Thursday, May 14, 2015

Peruta En Banc oral arguments to be heard in San Francisco on 16 June, 2015

Oral arguments will be heard before the En Banc panel of the Ninth Circuit Court of Appeals on Tuesday, 16 June, 2015.   The hearing will take place at 3:30 p.m. in Courtroom One at the James R. Browning Courthouse, 95 Seventh Street in San Francisco.  I have not seen what judges have been selected for the En Banc panel.  According to Ninth Circuit procedure, there will be 11 members.  I am sure that the oral arguments will be well covered.

The crux of Peruta is whether the right the keep and bear arms extends outside of the home.   The three judge panel argued, I believe extremely persuasively, that it does.    The dissenting judge, Sidney R. Thomas, argued that a nebulous state interest of "safety" overrode the second amendment, because, well, because the Supreme court had not addressed the issue of carrying outside of the home specifically in Heller.    The opinion and dissent are available in pdf format here.

Sidney R. Thomas has now become the Chief Judge of the Ninth Circuit.

Amicus briefs have been filed by numerous parties.   All of the amicus Briefs are available in pdf format here.

It is not clear that the State of California will be a party in the proceedings.  Kamala Harris, the AG, has asked to become a party.  Early in the case she argued that state law was not affected, so the state should *not* be a party.  She has asked the court to be able to participate in the oral arguments.

That request has not been ruled on, to my knowledge.   It is a critical point if the State of California is a party or not.   If they become a party, then they can appeal an adverse ruling;  if they are not a party, they have no standing to appeal. 

Sheriff Gore has stated that he would not appeal the ruling of the 3 judge panel.   He gets another bite of the apple with a new ruling by the En Banc panel, and could decide to appeal it, if it is adverse.  There would be tremendous pressure on him to do so, but the appeal is not as certain as it would be if the State of California becomes one of the parties to the case.

If the En Banc panel reverses the three judge panel's opinion, then the case would certainly be appealed by the plaintiffs.

Whether the Supreme Court would accept an appeal is completely uncertain.


Charles Nichols reports that the oral arguments will be available live streaming on YouTube video at the Ninth Circuit website.

 Link to Ninth Circuit page, audio and video links on the left

©2015 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch


Anonymous said...

The United States Constitution is the document that forces the federal government to guarantee our God given rights. It places limits on what the government can do and what it can not do. We are first citizens of this nation covered by the federal constitution then we are residents of the state where we live. We have a federally guaranteed right to self protection where ever we are in this nation. Most people do not spend their life at home. Self protection is a right where ever we happen to be. No State has the authority to take that right away. in order for every individual state to join the union they first had to recognize the power of the federal constitution and then write their on constitution to be incompliance with the federal constitution. Shall Not Be Infringed is also a limitation on the individual states. The California state constitution never addressed the second amendment issue so there is no delegated authority to make laws concerning the second amendment. Therefore there is not one California gun law that Is valid. Actually there are no valid state gun laws in any state because Shall Not Infringe precludes the states from violating the federal constitution.

Charles Nichols said...

The article failed to mention that oral arguments will be streamed live at the 9th Circuit Court of Appeals YouTube channel and archived for viewing online within 24 hours.

The state of California will be participating in oral arguments but not as an intervenor. Time will come from whatever time the defendants allot to AG Harris. Sheriff Gore has ceded all of his 15 minutes to the state.

The decision on whether or not the state's petition to intervene is granted will likely not take place until after oral arguments. For example, the question becomes moot if Peruta is remanded back to the district court.

In the interest of full disclosure I am an Amicus in the Peruta en banc appeal, the only Amicus to argue in support of the Second Amendment Open Carry right defined in the Heller decision.

Also, I have my own lawsuit challenging the 1967 ban on carrying loaded firearms in public (openly or concealed but under California law only applicable to Open Carry) and I am challenging the two recently enacted bans on unloaded Open Carry which is also pending before the 9th Circuit Court of Appeals.

It will be interesting and amusing to watch how AG Harris responds to any questions regarding Open Carry.
We already know the Peruta and Richards plaintiffs position - California can ban Open Carry if it wants to.