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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #1  
Old 02-22-2014, 11:20 AM
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Exclamation CA AG Kamala Harris requests appeal of Peruta 2/27

From:
http://www.latimes.com/local/lanow/l...,2138479.story

San Diego County Sheriff Bill Gore has decided not to request the full U.S. 9th Circuit Court of Appeals to review a ruling, involving his department, that struck down the state's law on issuing concealed weapons permits.

That means that if there is to be an appeal to the ruling of a three-judge panel, it will have to come from the state attorney general or another judge on the appeals court, said James Chapin, senior deputy county counsel for San Diego County.

Chapin said that he inquired of the state attorney general's office and was told that the issue is "under review."


ETA: CA AG asked for en banc review by the 9th Circuit on Feb 27. Here's a pdf of her petition (thx Michel for the link):
http://michellawyers.com/wp-content/...o-Itervene.pdf
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Old 02-22-2014, 11:38 AM
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I think you can probably remove the "might". She will since it strikes down part of a state law, and it deals with average people being armed, something that no doubt frightens her beyond the level most would consider paranoia. I'm willing to bet that it will be appealed by the AG's office.
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Old 02-22-2014, 11:40 AM
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LA Times is misinformed. The state was not a party to the suit. No statute was overturned. Only the SD Sheriff's lack of acceptance of self defense as good cause was ruled unconstitutional. The AG cannot appeal it.
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Old 02-22-2014, 11:49 AM
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^Right. Nothing was sticken from a law. The application of the law was deemed unconstitutional -not the law itself.
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Old 02-22-2014, 11:55 AM
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Originally Posted by P5Ret View Post
...since it strikes down part of a state law, and it deals with average people being armed, ...
Negative. It doesn't touch the state law and sheriffs still reserve all the discretion they used to have, except that the court put a limit on what they can accept as a "good cause."

That's the beauty of the Peruta and Richards (soon to define what "good moral character" means) cases. Time for CA legislators to face the consequences of their laws.
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Old 02-22-2014, 2:39 PM
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Originally Posted by VAReact View Post
^Right. Nothing was sticken from a law. The application of the law was deemed unconstitutional -not the law itself.
Great piece of information. This will help neutralize buckets of FUD.

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Old 02-22-2014, 2:53 PM
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Quote:
Originally Posted by Southwest Chuck View Post
LA Times is misinformed. The state was not a party to the suit. No statute was overturned. Only the SD Sheriff's lack of acceptance of self defense as good cause was ruled unconstitutional. The AG cannot appeal it.
IANAL, but are you 100% sure? Calif const. article 5:

Quote:
Originally Posted by art 5
SEC. 13. Subject to the powers and duties of the Governor, the
Attorney General shall be the chief law officer of the State. It
shall be the duty of the Attorney General to see that the laws of the
State are uniformly and adequately enforced. The Attorney General
shall have direct supervision over every district attorney and
sheriff
and over such other law enforcement officers as may be
designated by law, in all matters pertaining to the duties of their
respective offices, and may require any of said officers to make
reports concerning the investigation, detection, prosecution, and
punishment of crime in their respective jurisdictions as to the
Attorney General may seem advisable. Whenever in the opinion of the
Attorney General any law of the State is not being adequately
enforced in any county, it shall be the duty of the Attorney General
to prosecute any violations of law of which the superior court shall
have jurisdiction, and in such cases the Attorney General shall have
all the powers of a district attorney. When required by the public
interest or directed by the Governor, the Attorney General shall
assist any district attorney in the discharge of the duties of that
office.
Again, IANAL, but does anything in there give her an opening to step in?
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Old 02-22-2014, 3:00 PM
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Originally Posted by CCWFacts View Post
IANAL, but are you 100% sure? Calif const. article 5:



Again, IANAL, but does anything in there give her an opening to step in?
In my opinion, possibly. In oral arguments the respondent's attorney (peruta or richards?) said the state was a represented party because the sheriff under Ca law is a state official.
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  #9  
Old 02-22-2014, 3:03 PM
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Quote:
Originally Posted by Paladin View Post
From:
http://www.latimes.com/local/lanow/l...,2138479.story

San Diego County Sheriff Bill Gore has decided not to request the full U.S. 9th Circuit Court of Appeals to review a ruling, involving his department, that struck down the state's law on issuing concealed weapons permits.

That means that if there is to be an appeal to the ruling of a three-judge panel, it will have to come from the state attorney general or another judge on the appeals court, said James Chapin, senior deputy county counsel for San Diego County.

Chapin said that he inquired of the state attorney general's office and was told that the issue is "under review."
This is a good development.

The Sheriff Gore’s unwillingness to touch CCW policy means that the issue is radioactive and he wants to get re-elected.

CA Attorney General Kamala Harris is in a bit of a pickle right now.

Why?

Because she extremely anti-gun, she wants to be elected governor eventually, and will do anything to prevent CCW--all of which conflict with one another.

Will she be willing to push her anti-gun agenda if to do so entails weakening her chances at getting elected some day?

We might soon find out.

If she does nothing, then any of the active 27 Ninth Circuit Court judges can request an en banc rehearing of Peruta.

Either way, this situation is slowly ticking down to a decision point.

And I do believe that as things stand right now, time is on my our side.
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Old 02-22-2014, 3:52 PM
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Originally Posted by 1813-2013 View Post
In my opinion, possibly. In oral arguments the respondent's attorney (peruta or richards?) said the state was a represented party because the sheriff under Ca law is a state official.
Yeah. I'm not sure what "supervising" the sheriffs means, because it's not spelled out in the constitution, but it seems like it might fit a situation like this.

Quote:
Originally Posted by Tarn_Helm View Post
The Sheriff Gore’s unwillingness to touch CCW policy means that the issue is radioactive and he wants to get re-elected.
It's not radioactive, it's just unhelpful to him, in San Diego, which is Republican-leaning, unlike most of the other population centers in California.

Quote:
Originally Posted by Tarn_Helm View Post
CA Attorney General Kamala Harris is in a bit of a pickle right now.
No she isn't...

Quote:
Originally Posted by Tarn_Helm View Post
Because she extremely anti-gun, she wants to be elected governor eventually, and will do anything to prevent CCW--all of which conflict with one another.
They don't conflict at all. At the state level, a solid majority of voters favor any and all gun control laws, including outright bans on everything. JB is a rare and exceptional politician who is helping us in small ways purely out of personal conviction and idealism. KH will be just fine running on a platform of absolute gun bans.

Personally, I hope she does not ask for en banc, because we can't gain anything from that, I hope she does apply for cert. My understanding is that applying for cert does not stay the decision, meaning the mandate issues in early March.

I do want it to go to SCOTUS because we need some SCOTUS-level decision on this before the court is packed with Obama or Hillary socialists.
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  #11  
Old 02-22-2014, 3:57 PM
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Quote:
Originally Posted by CCWFacts View Post
IANAL, but are you 100% sure? Calif const. article 5:

Quote:
Originally Posted by art 5
SEC. 13. Subject to the powers and duties of the Governor, the
Attorney General shall be the chief law officer of the State. It
shall be the duty of the Attorney General to see that the laws of the
State are uniformly and adequately enforced.
The Attorney General
shall have direct supervision over every district attorney and
sheriff and over such other law enforcement officers as may be
designated by law, in all matters pertaining to the duties of their
respective offices, and may require any of said officers to make
reports concerning the investigation, detection, prosecution, and
punishment of crime in their respective jurisdictions as to the
Attorney General may seem advisable. Whenever in the opinion of the
Attorney General any law of the State is not being adequately
enforced in any county, it shall be the duty of the Attorney General
to prosecute any violations of law of which the superior court shall
have jurisdiction, and in such cases the Attorney General shall have
all the powers of a district attorney. When required by the public
interest or directed by the Governor, the Attorney General shall
assist any district attorney in the discharge of the duties of that
office.
Again, IANAL, but does anything in there give her an opening to step in?

No room for her to wiggle in here in my opinion. No "Law" was struck, thus, no law to enforce. The "policy of SD's sheriff is not Law. If nothing else, the above passage would require Kamla Harris to make sure that all sheriffs in the state follow the 9th Circuit's ruling. Let her stuff that in her pipe and smoke it. Having her enforce the decree would be akin to gagging her with a spoon I'm sure we could find an attorney somewhere that could make that happen (complell her to perform her duties and enforce the 9th's ruling ....
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I am humbled at the efforts of so many Patriots on this and other forums, CGN, CGF, SAF, NRA, CRPF, MDS etc. etc. I am lucky to be living in an era of a new awakening of the American Spirit; One that embraces it's Constitutional History, and it's Founding Fathers vision, especially in an age of such uncertainty that we are now in.
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  #12  
Old 02-22-2014, 4:02 PM
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I do want it to go to SCOTUS because we need some SCOTUS-level decision on this before the court is packed with Obama or Hillary socialists.
It will get there. There is a major circuit split now, remember? Our best hope for a SCOTUS review at this point, is Drake. After that, with Baker coming due soon, I'm sure Hawaii wil help us out requesting cert.
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Originally Posted by Southwest Chuck View Post
I am humbled at the efforts of so many Patriots on this and other forums, CGN, CGF, SAF, NRA, CRPF, MDS etc. etc. I am lucky to be living in an era of a new awakening of the American Spirit; One that embraces it's Constitutional History, and it's Founding Fathers vision, especially in an age of such uncertainty that we are now in.
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Old 02-22-2014, 4:02 PM
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FUD. The issue is discretion, and the AG cannot exercise discretion on behalf of a Sheriff. Also, as mentioned, no state law was stricken. This was an as applied challenge.
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Old 02-22-2014, 4:04 PM
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Who the hell reads the LA times and their vomitus sputum they put on paper and on line?
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Old 02-22-2014, 4:28 PM
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Quote:
Originally Posted by CCWFacts View Post
Yeah. I'm not sure what "supervising" the sheriffs means, because it's not spelled out in the constitution, but it seems like it might fit a situation like this.
It fits because it was intentionally crafted to be vague and give the AG the ultimate power to order a sheriff to do something.

Quote:
Originally Posted by CCWFacts View Post
It's not radioactive, it's just unhelpful to him, in San Diego, which is Republican-leaning, unlike most of the other population centers in California.
You will see very soon just how radioactive this issue is Peruta if allowed to stand and CLEOs in largely urban areas are suddenly swamped with thousands of applications.

They will simply cave in and start issuing on a virtual shall-issue basis.

The anti-gun officials, elected and appointed, will say to themselves: "Holy poop! I didn't know all these pro-CCW gun nuts were out there!"

Quote:
Originally Posted by CCWFacts View Post
No she isn't... [in a pickle] . . .
You underestimate the pressure on elected officials and how willing they are to bow to popular pressure.

You'll see.

I wager that CA Attorney General Kamala Harris will not request an en banc rehearing of Peruta nor will she order Sheriff Gore to request one--for the reasons I've laid out in my previous post.

Also, a certain reality is going to start sinking in as the CA anti-gun crowd re-evaluates its imagined standing in society in light of Peruta.

CA is becoming a high-visibility outlier in terms of CCW policy.

Politicians function essentially in terms of a herd animal mentality.

But they only pretend to lead the herd.

In reality, they simply run in the direction they anticipate the herd wants to run.

As elected and appointed officials in CA begin to absorb more information about the prevalence of shall-issue CCW around the country, the better it is for CA residents who favor shall-issue CCW policy.

Politicians will learn--possibly by looking at the animated graphic here http://www.gun-nuttery.com/rtc.php, and they will eventually decide to get with the program.

Remember: for them, the lesser of two evils is to tolerate policies they find abhorrent rather than to fail to get elected (or appointed).

You'll see.

Our "leaders" will follow us.



As for SCOTUS, I think the anti-gun crowd sees the writing on the wall: They want to avoid making any more mistakes that result in their being forced by any courts--Appellate or SCOTUS--to loosen any more CCW rules.

I think the anti-gun crowd sees that it fornicated with the wrong pooch.
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Old 02-22-2014, 4:52 PM
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She won't. I will bet anything that anti-2A money in the Northeast (think Bloomberg) is telling California to take the fall. Rumor has it that's the reason Illinois went shall-issue rather than appealed to SCOTUS.
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Old 02-22-2014, 5:05 PM
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Kamala Harris has no standing to do anything.
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Old 02-22-2014, 5:09 PM
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If Chicago conceded , Cali will too...
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Old 02-22-2014, 6:10 PM
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Originally Posted by glockman19 View Post
Kamala Harris has no standing to do anything.
That's the first thing that came to my mind when I read the thread title but IANAL.
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Old 02-22-2014, 6:25 PM
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Originally Posted by 6114DAVE View Post
If Chicago conceded , Cali will too...
Agreed.

Chicago/Illinois was even more rabidly anti than California. FOID card and all.
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Old 02-22-2014, 6:25 PM
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James Chapin is wrong. Only a party may request an appeal. The state was not a party in Peruta, and Richards they were notified and they decided not to join the case in District Court. They cannot suddenly join it and then appeal upwards.
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Old 02-22-2014, 6:27 PM
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Originally Posted by 6114DAVE View Post
If Chicago conceded , Cali will too...
Yep... They will just kick and scream a little before taking their ball home LOL
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Old 02-22-2014, 7:18 PM
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Lordy, Lordy. I do hope all this optimism is justified. We'll have to wait a bit to see if the state legislature get it. I'd bet my next paycheck they'll step in with every harrassment law they can think up.
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Old 02-22-2014, 7:34 PM
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My prediction is no further appeals. The Peruta opinion is air-tight. It took the same approach as Heller. If I'm wrong and it does go to SCOTUS, it will be affirmed. The article quotes James Chapin, and I believe him, no reason not to. If he said the AG had an option to appeal, then it must be true. He obviously spoke to Sacramento.
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Old 02-22-2014, 8:07 PM
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James Chapin is wrong. Only a party may request an appeal. The state was not a party in Peruta, and Richards they were notified and they decided not to join the case in District Court. They cannot suddenly join it and then appeal upwards.
Correct, the State of California is not a party to the litigation. As a result, it has no standing to take any action in Peruta v. San Diego County, a federal action.

If the published decision (I have not read all 112 single spaced pages) in Peruta v. San Diego County in any way strikes down any California law as unconstitutional, absent a timely request for reconsideration (en banc or not) filed by the County of San Diego, that decision regarding the 2nd Amendment will become final and a binding precedent in the 9th Circuit (the whole region extending beyond California).

I do not share in everyone else's optimism regarding Peruta v. San Diego County. The few rules and analyses that I have read from it undermine the 2A doctrine, for example:
Of course, the necessity of this historical analysis presupposes what Heller makes explicit: the Second Amendment right is “not unlimited.” Id. at 595. It is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626. Rather, it is a right subject to “traditional restrictions,” which themselves—and this is a critical point—tend “to show the scope of the right.”
Peruta v. San Diego, p. 13.

This exception swallows the entire rule that a regulation impairing a fundamental right must be subjected to strict scrutiny review and is presumptively invalid. Instead, Peruta creates a rule of per se validity of regulation of the 2A. Actually, the Peruta decision avoids identifying a standard of review.

Another glaring problem is this rule in Peruta, "To put it simply, concealed carry per se does not fall outside the scope of the right to bear arms; but insistence upon a particular mode of carry does." Id. at p. 56.

It appears that the Peruta decision does not directly conclude that a California law is unconstitutional. Rather, Peruta indicates that because the California legislature limited the bearing of firearms outside of the home to concealed carry, the 9th Circuit's analysis will be limited to the whether the San County Sheriff's custom regarding issuance of concealed carry licenses violates the the 2A, "As the California legislature has limited its permitting scheme to concealed carry—and has thus expressed a preference for that manner of arms-bearing—a narrow challenge to the San Diego County regulations on concealed carry, rather than a broad challenge to the state-wide ban on open carry, is permissible." Id. see also FN 19 (The dissent curiously misinterprets our opinion as ruling on the constitutionality of California statutes. We decline to respond to its strawman arguments.).

Even more problematic in Peruta v. San Diego is the notion that the right to bear arms in public can be broadly regulated, "Nor should anything in this opinion be taken to cast doubt on the validity of measures designed to make the carrying of firearms for self-defense as safe as possible, both to the carrier and the community." Id. at 68-69 see also p. 13 above "whatsoever weapon...whatsoever manner...whatsoever purpose." This leaves open the problem of the legislature regulating the right to bear arms in public via exorbitant fees, regulation by caliber as is the case in Mexico and California's .50 bmg ban, number of round bans (e.g. no semi-automatic handguns with more than 7 rounds), or the banning of entire classes of firearms as we already have in California.

The latter point of classes of firearms is salient. Since California bans semi-automatic shotguns with a detachable magazine, the Peruta decision leaves open the possibility that handguns with detachable magazines can be banned and a taking with compensation requiring their destruction is lawful. The law requiring the SKS rifle with a detachable magazine be surrendered, without any principled explanation, already occurred.

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Old 02-22-2014, 8:13 PM
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Sarabellum, you are confusing Heller and Peruta, and misunderstanding the scope of the issue before the Peruta court. I'll give a more detailed reply later.
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Old 02-22-2014, 8:18 PM
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Sarabellum, you are confusing Heller and Peruta, and misunderstanding the scope of the issue before the Peruta court. I'll give a more detailed reply later.
I cited the language directly from Peruta. The issue on appeal before the Peruta Court is precisely this one, whether the "...San Diego County’s 'good cause' permitting requirement impermissibly infringed on the Second Amendment right to bear arms in lawful self-defense" id. at p. 2, and as cited by me above, "As the California legislature has limited its permitting scheme to concealed carry—and has thus expressed a preference for that manner of arms-bearing—a narrow challenge to the San Diego County regulations on concealed carry, rather than a broad challenge to the state-wide ban on open carry, is permissible." Id. at 13.

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Old 02-22-2014, 8:19 PM
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I cited the language directly from Peruta.
Which was directly quoting Heller...
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Old 02-22-2014, 8:29 PM
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Which was directly quoting Heller...
Correct. As a result, Peruta v. San Diego by citing to Heller adopted those rules from Heller. The 9th Circuit in Peruta v. San Diego has no choice but to cite to Heller. The rules from Heller are authority from a court of superior jurisdiction, the US Supreme Court. That is the nature of Stare Decisis.

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Old 02-22-2014, 8:30 PM
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Correct, the State of California is not a party to the litigation. As a result, it has no standing to take any action in Peruta v. San Diego County, a federal action.

If the published decision (I have not read all 112 single spaced pages) in Peruta v. San Diego County in any way strikes down any California law as unconstitutional, absent a timely request for reconsideration (en banc or not) filed by the County of San Diego, that decision regarding the 2nd Amendment will become final and a binding precedent in the 9th Circuit (the whole region extending beyond California).

I do not share in everyone else's optimism regarding Peruta v. San Diego County. The few rules and analyses that I have read from it undermine the 2A doctrine, for example:
Of course, the necessity of this historical analysis presupposes what Heller makes explicit: the Second Amendment right is “not unlimited.” Id. at 595. It is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626. Rather, it is a right subject to “traditional restrictions,” which themselves—and this is a critical point—tend “to show the scope of the right.”
Peruta v. San Diego, p. 13.

This exception swallows the entire rule that a regulation impairing a fundamental right must be subjected to strict scrutiny review and is presumptively invalid. Instead, Peruta creates a rule of per se validity of regulation of the 2A. Actually, the Peruta decision avoids identifying a standard of review.

Another glaring problem is this rule in Peruta, "To put it simply, concealed carry per se does not fall outside the scope of the right to bear arms; but insistence upon a particular mode of carry does." Id. at p. 56.

It appears that the Peruta decision does not directly conclude that a California law is unconstitutional. Rather, Peruta indicates that because the California legislature limited the bearing of firearms outside of the home to concealed carry, the 9th Circuit's analysis will be limited to the whether the San County Sheriff's custom regarding issuance of concealed carry licenses violates the the 2A, "As the California legislature has limited its permitting scheme to concealed carry—and has thus expressed a preference for that manner of arms-bearing—a narrow challenge to the San Diego County regulations on concealed carry, rather than a broad challenge to the state-wide ban on open carry, is permissible." Id. see also FN 19 (The dissent curiously misinterprets our opinion as ruling on the constitutionality of California statutes. We decline to respond to its strawman arguments.).

Even more problematic in Peruta v. San Diego is the notion that the right to bear arms in public can be broadly regulated, "Nor should anything in this opinion be taken to cast doubt on the validity of measures designed to make the carrying of firearms for self-defense as safe as possible, both to the carrier and the community." Id. at 68-69 see also p. 13 above "whatsoever weapon...whatsoever manner...whatsoever purpose." This leaves open the problem of the legislature regulating the right to bear arms in public via exorbitant fees, regulation by caliber as is the case in Mexico and California's .50 bmg ban, number of round bans (e.g. no semi-automatic handguns with more than 7 rounds), or the banning of entire classes of firearms as we already have in California.

The latter point of classes of firearms is salient. Since California bans semi-automatic shotguns with a detachable magazine, the Peruta decision leaves open the possibility that handguns with detachable magazines can be banned and a taking with compensation requiring their destruction is lawful. The law requiring the SKS rifle with a detachable magazine be surrendered, without any principled explanation, already occurred.
That's quite a post there sarabellum...the Sactown moles browsing this forum thank you for your information
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Old 02-22-2014, 8:35 PM
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That's quite a post there sarabellum...the Sactown moles browsing this forum thank you for your information
The moles in Sacramento already know what to do. Who does not know the pitfalls of wishy washy Peruta v. San Diego is/are our members.
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Old 02-22-2014, 8:37 PM
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The moles in Sacramento already know what to do. Who does not know the pitfalls of wishy washy Peruta v. San Diego is/are our members.
I think we give them too much credit ..
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Old 02-22-2014, 8:42 PM
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Originally Posted by Drivedabizness View Post
see "arms in common use" from Heller
The law is rules, logic, and principles. Peruta v. San Diego reaffirms notions of control and regulation, ala time, place, and manner already addressed in Calguns. This language accomplishes that, "Nor should anything in this opinion be taken to cast doubt on the validity of measures designed to make the carrying of firearms for self-defense as safe as possible, both to the carrier and the community." Id. at 68-69 see also p. 13 above "whatsoever weapon...whatsoever manner...whatsoever purpose."

Time, place, and manner: http://www.calguns.net/calgunforum/s...2#post13234222

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Old 02-22-2014, 8:44 PM
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I think we give them too much credit ..
Too funny. It is frightening to think that the politico's staff in Sacramento are dumber than I am. We're doomed if that is the case.
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Old 02-22-2014, 8:56 PM
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...(I have not read all 112 single spaced pages) in Peruta v. San Diego County...
You should. Pay particular attention to structural blocks in the ruling and the order of reasoning. It reads like a mathematical proof, where facts are established one at a time, authoritatively and in correct order.


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The few rules and analyses that I have read from it undermine the 2A doctrine, for example:
Of course, the necessity of this historical analysis presupposes what Heller makes explicit: the Second Amendment right is “not unlimited.” Id. at 595. It is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626. Rather, it is a right subject to “traditional restrictions,” which themselves—and this is a critical point—tend “to show the scope of the right.”
Peruta v. San Diego, p. 13.

This exception swallows the entire rule that a regulation impairing a fundamental right must be subjected to strict scrutiny review and is presumptively invalid. Instead, Peruta creates a rule of per se validity of regulation of the 2A. Actually, the Peruta decision avoids identifying a standard of review.
Yes, Peruta avoids standard of review since it, much like Heller, is addressing a total ban. The ruling very methodically addresses why it is a total ban, including a lengthy discussion why it is sufficient for Peruta only to challenge concealed carry license and not the whole permitting scheme in a state such as CA (which also undermines the dissent which is based precisely on the narrowing the answer and limiting it to the concealed carry regardless of context of open carry.)

The level of scrutiny, as the ruling explicitly states, is irrelevant when dealing with total bans.

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Another glaring problem is this rule in Peruta, "To put it simply, concealed carry per se does not fall outside the scope of the right to bear arms; but insistence upon a particular mode of carry does." Id. at p. 56.
Correct. However, there is a long section in prevailing opinion on why Peruta's case is not a petition for "a particular mode of carry," but a petition to allow "any mode of carry" (even though it addresses only the concealed permit.)

This section is very well written and comes after historical analysis. Again, worth reading.

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It appears that the Peruta decision does not directly conclude that a California law is unconstitutional.
It doesn't address constitutionality at all. It's about "as applied" policy of sheriff Gore. This is how it has been structured intentionally from the beginning.

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Originally Posted by sarabellum View Post
Rather, Peruta indicates that because the California legislature limited the bearing of firearms outside of the home to concealed carry, the 9th Circuit's analysis will be limited to the whether the San County Sheriff's custom regarding issuance of concealed carry licenses violates the the 2A, "As the California legislature has limited its permitting scheme to concealed carry—and has thus expressed a preference for that manner of arms-bearing—a narrow challenge to the San Diego County regulations on concealed carry, rather than a broad challenge to the state-wide ban on open carry, is permissible." Id. see also FN 19 (The dissent curiously misinterprets our opinion as ruling on the constitutionality of California statutes. We decline to respond to its strawman arguments.).
Again, this is from Thomas' dissent. The point is that he is not addressing the CONTEXT of Peruta's petition, which is the lack of open carry. This is very well addressed by the majority.

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Originally Posted by sarabellum View Post
Even more problematic in Peruta v. San Diego is the notion that the right to bear arms in public can be broadly regulated, "Nor should anything in this opinion be taken to cast doubt on the validity of measures designed to make the carrying of firearms for self-defense as safe as possible, both to the carrier and the community." Id. at 68-69 see also p. 13 above "whatsoever weapon...whatsoever manner...whatsoever purpose."
Regulated - yes. That's a no event. The point is that the regulation must be for safety (e.g., cannot carry in hand), not for diminishing the right itself (which all coastal counties do.)

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Originally Posted by sarabellum View Post
This leaves open the problem of the legislature regulating the right to bear arms in public via exorbitant fees, regulation by caliber as is the case in Mexico and California's .50 bmg ban, number of round bans (e.g. no semi-automatic handguns with more than 7 rounds), or the banning of entire classes of firearms as we already have in California.
That is NOT regulation. That would be yet another attempt at minimizing the accessibility of the right.

Sure they can try, but they would get destroyed in courts. Actually, it would be GOOD if they tried, as the more they try the more we can set hard limits on what regulation can do.

Quote:
Originally Posted by sarabellum View Post
The latter point of classes of firearms is salient. Since California bans semi-automatic shotguns with a detachable magazine, the Peruta decision leaves open the possibility that handguns with detachable magazines can be banned and a taking with compensation requiring their destruction is lawful. The law requiring the SKS rifle with a detachable magazine be surrendered, without any principled explanation, already occurred.
It was pre-Heller and it has nothing to do with Peruta. Banning of certain types of firearms is a separate set of cases that are working their way throughout the courts. Clearly legislators cannot ban a whole class of commonly used firearms. Heller says so.

Overall, your concern is warranted only to the extent that we have to see what the sheriffs will do and how we are going to transition from this ruling (assuming it stands) to the "virtual shall issue." Otherwise, the details of your concern are not a problem at all in this case.
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Old 02-22-2014, 9:00 PM
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Too funny. It is frightening to think that the politico's staff in Sacramento are dumber than I am. We're doomed if that is the case.
Its confirmed. We're doomed.
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Old 02-22-2014, 9:16 PM
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Looks like IVC addressed everything, but sufficed to say any concerns about Peruta are unjustified. It really it the best decision we could possibly have received on the limited facts of the case. SCOTUS is still going to have to set a standard of scrutiny, but I expect they will borrow heavily from this decision in their next case.
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Old 02-23-2014, 1:28 AM
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The involvement of the AG was mentioned during the oral arguments of Peruta in front of the 3 judge panel. Counsel for San Diego mentioned that they had put the AG on notice and the AG's office declined to participate. If there is any statute or civil procedure rule that may have given the AG's office some authority in this case I would consider it waived.
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Old 02-23-2014, 2:15 AM
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Change the thread title. Slip a "Could" at the beginning, or now that we are more in the know, swap "can't" for the "might".

As it is, it eludes to be stating it as a factual likelihood, yet the reality appears to not even be probable.
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If some level of government had that information, what would they do with it? How would having that info benefit public safety? How would it benefit law enforcement?
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Old 02-23-2014, 3:59 AM
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This is fascinating. And it is good and reassuring to hear that Kamala does not have options.

Frankly, her office saying that they are "reviewing" the idea of moving with the case was a bad political move. It suggests they have options when they don't. Even if in the end they say that they have no option in the case, she loses because then she was a nitwit for thinking she did. It'd be better for her politically if her office had said at the first that she couldn't do anything.

Now the fun part is speculating whether she can reach out to the "anonymous" judge on the court to ask for the en banc thus making her irrelevant to the question of pushing this further.

When I listen to those who know much more about the law than do I it sounds like the current Peruta decision would hold up to an en banc review. I'm more pessimistic in my relative ignorance but let's go with the optimistic view for now.

For Kamala's future in politics I think the best scenario is for a 9th Circus judge to request en banc. Then there is no need for her action. Then the 9th Circuit affirms/agrees with/whatever the 3-judge panel. At this point she would want to request cert, but she can simply say that she is not a party to the case - and since people will by then have forgotten her office's "review" statement she will skate with the fascists and won't further raise the ire of the pro-RKBA types.

Her best move is to get the "anonymous" judge to request the en banc. It just might happen. Thing is, however, that the "anonymous" judge is likely to look more like a joke in the court - looking that heavily agendized can't be all that good with in the court. I really suspect that if the judge requests the en banc this time that the request stands a reasonable chance of being denied.

I liked the Peruta win before, and I'm liking its durability even more at this time.

Mr. Peruta and his lawyers should be very proud of what they did and we should be grateful that there were two judges on that panel who really knew what they were doing.

I'm betting the conventional wisdom "out there" is still that the case will be appealed to SCOTUS (cert requested), but I don't see that the sheriff doing that and I don't know who else can.

A disaster for the fascists.

Edit: I'm beginning to speculate that we should consider throwing a bash this summer in honor of Peruta and his lawyers. This victory is looking more and more like an immense blow for freedom - and the freedom fighters deserve to be feted. Maybe invite Gura and his partner as well?
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