9th Circuit - "Good Cause" Requirement Unconstitutional

[PaulD]

The _ruling_ would not have to be "stopped" but rather mitigated by any means possible.

• Implement hyper-expensive licensing scheme.
• Implement hyper-expensive costs relative to ownership of handguns, such as staggeringly-high taxes on handguns and/or ammo.
• Prohibit persons based on any criteria imaginable.
• Outlaw carrying _loaded_ / redefine the term "loaded" to mean whatever gov't wants it to mean.
• Outlaw the carrying of ammo based on the fact that it is explosive / redefine ammo as a prohibited explosive.
• Outlaw holsters.
• Outlaw _features_ of handguns, such as a pistol grip. (Seriously.)
• Outlaw any handgun that does not use _smart_ tech.
• Enforce microstamping restriction.

The fact that these things would generate yet more lawsuits is irrelevant.

How is it irrelevant?

 

[Dadstoys]

And now for something completely different....

Wow Cuomo took that hard

 

[LR2a]

Before we even get to concealed carry, wasn't Heller supposed to make LTC-B's and/or restricted LTC-A's shall-issue?

Yes, it should have. However the state managed to use the "FID with a PTP satisfies Heller" rational. That won't work again.

And if we take the recommendation of Speaker DeLeo's blue ribbon commission to make even FID's "may issue"?

You don't have to dig very far to see how little care goes into policy-making, and perhaps how our state earned a reputation for parochialism.

 

[PaulD]

And if we take the recommendation of Speaker DeLeo's blue ribbon commission to make even FID's "may issue"?

You don't have to dig very far to see how little care goes into policy-making, and perhaps how our state earned a reputation for parochialism.

I'm not convinced DeLeo and his ilk actually understand, let alone heed, court rulings when they pass legislation.

 

[bigblue]

I may be reading incorrectly but if the ruling is struck down en banc... Does that not give Peruta etc al the opportunity that we need to deliver this at SCOTUS' doorstep?

Any way this plays out is good for us and if we can combine this with a favorable ruling in Abramski...

IDK, perhaps I am just dreaming of a utopia that will never come.

 

[OfficerObie59]

Yup, and they will probably grant an en banc because someone in power won't like the ruling. Based on Mr. Dragger's comment about 3 judges from a 29 judge panel, there are 1044 different draws of judges that could have heard the case (assuming random selection of the 3 judge pools). Given that, I wonder how many of those 1044 panels would have had a majority in our favor.

FWIW, 9th Circuit en banc is usually half the court because of the sheer size of the 9th Circuit's membership.

 

[Garys]

FWIW, 9th Circuit en banc is usually half the court because of the sheer size of the 9th Circuit's membership.

It's the Chief Judge, plus 10 others. The others are drawn at random.

 

[bigblue]

And if the 9th circuit overturns on an en banc ruling, Peruta can then appeal to SCOTUS. Thus giving SCOTUS the opportunity to affirm the logic presented, assuming they choose to take up the case. I don't see Scalia letting this one slide away.

 

[Garys]

No matter what happens with the en banc hearing, the losing side is likely to appeal for cert. The question in my mind is if the anti 2A forces will put pressure on San Diego County NOT to appeal for cert. Which is what happened to IL in Moore. Despite any obstacles some states would no doubt put in the way, a pro 2A decision at SCOTUS would be a major victory for us.

And if the 9th circuit overturns on an en banc ruling, Peruta can then appeal to SCOTUS. Thus giving SCOTUS the opportunity to affirm the logic presented, assuming they choose to take up the case. I don't see Scalia letting this one slide away.

 

[JoseyWales]

It looks like the San Diego sheriff, who might have put the "good cause" requirement in place, is William Gore who, as an FBI agent, was involved in the Ruby Ridge shooting.

 

[OfficerObie59]

It's the Chief Judge, plus 10 others. The others are drawn at random.

Ah, thank you. That means Kozinski will be on the panel. Not only is likely to be on the side of the plaintiffs, but if he writes a decision, it'll probably be pretty entertaining.

 

[terraformer]

It's the Chief Judge, plus 10 others. The others are drawn at random.

Ah, thank you. That means Kozinski will be on the panel. Not only is likely to be on the side of the plaintiffs, but if he writes a decision, it'll probably be pretty entertaining.

Do they allow the judges from the 3 person panel in as well? In CA1 and most other courts, that's the rule, the panel plus all non senior status judges. Meaning the senior status judges are on the enbanc panel too to make the panel all active judges plus those senior status judges included on the 3 person panel, if any.

 

[jar]

Do they allow the judges from the 3 person panel in as well? In CA1 and most other courts, that's the rule, the panel plus all non senior status judges. Meaning the senior status judges are on the enbanc panel too to make the panel all active judges plus those senior status judges included on the 3 person panel, if any.

The CA9 rule for selecting the limited en banc panel is the chief judge is always on, 10 drawn at random from the eligible pool. Eligible pool is all active judges + senior status judges on the original panel, should they choose to be part of the pool. There's also a provision for a full en banc rehearing including all active judges + the senior judges on the original panel, but it's never happened since they adopted the limited en banc rule.

 

[Knuckle Dragger]

This is starting to get interesting because we still don't have opinions for Richards (CA) or Baker (HI), the two other carry cases that the same panel heard the same day.

San Diego's decision on their next step is kind of a moving target without knowing what else the original panel has in mind.

 

[jar]

The most interesting speculation I saw is that O'Scannlain is holding on to Richards and Baker in case Peruta gets taken en banc(and therefore depublished) before the SCOTUS conference on Drake. Then can can publish one of them with substantially the same reasoning to maintain the circuit split. I have no idea if it's realistic, but it's certainly interesting.

 

[drgrant]

The _ruling_ would not have to be "stopped" but rather mitigated by any means possible.

• Implement hyper-expensive licensing scheme.
• Implement hyper-expensive costs relative to ownership of handguns, such as staggeringly-high taxes on handguns and/or ammo.
• Prohibit persons based on any criteria imaginable.
• Outlaw carrying _loaded_ / redefine the term "loaded" to mean whatever gov't wants it to mean.
• Outlaw the carrying of ammo based on the fact that it is explosive / redefine ammo as a prohibited explosive.
• Outlaw holsters.
• Outlaw _features_ of handguns, such as a pistol grip. (Seriously.)
• Outlaw any handgun that does not use _smart_ tech.
• Enforce microstamping restriction.

It depends on how much they wanna ignore or play chicken with a federal court. Usually enthusiasm wanes eventually... particularly after things like the huge "E. Honda Slaps" that SAF and other groups have administered.

Generating more lawsuits is certainly relevant because every thing they do gives us another free grenade to throw at them. By "Sucking it up and standing down" at some level or another the antis can actually be limiting the net damage they'll take.

-Mike

 

[Quiet]

As soon as they open a constitutional convention, perhaps Ted Cruz will offer the following:

Amendment XXVIII
Section 1.
The second article of amendment to the Constitution of the United States is hereby repealed. Section 2.
The right of the people to keep and bear arms shall not be infringed.

What would you suggest as the text for a "New 2A"?

 

[falcon123]

That depends on what you think the meaning of the word "is" is?

I think there's something on your blue dress.

- - - Updated - - -

9th ? ... Aren't they the famous Left Wing Circuit ?

Rush calls the the 9th circus.

 

[Garys]

I can't remember off hand if they are required to grant an en banc rehearing or if they can deny the motion. Does someone know?

 

[Knuckle Dragger]

I can't remember off hand if they are required to grant an en banc rehearing or if they can deny the motion. Does someone know?

They can deny.

 

[terraformer]

The CA9 rule for selecting the limited en banc panel is the chief judge is always on, 10 drawn at random from the eligible pool. Eligible pool is all active judges + senior status judges on the original panel, should they choose to be part of the pool. There's also a provision for a full en banc rehearing including all active judges + the senior judges on the original panel, but it's never happened since they adopted the limited en banc rule.

OK, so the senior judges get into the pool but are not guaranteed a spot. Thanks.

 

[terraformer]

The most interesting speculation I saw is that O'Scannlain is holding on to Richards and Baker in case Peruta gets taken en banc(and therefore depublished) before the SCOTUS conference on Drake. Then can can publish one of them with substantially the same reasoning to maintain the circuit split. I have no idea if it's realistic, but it's certainly interesting.

There is absolutely zero doubt in my mind that at least one of those two cases are being held back as a deus ex machina for anything the full circuit has planned. I am not sure about the Baker case because it's one of those bad kitchen sink cases, but Richards had no defects whatsoever.

 

[Garys]

They can deny.

Thanks.

 

[PaulD]

Here's an interesting discussion on the topic from an LA NPR station.

http://www.kcrw.com/media-player/mediaPlayer2.html?type=audio&id=ww140218ninth_circuit_recogn

Later on they have a law prof named Lawrence Rosenthal (ironic name) on. He used to work for mayor Daley in Chicago. The mental gymnastics this dbag goes through to justify his positions are astounding. On the other hand, they give good time to a guy from Calguns also.

 

[Coyote33]

Since this is binding in CA until overturned, it will be interesting to see what emergency order is issued to free CA of the obligation of issuing carry permits to the little people.

What kind of timing are we talking here, two weeks? Two years?

The plaintiffs lawyers must have shit a brick when they got this panel.

If this is heard en banc, I'd put money on it getting overturned.

... Yes, it should have. However the state managed to use the "FID with a PTP satisfies Heller" rational. That won't work again.

Yes, I'm sure this was a surprise. The 9th is pretty unpredictable though. I wouldn't put money either way on an en banc outcome. ...

Need a translator for the "en banc" and other lawyerese.

By "PTP", do you mean "Permit To Purchase"? If so, does that exist in MA?

... enthusiasm wanes eventually... particularly after things like the huge "E. Honda Slaps" that SAF and other groups have administered. ...

"E. Honda Slaps" means what?

 

[M1911]

Need a translator for the "en banc" and other lawyerese.

When you appeal to the Federal Appellate court, you get a panel of 3 judges. If you don't like their decision, you can appeal to the same court "en banc" -- that would have the case reheard in the same district, but buy all(*) of the appellate judges in that district. Basically, "en banc" appeal is another bite at the appeals apple, but with more judges from that same district.

You could also appeal direct to SCOTUS, rather than adding the stop at "en banc."

* In most districts, "en banc" review is all of the judges in that district. As described earlier in this thread, the 9th district is very large, so you don't get all of the judges in that district. Instead you get a panel of 11 judges, including the chief judge.

 

[jar]

What kind of timing are we talking here, two weeks? Two years?




Need a translator for the "en banc" and other lawyerese.

By "PTP", do you mean "Permit To Purchase"? If so, does that exist in MA?

First let me explain en banc. Circuit courts of appeals have a number of judges on them. Each case is heard by a panel of 3. There's a provision to ask for 'en banc rehearing' which means all of the judges on the circuit rehear the case. This is generally used when decisions of two different panels in the same circuit conflict or when the issue is extremely important. Because the 9th circuit is so huge, (29 active judgeships) and having a hearing with 29 judges would be a logistical nightmare, they have a special rule where they en banc panels consist of the chief judge plus 10 randomly selected judges. They also have a rule where the ruling of the 11 judge panel can be appealed to all 29, but that's never been granted.

San Diego has two weeks to ask the court for en banc. Also, at least the minority judge on the panel, and possibly any judge can ask the court for en banc. If this happens, the whole court votes on whether to hear the case en banc. If a majority vote for en banc, the panel decision is suspended (like it never happened) until the en banc decision comes out.

Yes he means permit to purchase. They do exist in MA law, but I've never heard of anyone who actually got one post 98.

 

[Coyote33]

Thank you both.

Yes he means permit to purchase. They do exist in MA law, but I've never heard of anyone who actually got one post 98.

Is there a way to find this out? Freedom Of Information Act?

 

[Knuckle Dragger]

Thank you both.



Is there a way to find this out? Freedom Of Information Act?

It's already been done. I can vouch for jar's comment. PTPs have not been issued to US citizens* in the recent past.


*PTPs can also be issued to Alien Permit holders (aka Alien FID) for the purpose of purchasing a non-large capacity rifle or shotgun.

 

[DrNVP]

http://apps.sdsheriff.net/press/Default.aspx?FileLink=fce6dc6b-e015-4c15-8d6c-4e38b4e212e1

Office of Media Relations Date: February 21, 2014

San Diego Sheriff's Decision
Regarding Ninth Circuit's Opinion on CCWs

Today, San Diego County Sheriff Bill Gore notified the County Board of Supervisors of his intention not to seek en banc review in the matter Peruta, et.al v. County of San Diego. A copy of Sheriff Gore's letter to the Board of Supervisors is below.
Members of the public wishing to obtain a CCW under the standards articulated by the Ninth Circuit should be aware that the decision has not yet become final. Federal court rules prescribe a period of time which must elapse before the case is remanded to the District Court for further proceedings. Should the decision of the Ninth Circuit become final, the Sheriff's Department will begin to issue CCWs in situations where the applicant has met all other lawful qualifications and has requested a CCW for purposes of self-defense.
Additionally, those seeking a CCW are advised that the process for obtaining a CCW involves several steps. The application process includes a scheduled interview, payment of fees, as well as state and local background checks. Successful completion of a firearms course of training is also required. This process can take several months.

Dear Supervisors:
On Thursday February 13, 2014, the Ninth Circuit Court of Appeals issued an opinion in the case of Peruta, et.al v. County of San Diego, et.al concluding that the State of California's requirement of "good cause," in cases where an applicant wants a firearm for personal protection, impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense. In its opinion, the Ninth Circuit defined the issue on appeal as "whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense." In so doing, the Ninth Circuit took an exhaustive look at the history of jurisprudence surrounding the Second Amendment, and more specifically what it means to "bear arms." It is clear, given the 2-1 split in this opinion, as well as the split among Federal Circuits across the Country, that there is no easy answer on which everyone will agree.
The decision by the Ninth Circuit has found that the Second Amendment requires that states permit some form of firearm carry for self-defense outside the home. Additionally, the Ninth Circuit went on to emphasize that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession '—or carriage—' of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Since becoming Sheriff, I have always maintained that it is the legislature's responsibility to make the laws, and the judiciary's responsibility to interpret them and their constitutionality. Law enforcement's role is to uphold and enforce the law. The legislature certainly has the power to amend California's firearm carry process, and the Ninth Circuit has the ability to bring its own motion to rehear the decision of the three member panel en banc. However, while the court's decision clearly involves a question of exceptional importance, and conflicts with decisions of other United States Courts of Appeals, the opinion provides clear guidance in the context of issuing CCWs in California.
Therefore, I see no need for me to petition for a hearing or rehearing en banc in order to be able to carry out my duties as Sheriff of San Diego County. As a result, I have advised the Office of County Counsel that I will not seek such a hearing.
Should the decision of the Ninth Circuit become final, the Sheriff's Department will begin to issue CCW's in situations where the applicant has met all other lawful qualifications and has requested a CCW for purposes of self-defense.

What's next? Good chance the dissenting judge asks for en banc?