Thursday, June 9, 2016

9th Circuit Peruta Decision Boiled Down To The Essentials

Today the 9th Circuit Court of Appeals released their opinion in Peruta v. County of San Diego as well as Richards v. Prieto. The court sitting en banc said to California residents that unless you were rich and famous and could afford a substantial bribe campaign contribution to your local sheriff or were a Federal judge protected by the US Marshals Service, then you had no Second Amendment right to carry concealed. In essence, the court said you were on your own and if you wanted to carry a firearm concealed for self-defense, then you were just shit out of luck.

In the summary they said:
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.
You may remember that a regular three-judge 9th Circuit panel had found that the Second Amendment does indeed convey a right to carry. Chief Judge Sidney Thomas, a Clinton appointee, had been in the minority in that decision and worked to get it reheard en banc.

Today he was in the 7-4 majority with the opinion written by Judge William Fletcher, a Clinton appointee. Chief Judge Thomas was also joined in the majority by Judge Harry Pregerson, a 93-year old Carter appointee; Judge Susan Graber, a Clinton appointee; Judge Margaret McKeown, a Clinton appointee; Judge Richard Paez, a Clinton appointee; and Judge John Owens, a Obama appointee.

Voting for the Second Amendment right to carry were Judge Consuelo Callahan, a George W. Bush appointee; Judge Barry Silverman, a Clinton appointee; Judge Carlos Bea, a George W. Bush appointee; and Judge N. Randy Smith, a George W. Bush appointee.

I applaud Judge Silverman for bucking the trend of Democratic appointees who voted against the Second Amendment. Perhaps the judge was familiar with the works of the English philosopher John Locke who had greatly influenced our founding fathers. In Locke's Second Treatise Concerning Civil Government, Locke said, in so many words, that the first law of nature is a right to self-defense. In that view, it could be argued that today's 9th Circuit decision was a crime against the laws of nature.

I am in agreement with Sebastian that it would be very dangerous for the plaintiffs to appeal this ruling to the US Supreme Court as the Court stands now. I have an interview for the Polite Society Podcast scheduled for Friday with Alan Gottlieb of the Second Amendment Foundation. I'm sure that will come up during the interview. I will post more on that tomorrow afternoon.


  1. John, This will be appealed. Count on it. They have a 90 day window to file iirc. It will take several years to get to the Supes. I read the ruling. Nonsense and non sequitur. Going back to England in the 1600s ignores that we told the Brits to leave, and made it stick. And so on. This is what judicial mutiny looks like. Stare decis be damned is their motto.

    1. Both SAF and CalGuns are carefully evaluating their options. I'm still not sure that they will appeal the case. The 90 day window expires on Nov. 7th - the day before the election. Whether this was happenstance or deliberate I will leave up to you.

      I would not be surprised - and I have no inside info on this - if a new case is brought in California challenging the lack of ANY carry options. The Richards case which was a co-case with Peruta was argued from the viewpoint that the state could restrict the method of carry but not carry itself. By foreclosing concealed carry in a state where both loaded and unloaded open carry is banned would violate the dictum of Heller/McDonald.

  2. Seven Democrat appointed judges write an originalist opinion which the late Conservative Justice Scalia would have applauded and they are condemned by some for not shredding the Second Amendment as the four judges in the minority would have gladly done (three of whom were appointed by Republicans).

    By the way, what some call "dictum" is what the Federal courts have called binding in every case since Heller/McDonald.

    As for cert petitions, there is no SCOTUS Rule 10 split to argue in support of granting cert and there hasn't been in any concealed carry case. And yes, Peruta/Richards were concealed carry cases.

    Concealed carry is of no use to me, I don't carry a purse. Besides, Open Carry is the right guaranteed by the Constitution, concealed carry can be banned.

    "[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809

    "[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons..." Robertson v. Baldwin, 165 US 275 - Supreme Court (1897) at 282.