity, and posting here and at calguns to vent from time to time, I will be spending my spare 2A passion, time and $, toward 2016 elections, where we can make a difference with our votes.

 

[Elliotte]

The same thing was done for the original arguments if I remember correctly.

Looking at that pdf, did somebody goof, putting the State of CA as a pending intervenor for Peruta, et al? Instead of for the Sheriff?

 

[esqappellate]

The same thing was done for the original arguments if I remember correctly.

Looking at that pdf, did somebody goof, putting the State of CA as a pending intervenor for Peruta, et al? Instead of for the Sheriff?

yes, but the caption doesn't matter so it is a never mind.

 

[Elliotte]

yes, but the caption doesn't matter so it is a never mind.

I figured as much, although it would be funny if the AG wanted to be on our side.

 

[NY Marksman]

oral arguments on Cspan

better late than never

http://www.c-span.org/video/?c4542330/edward-peruta-v-county-san-diego-oral-argument

all the arguments from both sides we've come to expect, but the judges actually seemed o wrestle over whether or not the total prohibition was lawful...

 

[press1280]

better late than never

http://www.c-span.org/video/?c4542330/edward-peruta-v-county-san-diego-oral-argument

all the arguments from both sides we've come to expect, but the judges actually seemed o wrestle over whether or not the total prohibition was lawful...

Ummm....it was actually up on the web right after arguments. The waiting game is now in progress.

 

[danb]

I expect we will hear something on Oct 25th, in two weeks.

 

[swinokur]

3% change of that.

 

[krucam]

better late than never

http://www.c-span.org/video/?c4542330/edward-peruta-v-county-san-diego-oral-argument

all the arguments from both sides we've come to expect, but the judges actually seemed o wrestle over whether or not the total prohibition was lawful...

Did anyone else get a quasi-warm feeling from this one? It seemed that the judges were at least listening to the Clement/Gura team, they seemed to question the San Diego Atty a lot (not there at the District level, Unloaded Open Carry no longer an option, Affidavit submitted not holding water given lack of incidents in Counties that have liberal issue).

The Yolo Atty seemed somewhat shifty and had a poor exchange or two with the judges. No valid substantiating evidence to support the County's claim (only a declaration from the Sheriff) for their case. It seemed very weak IMHO.

 

[Applehd]

I get a warm and fuzzy feeling about all of the 2A cases... followed by the usual good, swift kick in the nuts by the Justices...Judges... Panel... whatever...

 

[kcbrown]

Did anyone else get a quasi-warm feeling from this one? It seemed that the judges were at least listening to the Clement/Gura team, they seemed to question the San Diego Atty a lot (not there at the District level, Unloaded Open Carry no longer an option, Affidavit submitted not holding water given lack of incidents in Counties that have liberal issue).

The Yolo Atty seemed somewhat shifty and had a poor exchange or two with the judges. No valid substantiating evidence to support the County's claim (only a declaration from the Sheriff) for their case. It seemed very weak IMHO.

Remember the Drake orals? Remember how it seemed the opposition simply wasn't able to hold their own during the orals?

Didn't matter, did it? And it won't here. Orals are political theater, not substantive inputs into the decision. The only exception is when one side or another makes a major concession, like Clement did.

 

[wolfwood]

Kevin I am a lawyer as you know. However I am not an appellate specialist. Neither are you. I have to assume that Paul Clement makes 1350 an hour because he knows what he is doing. I am assuming that he made that concession for a reason. I assume it was so that the appeals court will remand the issue to the lower court for a trial so that there will be a win at the appeals level. I don't know though. I do know the guy wasn't just whistling dixie

 

[redeemed.man]

Remember the Drake orals? Remember how it seemed the opposition simply wasn't able to hold their own during the orals?

Didn't matter, did it? And it won't here. Orals are political theater, not substantive inputs into the decision. The only exception is when one side or another makes a major concession, like Clement did.

What concession did Clement make? On my phone I can't open the attachments in this thread.

 

[danb]

What concession did Clement make? On my phone I can't open the attachments in this thread.

The discussion of this is in another thread, around here:

I agree with Gyphron's reading of Clement's argument. There is an important point that folks need to understand. Clement's strategy is to secure a win on the theory that any win is better than a loss and that any win will likely get this case to the SCT. He thus makes a narrow argument restricted to the legal issue presented on facts of *this case:* Gore's policy of making an applicant show a special need above and beyond that shared by the general population is unconstitutional. (BTW, that the MSP's policy too). If he gets that win, it will be a major achievement. You take cases as they arise. Sure, a broad win (mere assertion of the need for self defense is all that matters) would be great, but the judgment is that a narrow win is much more possible than a broad win. I agree with that judgment. This is how you win cases, one step at a time.

and:

That was in response to a hypothetical and he was pretty vague. There was no real concession here because the facts of the case don't require the court to address the "hum a few bars" scenario. Stated differently, the court is not going to rule that humming a few bars can be required by the state. The most the court might to is to say that we reverse Gore's policy and remand for Gore to adopt a new policy consistent with the opinion. It is quite unlikely to say that counsel has conceded that you can require an applicant to hum a few bars on his individual need. That would be non-binding dicta if did. It was a nothing as a concession. Was it wise for him to say what he said about humming a few bars? You can argue both ways, but it is like arguing about angels and pins as it won't matter. What matters is a reversal.

Clement's went for a narrow win as a fallback. Any win no matter how narrow is better than a loss for a variety of reasons. He also has a far better record than the pundits here.