Friday, June 10, 2016

Ninth Circuit Rules on Peruta: No Right to Carry Concealed, Effectively, No Right to Carry



It has been over a year since the en banc panel of the Ninth Circuit heard the oral arguments in the Peruta case.  During that period, Antonin Scalia, Supreme Court Justice who wrote the Heller v. D.C. opinion, died.   The Ninth Circuit has now reversed the ruling of the three judge panel in the Peruta case.  Essentially, they ruled that there is no right to bear arms concealed outside the home in California.  Then they ruled that they did not recognize a right to carry openly outside the home in California, because the Supreme Court has not directly ruled on the right to carry arms openly.  From the latest Peruta ruling (pdf):
The en banc court held that the history relevant to both the Second Amendment and its incorporation by the Fourteenth Amendment lead to the same conclusion: The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment. Therefore, because the Second Amendment does not protect in any degree the right to carry concealed firearms in public, any prohibition or restriction a state may choose to impose on concealed carry — including a requirement of “good cause,” however defined — is necessarily allowed by the Amendment. The en banc court stated that there may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public, but the Supreme Court has not answered that question.
In the dissent, the choice to frame the question very narrowly, so as to avoid the obvious prohibition on the general public from carrying arms outside the home, is noted:
In sum, Heller indicates that concealed-weapons
prohibitions may be proper as long as individuals retain other
means to exercise their Second Amendment right to bear
arms for self-defense. However, where other ways of
exercising one’s Second Amendment right are foreclosed, a
prohibition on carrying concealed handguns constitutes a
“severe restriction” on the Second Amendment right, just like
the District of Columbia’s unconstitutional handgun ban in
Heller.

II. Given California’s Choice to Prohibit Open Carry, the
Counties’ Policies of Not Allowing for Concealed
Carry for Self-Defense are Unconstitutional
But, those who decided to narrow the question to concealed carry only, so as to rule against carry outside the home, won the day.  Suspicions will float about that the Ninth was hoping that something such as Justice Scalia's death would occur before they made their decision. I doubt that is the case, although the Ninth stretched logic to reach the very narrow decision. 

The case will likely be appealed to the Supreme Court.  Given the makeup of the current court, I would not be surprised if the four leftist judges would quickly agree to hear the case; expecting that at worst, there would be a deadlock, thus insuring that the Ninth Circuit ruling will stand in California, Hawaii, and the rest of the Ninth Circuit, which is the largest circuit in the nation.

©2016 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch

9 comments:

Wireless.Phil said...

Just saw it and it is also in the WSJ and NBC News, below:

http://www.wsj.com/articles/appeals-court-upholds-concealed-carry-restrictions-1465483920

With video:
http://www.nbcnews.com/news/us-news/9th-circuit-court-appeals-says-no-right-concealed-gun-carry-n589041

Anonymous said...

In light of the 8-0 case that came out of SCOTUS recently, I have to disagree with you. That the decision was unanimous in that case, which was about a stun gun, your thought about the 4 taking the opportunity to make a 4-4 stick is effectively undermined.

This at least creates a absolute split between the ninth and the seventh - on the point about carriage outside the home being a right admitted in Heller.

The fine line of concealed carry being allowed because open carry was lawful IN THAT CASE must be addressed BECAUSE in that case we know that the Second Amendment was then not admitted as a individual right disconnected from military service AND held against the state and local governments as a matter of Incorporation.

I suppose there is merit in saying that the 9th is attempting to force SCOTUS to be more clear, but the fact remains that Heller and McDonald ARE clear. As compared to the first, Scalia wrote that the Second Amendment was no different from the first. The first requires Strict Scrutiny and the jurisprudence is quite rigid. The truth is, this was Scalia, and the majority of the court admitting that strict scrutiny is indeed required.

Now, the question to ask and be answered is simple. If the government can indeed prohibit concealed carry, forcing open carry, or prohibit open carry forcing concealed carry - and then go so far as to permission slip the allowed carriage - how can in not be then that the exact same power, same authority, exists over books, even Holy books?

In order to comport with and comply with Heller, a prohibition and or forcing of carrying bearable arms one way or another means government then has that same power, that same authority over books, even Holy books.

Said another way - Does the 9th actually believe that the first two amendments authorize government to prohibit openly carrying books, prohibit concealed carry of books and or hold the ability to prohibit and mandate open and concealed carry of books?

Pure ridiculousness. The first two Amendments were put in place to stop government, ALL government, from assuming those exact authorities.

Mike

Paul Weber said...

The 9th Circuit Court read the text of the 2nd Amendment as restrictively as possible, and completely ignore the 9th Amendment in doing so.

John Richardson said...

Why would the plaintiffs, Peruta and Richards, take any chance of appealing this decision? It would be counter-productive. Yes they lost and can appeal but with the makeup of the SCOTUS the best they could hope for would be a 4-4 split which reaffirms the 9th Circuit ruling. With Justice Scalia gone, I know Alan Gura wouldn't take the chance and I'd hope Paul Clement wouldn't either.

The State of California won so would have no grounds for appeal

Anonymous said...

To all of the legal professionals responding to this post. I ask them to show me the authority for any judicial officer to add, change or modify anything in the constitution. I do not have the title of the case, but I know a recent case where the US supreme court ruled that if it is not written it does not exist. Now go all the way back to the Marbury v Madison case of 1803 and apply this ruling. Where in the constitution is it written that the court has the authority to interpret the constitution? In fact the opposite is stated. American judicial officers are identified as judges Not magistrates or the kings representatives. we do not have a king , we have a president. We do not have a parliament. what we do have is a congress and a president and a court system. That court system is staffed with judges. Judges have no written authority to change, add or ignore the written words in the law or in the constitution. the only authority the judges have is to enforce the law with the words that are written in those laws and nothing else.

The Marbury v Madison case is an extreme over reach of judicial authority and is in fact an error. one of the very first errors the court made and that error has affected American jurisprudence ever since. Judges are the legal issue referee, the power to determine guilt is up to the jury.

The supreme court has no jury that is why the supreme court is strictly limited to exactly what words exist in the law and in the constitution. Judges are not permitted to have any bias or an opinion. therefore no interpretation is possible and force the courts to strictly adhere to exactly what is written. So legal experts show me where it is written that judges have the authority to interpret. It makes no difference if it is a gun or a Bible the words to determine who or how they can be carried do not exist. to rule beyond what is actually written requires personal bias or a personal opinion. and that is the definition of interpreting. If the words do not exist only bias or opinion can add them.
If the bill of rights amendments are ever legally amended that is the only way qualifiers can be added, until they are amended open or concealed are not allowed to be discussed. Only the words Shall Not be Infringed can be considered.

The words open or concealed do not exist and the word carry can not replace the word bear. there is no definition of the word arms so words like fire arm or knife or club, or rock, or mace or spear or sword or any other kind of arms can be address by law to inhibit or control their use or mode of bearing. In theory the court could rule the only way to bear a rifle would be to balance it on your head. and only if you were wearing a helmet that would conceal it. anyone that could wear a helmet that big probably does not need to bear arms.

The choice of the weapon a person bears is up to the individual and the mode to bear that arm is also up to the individual under the tenth amendment as an individual un enumerated right because those issues are not written therefore they belong to the people. the individual decides what they will bear and how they will bear it. No ones opinion counts because we all have one. no law can be written to cover every opinion.

Anonymous said...

John, "why take the chance" is exactly the NRA line we heard about each and every case, for half a century at least. Indeed, it was the core of the initial opposition to the Heller case that it did not support for the same dang reason.

Instead of the proven failure that is begging for permission and refusing to take risks, we should be literally daring these pathetic politicians to pass their wet dream gun control. Along with that change, we should be flooding the judiciary with cases rather than falling for the con that we have to "wait for the perfect set of circumstances with the perfect case and the perfect make up of the court".

It is 4-4 right now, and yet we witnessed a GASP!!!! gun case, regarding stun guns, turn out 8 to 0 in favor of the right to keep and bear arms.

If your FEAR has merit, how can that case have possibly come out at 8 to 0?

Brother, it is not time to bow down and refuse to act, it is time to stand up and fight back. Sure, the 9th issued this pathetic idiocy, but then so did the Mass Supreme Court. That court got slapped down for it - and the 9th has the reputation for being the most slapped down among the circuit courts.

It occurs to me that you present fear of fear itself as cause to stand down. I reject your fear based argument for inaction and suggest to you that more now stand on my side than yours. After all, it is your strategy that has held us in the position we have been in for so long and it is indeed time for change.

Answering your question honestly and straightforwardly, I tell you this -
Why appeal this? Well, because it is the right thing to do and fear is no reason to not do the right thing. That's why. But beyond that even I will answer you additionally in this way. Simply put, the 9th's decision and illogical circular reasoning do not comport with or comply with the Heller McDonald precedent set by SCOTUS. An appeal would be met with the same disdain that the MASS Supreme Court received for much the same antics. As SCOTUS does make anything near a habit of flip flopping back to back, the odds are heavily in our favor (almost as sure a bet as is possible, indeed akin to facing a called bluff).

No offense or disrespect meant toward you, but I as a gun owner and rights defender am so sick and tired of people trying endlessly to convince others to stand down, to refuse to fight back. Why do you folks live there? How can you ever expect to win your position if every time a fight ensues over it you advocate bowing down? Where would we be today if Dick Heller or Otis McDonald has listened to your "nah, we shouldn't fight back because we might lose" attitude? It leads me to think that you are indeed winning your position by convincing others to stand down, to refuse to fight back.

I stood there shaking Otis McDonald's hand when he was asked the simplest of questions about why he did what he did. His answer was the one I just gave you - because it is the right thing to do. Democrat or Republican no matter, it is the right thing to do. Otis, may his kind softspoken soul rest in peace, had serious courage. I ask that you consider his courage, and what was accomplished because he stood up. I do so in hopes it will help you stand up too, along with many many others who may be feeling as you do.

Rights are not handed to us, we have to stand up and defend them, we have to fight for them.

Mike

Anonymous said...

The constitution is basically a contract between two parties, the people and the government the people created. A basic course in reading the constitution would be a great help to so many that claim to be legal professionals. the people created the constitution to protect the people from the abuse of power by the government. Not to many people will sign on to a contract that guarantees they will be shit on. Anyone serving in a government position is required to work within the limitations placed on government by the contract/ constitution.

The constitution has the means to change things that do not work. The important thing here is that government is not permitted to make those changes without the consent of the people.

Opinions , laws and acts are not, I say again, ARE NOT legal Amendments. All of the laws, acts, regulations and amendments can not change the constitution if they are not in the form of a ratified amendment ratified by the people. Government needs the legal approval of the people to change anything in the constitution whether it is one word or even one punctuation mark. There are an extreme number of legally void rulings by the supreme court that continue to stand because the supreme court has never been held accountable for any of its errors. It is the duty of congress to hold the supreme court accountable and to correct its improper rulings or impeach and remove the violating justices. Congress is actually responsible to clean its own houses of incompetent members. Impeachment and removal is not an option it is a duty.

The legal profession has made a closed club out of what is supposed to be an open government. take a few minute and count how many people in government are not legal professionals. How many can you count that do not have some form of legal degree? Campaign managers have legal degrees. It is a fact that supreme court judges are not required to have a legal degree to qualify to be appointed to the bench. The whole set up creates a closed circuit for the court to get away with anything. the legal profession has muted the checks and balances system. Most of the members in both houses of congress have legal educations. How many of the past president have had legal degrees. You do not need a legal degree to make good common sense laws.

Anonymous said...

Let me point out a glaring USSC error. Find the word marriage in the federal constitution. the fact is it is not there. this means the USSC had no jurisdiction to hear the gay rights marriage issue because the tenth amendment makes it a states rights issue the USSC has no jurisdiction for. the error was the USSC declared the California Prop 8 unconstitutional A state citizen passed California state constitutional amendment. The USSC struck down the constitutional amendment as unconstitutional when the word marriage is not in the federal constitution. The words open or concealed are not in the second amendment. The USSC has no subject matter jurisdiction when the words do not exist. The USSC has no authority to interpret the second amendment. It can not rule on the constitutionality of words that do not exist. The words open or concealed are not in the second amendment.

Anonymous said...

I guess some people have trouble understanding that the Ninth Amendment suffices to rebuke the "a certain word isn't written in the Constitution". To the extent that marriage is a tenth amendment issue I point to this - marriage is a two party contract. The PROBLEM, which by definition cannot be the solution, is that NO government at all is tasked with injecting itself, or themselves, as a third party. After all, two does not equal three right? THAT is where the "jurisdiction" error really rests. No government has any business within a marriage contract. The issue there is the progressive tax code itself. Destroy the progressive tax code and then there is no reason for government at any level to reach into any marriage. It would then be relegated to its delegated authority to do no more than see enforced the private two party contract entered into - notice that is a specific and overtly delegated power of the judiciary. See, the judiciary is not empowered to SET the terms of the contract, it is ONLY empowered to see a contract entered into fulfilled by both parties.

Interpret is indeed a false construct. We The People decide what is Constitutional or not - defined by what the Constitution SAYS and what it does NOT say. Judges are there to apply the law as written and to facilitate a jury's decision regarding nullification and or guilt assigned. Scotus has assumed that old saying - Judge, Jury and Executioner- amounting to the biggest power grab ever foisted on the American people. Sad it is that it has taken the American people so very long to figure it out. The corruption began early on - and that word "interpret" was among the original sins committed against the republic.

10:31, great comment! The bar is indeed a closed group, one I would argue that constitutes a section of people who then enjoy a title of nobility. Literally outside the "law". Ironic it is how those making, enforcing and applying "law" are themselves set immune to it. Pretty pathetic indeed.