Breaking news: Ninth Circuit Rules California May Issue Unconstituional

[MikePGS]

Very happy to hear that the good people of California are making progress in their struggle.

Sent from my SAMSUNG-SGH-I997 using Tapatalk 2

 

[Librarian]

One of the interesting bits here is how CA Legislators helped the case.

Back in 1967, the Legislature passed the Mulford Act; banning open carry of loaded guns.

A bunch of clever folks analyzed the Penal Code, and discovered that OPEN carry UNLOADED was not prohibited. We had a number of little demonstrations of that here in CA.

The demonstrations put bees in the bonnets of some legislators, and 2011 they passed AB 144 that banned even unloaded open carry (UOC) starting 2012.

However.

The lower court made much of UOC as an alternative path to self defense; it was still legal when that ruling came out.

Now that UOC is also banned, the only path to exercising the right of carry for self-defense is the permit system.

So the Court says

In California, the only way that the typical responsible, law-abiding citizen
can carry a weapon in public for the lawful purpose of self-defense is with a
concealed-carry permit. And, in San Diego County, that option has been taken off
the table. The San Diego County policy specifies that concern for “one’s personal
safety alone” does not satisfy the “good cause” requirement for issuance of a
permit. Instead, an applicant must demonstrate that he suffers a unique risk of
harm: he must show “a set of circumstances that distinguish [him] from the
mainstream and cause[] him . . . to be placed in harm’s way.” Given this
requirement, the “typical” responsible, law-abiding citizen in San Diego County
cannot bear arms in public for self-defense; a typical citizen fearing for his
“personal safety”—by definition—cannot “distinguish [himself] from the
mainstream.”
...
In other words, D.C.’s complete ban on handguns in the home
amounted to a destruction of the right precisely because it matched in severity the
kinds of complete carry prohibitions confronted (and struck down) in Nunn and
Andrews. These, in turn, resemble the severe restrictions in effect in San Diego
County, where the open or concealed carriage of a gun, loaded or not, is forbidden.
Heller teaches that a near-total prohibition on keeping arms (Heller) is hardly
better than a near-total prohibition on bearing them (this case), and vice versa.
Both go too far.

There are still hurdles to traverse, but this is a very nice start.

 

[ICE1210]

I don't it is going to make much difference. Pretty soon in California, the only handgun still legal will be cap and ball revolvers. The percussion caps would have to be micro stamped of course.

 

[Queen_of_Thunder]

The Ninth Circuit? The bastion of liberalism.

 

[charlie echo]

This decision may also be a reminder about the importance of judicial appointments. O'Scannlain and Callahan were respectively appointed by Reagan and Bush; Thomas was appointed by Clinton.

Good reminder, thanks

 

[larryh1108]

*May/Shall Issue, AWBs, gun free zones, growing insanity of the NFA & BATFE enforcement, open carry, reciprocity, 'reasonable restrictions,' the list is getting to be quite long and we're pushing firmly on all fronts and making actual progress.

Does it seem possible that the Supreme Court, realizing all of the potential legislation coming their way due to their recent rulings, can just decide to look at the entire right-to-carry system as a whole and make a ruling based on their previous decisions? They've already stated that states can impose certain limits to types of arms but basic rights like mentioned above could be ruled on in one, fell swoop and save millions of dollars in litigation and thousands of hours of court time because 50 states could ask the same question, with variations, on a hundred different issues. Things like right-to-carry, all states honoring a permit to carry, shall issue, etc., are all things that can be put to rest with one decision.

Is it feasible?

 

[danez71]

I don't it is going to make much difference. Pretty soon in California, the only handgun still legal will be cap and ball revolvers. The percussion caps would have to be micro stamped of course.

Part of... what I like about the ruling is the logic that went behind it.

If the same line of thinking continues, I can see the microstamping law being overturned and the Roster in big jeopardy too.

 

[martymcfly]

I find it disappointing how little news play this is getting. Seems like a big deal to me and boy howdy, did all the gun control stuff get play all over the place. But it's been darn hard to find much coverage on various CA news sites or the national news sites.

 

[another pake]

Yahoo picked up the Associated Press story a few hours ago.

http://news.yahoo.com/court-tosses-california-39-concealed-weapons-rules-200215313.html

Reading the comments at the end of the piece, most are favorable to our cause. I noticed the same when reading local accounts of the Connecticut "resistance" story today.

I'm encouraged.

 

[JRH6856]

Does it seem possible that the Supreme Court, realizing all of the potential legislation coming their way due to their recent rulings, can just decide to look at the entire right-to-carry system as a whole and make a ruling based on their previous decisions? They've already stated that states can impose certain limits to types of arms but basic rights like mentioned above could be ruled on in one, fell swoop and save millions of dollars in litigation and thousands of hours of court time because 50 states could ask the same question, with variations, on a hundred different issues. Things like right-to-carry, all states honoring a permit to carry, shall issue, etc., are all things that can be put to rest with one decision.

Is it feasible?

The Courts generally try to avoid making law. They rule on the issues brought before them and if they find the law involved to be flawed, their only real option is to declare it unconstitutional and thus invite the legislative branch to try to get it right.

What the Courts do not do is look ahead and rule on cases before they reach them.

 

[Frank Ettin]

Does it seem possible that the Supreme Court, realizing all of the potential legislation coming their way due to their recent rulings, can just decide to look at the entire right-to-carry system as a whole and make a ruling based on their previous decisions? ....

Is it feasible?

The short answer is "no." A court decides a case, i. e., the dispute in front of it.

The principles and interpretations of law used by a court to decide the case in front of it will, under the doctrine of stare decisis, be applied by other courts for which the deciding court makes binding precedent. Stare decisis reflects the principle that similar disputes should be decided in a similar way.

But the sort of thing you describe is really the province of legislatures.

 

[Sebastian the Ibis]

Will this only apply to California? Or can people from 'needs based essentially may issue' states like NJ, MD and HI can use this as an argument. What are the chances for this to affect New York State since both CA and NYS have may issue/shall issue areas.

Midwest,

This case only directly strikes down to San Diego’s “good cause” requirement to obtain carry permit.

However, all United States District Courts in California, Hawaii, Arizona, Nevada, Idaho, Montana, Oregon, Washington (state) and Alaska have to follow the reasoning in this opinion with respect to “need” for a carry permit.

This opinion does little for New Jersey and Maryland since those states are not in the Ninth Circuit, and the Second and Fourth circuits have already ruled the other way. However, this opinion contributes to the Circuit split making it more likely that the Supreme Court will take up the issue.

But, since this ruling was by a three-judge panel, might this be further reviewed by the full court, if California requests it?

Pendennis,

Yes, California will likely request en banc review.

Does that mean that since California already has procedures on the book for issuing CCW license that immediately everyone that qualifies and applies for a license must be given one now?

JellyJar,

No, not right now. This case specifically reversed the District Court’s summary judgment rulings on the constitutionality of the “good cause” requirement in San Diego. This will now go back to the District Court to enter an injunction instructing San Diego to issue permits to people whose good cause is self-defense.

Starting on page 64, they start punching holes in the decisions made by the 2nd, 3rd and 4th circuit decisions on carry outside the home.

Madsen 81,

I loved this part. They are daring another panel to disagree and look foolish.

I wonder if there's something in there that would apply to reciprocity/recognition of non-resident permits.

Morcey2,

Nope, at least not directly. For the most part reciprocity is done by agreements between the states.

What's the chance of them bypassing a full review from the 11 judge panel and appeal right to SCOTUS?

USMarine,

Small. California probably has better shot of winning en banc. Also, two chances is better than one.

Is it feasible?

larryh1108,

Nope. The Supreme Court doesn’t like doing “one fell swoop.” They like sitting back and watching how things play out in the lower courts. Even if there were a case which brought up all of those issues, the Court would decide it as narrowly as possible and pass on the rest.

 

[morcey2]

Morcey2,

Nope, at least not directly. For the most part reciprocity is done by agreements between the states.

I'm just hoping. There are some really great rivers in Northern Cal that I'd love to fish for steelhead and sea-run cutts. I've gotten so used to carrying that I can't stand being unarmed, especially in the outdoors.

Matt

 

[Midwest]

Back in 1967, the Legislature passed the Mulford Act; banning open carry of loaded guns.

If anyone is interested, here is the account on what happened that led to the banning of open carrying in California.

http://www.theatlantic.com/magazine/archive/2011/09/the-secret-history-of-guns/308608/1/

 

[toivo]

CA is unusual in that a CCW here isn't issued by the State but rather by each separate county...however, it is good anywhere in the state

Same in NY. There is a great deal of difference from county to county. Some are virtually "shall issue," while others are "probably won't issue."

 

[Field Tester]

While I am incredibly happy that there's a win in our corner, and I somewhat understand what the ruling means, how will it change things for me?

Obviously this affects me greatly considering where I live. I've long wished for the opportunity to CCW, but was always told it was a pipe dream. It looks like that dream may come true.

So what do I do now? When does this go into effect? Is there a chance it can be overturned? If I obtain my CCW and it's overturned am I grandfathered?

But the most important to me right now is am I now able to obtain my CCW? If so, what do I have to do to obtain it?

God I will frame Bill Gore's signature if he has to sign it. I will smile every day as I walk out the door as I'm carrying. I will kiss it the day I vote his pompous a** out of office.

 

[BigBore44]

Haven't been to California since I was a small child. When I was old enough to understand what a "leftist" and "liberal" was, and how they ruled there, I had no desire to ever return. Still, I am ecstatic for the 2A's win in the 9th. This is not over. But like in boxing, this hopefully will be the left jab that sets up the right cross. And then "Down goes Frazier! Down goes Frazier!".

 

[NavyLCDR]

There have been past discussions where the open carry groups in California were vilified for their "activism" which was blamed for California banning open carry. There has also been, in the past, some which claimed "Don't exercise that right, because if you do exercise that right, the government will ban it" and "just because you can do something doesn't mean the you should."

This is a perfect example of forcing government to play it's hand, instead of folding when the government threatens to go "all in". If unloaded open carry without a license had not been banned in California, then the first question the court would have had to answer was whether that unloaded open carry was sufficient for self-defense purposes. I suspect they likely would have ruled that unloaded open carry was a sufficient means of carrying a firearm for self-protection and we would have seen a different decision.

As I commented in those previous threads - it is better that the government pass a law than outright bans an activity because the law can be fought in court. Caving in under the fear of threatened government action does nothing because the voluntary surrendering of the right cannot be fought in court.

 

[HexHead]

Yes, California will likely request en banc review.

If it goes to the full 9th circuit court for review, I expect the decision would be reversed.

 

[barnbwt]

I personally wish the opinion had been shorter (maybe Circuit rulings can't be) because the more verbiage there is, the more likely some future jurist can find a flaw to exploit. Hopefully the panel was thorough enough that there are no conflicts in the logic.

TCB

 

[DeadMoneyDrew]

If it goes to the full 9th circuit court for review, I expect the decision would be reversed.

San Diego plans to ask for a full review according to that SFGate article that was posted earlier.

 

[gc70]

I personally wish the opinion had been shorter (maybe Circuit rulings can't be) because the more verbiage there is, the more likely some future jurist can find a flaw to exploit. Hopefully the panel was thorough enough that there are no conflicts in the logic.

Circuit court rulings don't have to be as long as this one, but I suspect that this one was purposely loaded up with citations to help insulate it from rebuttal in an en banc review and to provide more weight to the conclusions if the case goes to the Supreme Court.

 

[Sebastian the Ibis]

So what do I do now?

Go to pacer.gov (the U.S. Federal Court's docketing system), and sign up with your credit card. Then you can pull the docket for this case in the District Court (it costs ten cents a page). Pull the injunction when it is issued and apply for a concealed weapons permit making sure you comply with whatever requirements are included in the injunction.

When does this go into effect?

The opinion tells the lower court what to do - issue an injunction. So you will likely need to wait until the injunction is issued, San Diego backs down or some combination of both.

Is there a chance it can be overturned?

Yes.

If I obtain my CCW and it's overturned am I grandfathered?

It is way to early to say.

 

[MedWheeler]

NavyLCDR writes:

..it is better that the government pass a law than outright bans an activity because the law can be fought in court. Caving in under the fear of threatened government action does nothing because the voluntary surrendering of the right cannot be fought in court.

I agree. Apparently, so do up to 300,000 people in Connecticut, regarding the required registration of their so-called assault rifles.

 

[ChaoSS]

I have been wondering which was more likely, Feinstein and Pelosi cosponsoring a bill to repeal the NFA and GCA, or the 9th circuit standing up for the 2nd amendment.


Pelosi, we are waiting.....