California, Hawaii: Apply for Carry Permits Now

The long awaited decision of the 9th Circuit on whether the second amendment extends to carry outside of the home was answered yesterday by a three judge panel in Peruta v. County of San Diego.  Their answer was a resounding "Yes" though it was a 2-1 decision.   While I have only skimmed through the decision, the logic, historical references, and quotes from the Heller and McDonald Supreme Court decisions and  appeals court decisions are well written and clear.

The question is, what should those who support the restoration of second amendment rights do?  Do they need to do anything in response to this decision?

There are two actions that seem appropriate immediately.   First, remember that this was a three judge panel, not the entire Ninth Circuit.   The first possibility of appeal is to have the entire Ninth Circuit revisit the decision en banc.   If a decision is made to appeal, then the County of San Diego and/or Sheriff William D. Gore could ask the 9th Circuit to stay the decision while the appeal was taking place.

My belief is that only the defendants in the case have standing to appeal.  Significantly, that would be the County of San Diego, and William D. Gore, Sheriff of San Diego County.  Sheriff Gore is up for election in 2014, and is already soliciting money for his campaign.  Questions about his campaign may be asked of Kelli Maruccia at 619-239-1721.   The San Diego County Board of Supervisors consists of five members, four Republicans and a Democrat.  "Moderate" Republican Kevin Faulconer  won the mayor's race on Wednesday with 55% of vote, and that is in the City of San Diego, which has an edge in Democrat voters.   This site says that an en banc appeal must be requested by 28 February.

San Diego County is the most conservative urban county in the State.  The first thing that I would do, as a San Diego County voter, would be to insist that the Sheriff and the County Supervisors not make an en banc appeal, and not request a stay.   This decision is probably the best that could be hoped for out of the Ninth Circuit at this time.  There is nothing to be gained by having an appeal to the full court, and everything to be gained by having this decision in place for months, if not years.    The decision does not require action by the legislature, only by the counties.  The counties only have to change their procedures from "may issue" to "shall issue".    What will then happen is what we have seen in every other jurisdiction where the change from "may issue" to "shall issue" has occurred: a tremendous surge in the number of concealed carry permits.

Once a jurisdiction goes to shall issue, it creates a large class of politically savvy, educated voters with a direct interest in keeping shall issue and reforming the law by making it easier to obtain a permit, renewal, and to move toward lesser burdens on the permit holders.  This will place California permanently in the "Shall Issue" camp, and will do the same thing for Hawaii, as Hawaii is in the 9th circuit as well, and Hawaii law does not allow people to carry pistols for self defense without a permit.

The second action that seems indicated, is to apply for a concealed carry permit in the effected jurisdictions as soon as possible.   Very soon, if not immediately, every county in California is/will be required to issue permits without requiring a specific and unusual "need".   This situation will last until either a stay is placed on the Ninth Circuit's decision and/or until the decision is appealed and the appeal overturns it.  This period might last for a few days, a few months, a couple of years, or for the foreseeable future.  If a county denies an eligible person a permit during that period, it seems quite likely that the person would have standing to sue the County under this decision.   Lawyers may correct me, but I believe it would apply everywhere that the Ninth Circuit has jurisdiction, including Hawaii and the Pacific territories.

I suspect that most places would issue the permits rather than risk the potential lawsuits.   Even if the case is overturned sometime in the future, there would still be an educated and active class of people to whom some future politician will have to explain why he or she now wants to take away a right that they have had and exercised without any problem.

If I lived in a jurisdiction under the Ninth Circuit (I do) and was afflicted with burdensome laws like California, Hawaii or Guam (I am not), I would apply for a permit to carry as soon as possible.   This both demonstrates intent and gains standing for future suits.

I am not a lawyer, nor do I play one on TV.  I would love to have real lawyers school me on what the legal pitfalls of what I have written are, and what problems might result.  I suppose that people could lose the fee required to apply for the permit.    There may be other negative possibilities that I am not recognizing.

Illinois has already received nearly 50,000 permit applications in the first month.  They expect to receive 400,000 in the first year, 2014.   Illinois has a population of nearly 13 million.   Wisconsin issued 144,000 permits for a population of a little less than 6 million in the first year of its permit program.  California has a population of nearly 39 million, about three times as many as Illinois.   California could easily see a permit population of one million in the first year.  One million voters are not easy to ignore on a specific, focused, issue.

No state that has had a shall issue permit system has ever gone back to a may issue system.   California, Hawaii and Guam all have systems in place.   They only need to switch from a "may issue" to a "shall issue" system.  Around 11 California counties are already effectively "shall issue" because of other lawsuits brought by calguns and the Second Amendment Foundation (SAF).

This may be a major turning point in restoring the second amendment.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
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