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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 01-14-2010, 5:24 PM
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Default GUN CARRY WIN! 'Peruta v. SD Co. & Sheriff Gore' - Motion to Dismiss DENIED!!!

The motion discusses open carry vs concealed carry and a states ability to determine the method of exercising the "bear" Right.

Motion to dismiss denied:
http://opencarry.mywowbb.com/forum12/36583.html

Background:
In 2008 Ed Peruta attempted to apply for a PC 12050 'License to Carry firearm' with the San Diego Co. Sheriff's Office. They denied the application stating he was not a "resident" of the county and his "good cause" was not good.

He filed suit in Federal Court in late 2009. Here is Ed's initial complaint:
http://opencarry.mywowbb.com/forum12/33300.html

I understand Ed has been in communication with some of the "right people" but is entirely funding his own case.
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Last edited by Liberty1; 01-14-2010 at 10:53 PM..
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Old 01-14-2010, 5:53 PM
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The docket from RECAP is here: http://www.archive.org/download/gov....78.docket.html

Here is the ruling on the motion to dismiss.

"Good Cause" and residency requirements in 12050 is at least subject to intermediate and possibly strict scrutiny.

This was a copycat case based on borrowing the pleadings in Sykes. This was not recommended but Mr. Peruta has gotten very lucky. This is likely to be a very large win.

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Last edited by hoffmang; 01-14-2010 at 8:02 PM.. Reason: Spelling.
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Old 01-14-2010, 5:53 PM
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Any potential issues between this case and the others that CGF is persuing?
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Old 01-14-2010, 5:55 PM
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I'm guessing next up will be a summary judgment motion of some sort followed by the district court placing the case on hold pending the resolution of McDonald?
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Old 01-14-2010, 6:05 PM
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This is just excellent...

SD Federal Denial...

http://opencarry.mywowbb.com/attachment.php?id=9605
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Last edited by 8-Ball; 01-14-2010 at 6:27 PM..
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Old 01-14-2010, 6:12 PM
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Quote:
In all cases, the analysis is informed by the same guiding principle–the right to travel “protects residents of a State from being disadvantaged, or from being treated differently, simply because of the timing of their migration, from other similarly situated residents.” Id. at 904 (citations omitted).

Whenever a state law burdens the right to travel, the court must apply strict scrutiny and ask whether the challenged law is “necessary to further a compelling state interest.” Id. at 904-05 & n.4 (citations omitted); accord Saenz, 526 U.S. at 499 (citing Shapiro v. Thompson, 394 U.S. 618, 634 (1969)). Accordingly, in the present case, the Court must engage in a two-step analysis: (1) determine whether Defendants’ alleged requirement of full-time residence penalizes certain individuals, such as Plaintiff, with respect to their right to travel; and (2) if it does, Plaintiff “must prevail” unless Defendant can
demonstrate that the requirement is “necessary to accomplish a compelling state interest.” See Soto-Lopez, 476 U.S. at 906 (plurality) (citations omitted); Saenz, 526 U.S. at 499 (citation omitted).

1. Does the requirement of full-time residence “penalize” Plaintiff?
Not all waiting periods and residency conditions are impermissible. Soto-Lopez, 476 U.S. at 903-06 (plurality). Rather, it is important to distinguish between “bona fide residence requirements, which seek to differentiate between residents and nonresidents,” and “residence requirements, such
Case 3:09-cv-02371-IEG-BLM Document 7 Filed 01/14/10 Page 17 of 18 - 09cv2371-IEG (BLM) as durational, fixed date, and fixed point residence requirements, which treat established residents differently based on the time they migrated into the State.” Id. at 903 n.3 (citations omitted).
In the present case, Plaintiff alleges he is being penalized because Defendants’ requirement of full-time residence “actually deters” him from traveling and spending time outside of San Diego. (Pl. Opp., at 15.) It is well-established “that a State may not impose a penalty upon those who exercise
a right guaranteed by the Constitution.” Harman v. Forssenius, 380 U.S. 528, 540 (1965) (citation omitted); accord Dunn v. Blumstein, 405 U.S. 330, 340-41 (1972). “Constitutional rights would be of little value if they could be ... indirectly denied, or manipulated out of existence.” Harman, 380 U.S.
at 540 (internal quotation marks and citations omitted). Taking Plaintiff’s allegations as true, it appears the “residency” requirement as applied by Defendants does actually deter individuals such as Plaintiff from exercising their right to travel in that they are being “penalized” for traveling and
spending time outside of San Diego by not being able to obtain a concealed weapon’s permit.

2. Does the requirement of full-time residence pass “strict scrutiny”?
Whenever a state law burdens the right to travel, the court must apply strict scrutiny and ask whether the challenged law is “necessary to further a compelling state interest.” Soto-Lopez, 476 U.S. at 904-05 & n.4 (plurality) (citations omitted); accord Saenz, 526 U.S. at 499 (citing Shapiro, 394 U.S.
at 634). The heavy burden of justification is on the State, and the court will closely scrutinize the challenged law in light of its asserted purposes. Dunn, 405 U.S. at 343. In the present case, Defendant has failed either to identify a “compelling state interest” or to demonstrate that the challenged law is
“necessary” to further that interest. Accordingly, the Court DENIES Defendant’s Motion to Dismiss as it relates to Plaintiff’s third cause of action for violation of his right to travel.

CONCLUSION
For the foregoing reasons, because Plaintiff’s complaint alleges sufficient facts to state claims for relief that are plausible on their face, the Court DENIES the Motion to Dismiss in its entirety.
If this analysis holds up, wouldn't this mean that an out of state CCW will be legal in California?
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Old 01-14-2010, 6:18 PM
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This is a huge win. I'm quite enjoying the order.
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Old 01-14-2010, 6:19 PM
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Quote:
Originally Posted by leelaw View Post
Any potential issues between this case and the others that CGF is persuing?
It's a mixed bag. This was the courts comment on incorporation:
Quote:
Because Heller involved a challenge to a District of Columbia statute, the Supreme Court there did not have to decide whether the Second Amendment also applied to the states. See id. at 2812- 13. No party has raised this issue in the present case either. Accordingly, because it appears that both parties agree that the Second Amendment applies in this case, the Court will proceed on that assumption, without deciding the issue at this time. The Court does note, however, that it is aware of the pre-Heller Ninth Circuit case law on this issue, as well as the post-Heller trend. Compare Fresno Rifle & Pistol Club, Inc., 965 F.2d 723, 731 (9th Cir. 1992) (concluding that until such time as United States v. Cruikshank, 92 U.S. 542 (1876), and Presser v. Illinois, 116 U.S. 252 (1886), are overturned, “the Second Amendment limits only federal action”) with Nordyke v. King, 563 F.3d 439, 457 (9th Cir. 2009), reh’g en banc granted, 575 F.3d 890 (concluding that “the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments”). It should also be noted that after rehearing Nordyke en banc, the Ninth Circuit vacated its submission of the case pending the Supreme Court’s disposition of Maloney v. Rice, 08- 1592; McDonald v. City of Chicago, No. 08-1521; and N.R.A. v. City of Chicago, No. 08-1497.
Sykes's motions are on hold due to the objection to incorporation Sac/Yolo made. No idea if San Deigo will now make that motion now or not.

This will help Palmer in DC on January 22 as it is a specific endorsement of Alan Gura's positions in both Sykes and Palmer (as the pleadings were largely copied from Sykes.)

-Gene
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  #9  
Old 01-14-2010, 6:20 PM
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Odd that San Diego didn't even bother to raise the incorporation question -- asleep at the wheel?
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Old 01-14-2010, 6:23 PM
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It seems like Judge Irma Gonzalez is assuming incorporation?? and just moving things along?? This puts her front and center in defining these 2nd A. issues for the 9th.

just saw Gene's post...
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Old 01-14-2010, 6:37 PM
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Quote:
Originally Posted by Liberty1 View Post
It seems like Judge Irma Gonzalez is assuming incorporation?? and just moving things along?? This puts her front and center in defining these 2nd A. issues for the 9th.

just saw Gene's post...
San Diego didn't argue against incorporation. Judges generally judge based on the pleadings.
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  #12  
Old 01-14-2010, 6:41 PM
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Quote:
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San Diego didn't argue against incorporation. Judges generally judge based on the pleadings.
Maybe their attorneys are closet Calguners? or they are just about to get "Leftwitched" for their mis-pleadings
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Old 01-14-2010, 7:38 PM
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Wow, that's cool. I'm assuming it that SD had a "senior moment" and forgot to mention the Nordyke situation (stayed / vacated pending McDonald).

If nothing else, this is going to make every other dept in this state pause and take a breath before they sign their next denial letter.

Compare this with the Santa Maria federal case, where there was obvious misconduct, include flat-out illegal activity, and the plaintiff is someone who more obvious "good cause" than any of the other people with CCWs issued by SMPD, and the case still ended up getting dismissed.

(I recognize that luck is a bit of a factor in both these outcomes.)
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Old 01-14-2010, 7:40 PM
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The Judge noted in the ruling Nordyke's vacated opinion and disposition; she made it clear that while 2A was not incorporated as against the states both parties are proceeding as if it was.
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Old 01-14-2010, 7:45 PM
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After reading the thread at OCDO it seems that Mr. Peruta should blow some public kisses towards Gura/SAF/CGF...
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Old 01-14-2010, 8:34 PM
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This part got me thinking:

Quote:
... it is important to distinguish between “bona fide residence requirements, which seek to differentiate between residents and nonresidents,” and “residence requirements, such as durational, fixed date, and fixed point residence requirements, which treat established residents
differently based on the time they migrated into the State.” (pp 17,18)
Could this argument be part of the challenge against the high-cap magazine law? Basically, established residents who owned high-cap magazines are treated different from those of us who moved in after the ban.

No?
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Old 01-14-2010, 9:24 PM
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I saw this earlier on OCDO.

If Peruta doesn't blow any kisses to CGF or Gura...
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Old 01-14-2010, 10:19 PM
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I think Mr. Peruta got very lucky to get a judge who is already on board with the "it's a fundamental right" concept.

My question now is, what's next?

Will SD really want to blow some relatively large amount of money to take this to trial, and potentially lose, and therefore go shall-issue and have to pay Mr. Peruta's legal fees? Or will they just issue him his permit, which I guess would make the whole case go away?

Also I have a feeling there may be a flurry of applications in SD in the immediate future. I hope SD has printed up enough applications.
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Old 01-14-2010, 10:27 PM
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Cool
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Old 01-14-2010, 10:31 PM
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Quote:
Originally Posted by CCWFacts View Post
Or will they just issue him his permit, which I guess would make the whole case go away?
I worry some about that outcome. It's partially why there are institutional plaintiffs in Sykes.

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Old 01-14-2010, 11:34 PM
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Quote:
Originally Posted by hoffmang View Post
I worry some about that outcome. It's partially why there are institutional plaintiffs in Sykes.

-Gene
Which is why, if Ed values the gun rights movement, he would, if offered, ask for a stipulated consent order ordering A) Shall-issue for everyone not otherwise prohibited from possessing firearms and B) no further residency restrictions. That way everyone wins.
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Old 01-14-2010, 11:50 PM
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I hope the right people are asking
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Old 01-15-2010, 5:28 AM
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Quote:
Originally Posted by Gray Peterson View Post
Which is why, if Ed values the gun rights movement, he would, if offered, ask for a stipulated consent order ordering A) Shall-issue for everyone not otherwise prohibited from possessing firearms and B) no further residency restrictions. That way everyone wins.
And if he got that, then everyone who wants a CA CCW could apply in SD and get one. That would be sweet! It would also mean hiring a few more clerks to process paper work, and handle the revenue coming in to the department. Somehow, I don't see the Hero of Ruby Ridge (appointed Sheriff Gore) being in favor of this outcome.
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Old 01-15-2010, 5:47 AM
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Is there anything I can do to help?
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Old 01-15-2010, 8:47 AM
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So wouldn't many of the findings made by the judge in that denial pretty much indicate what the final decision is likely to be?
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Old 01-15-2010, 9:36 AM
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So wouldn't many of the findings made by the judge in that denial pretty much indicate what the final decision is likely to be?
Pretty encouraging I would say. But as the judge indicated, all she was saying is that the plaintiff appeared to have valid claims, and that SDSO didn't make their case as to why it should not be heard.
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Old 01-15-2010, 9:58 AM
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Where do I get my application? Time to check out CalCCW, I have that site booked marked somewhere....
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Old 01-15-2010, 10:11 AM
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Quote:
Originally Posted by Untamed1972 View Post
So wouldn't many of the findings made by the judge in that denial pretty much indicate what the final decision is likely to be?
I think so. Although they approach the current motion-to-dismiss issue by looking at it in the best possible light for the plaintiff (see the Legal Standard section on pg. 3), they also said that although strict scrutiny should really apply on Peruta's key claims, the defendant (SD county/sheriff) wasn't even making arguments that passed the easier standard of intermediate scrutiny.

So, unless the defendant can substantially improve their arguments, or Ed's facts are just plain wrong, I'd say it is looking really-really good for Ed (and all of us) in terms of what the final decision might be.
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Old 01-15-2010, 10:32 AM
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As I posted on OCDO:

The issue in this case seems to be leading in only one of two directions. 1. California can be may issue with CCW as long as they allow unlicensed loaded open carry, or 2. California must issue CCW permits.

And:

If my understanding is correct, the judge also indicates that a person visiting from out-of-state still has the right to carry for the purposed of self-defense.

If this is the case there can only be so many possibilities.

1. California must accept out-of-state permits as valid and/or;
2. Non-resident concealed carry license permitted in a timely fashion (on-demand) or;
3. California can't ban unlicensed loaded open carry


because if none of the three above options existed then non-resident guests would not have a legal manner by witch to carry for the purpose of self-defense.

I could be wrong, but this is my understanding.
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Old 01-15-2010, 10:35 AM
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^^Theseus

I read it the same way. Look at my prior post where I ask a question about out of state CCWs being valid in CA.
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Old 01-15-2010, 10:41 AM
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Before chickens are counted, TBJ had some very favorable rulings from the judge in Santa Maria. Then they switched judges on us and it went to h*** in a handbasket.
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Old 01-15-2010, 12:16 PM
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Well I get to say "I told you so" regarding California's inability to discriminate against out-of-staters.

I'm in Tucson (permanent resident) and pack daily on my AZ CCW. This decision says that if I enter Cali packing concealed in possession of my AZ CCW card, in order to bust me they have to find a STRICT SCRUTINY-CAPABLE reason to disrespect my AZ CCW while banning me by statute from access to a Cali CCW.

And that's impossible, given how prevalent reciprocity between the various states is on CCW permit handling. If at least 3/4ths of the states have some reciprocity, Cali's total lack can't hold.

The last time I ended Cali on a day trip I packed. I guarantee you I will the next time as well.

One case that's missing as a citation is Ward v. Maryland, 1870. That's the case that bans cross-border discrimination of this sort under the 14th Amendment P&I clause. In 1872 the Slaughter-house decision backed the logic in Ward and then said that such cross-border issues are ALL that the P&I clause means.

Mr. Ward was a merchant from New Jersey who wanted to sell horse'n'buggy gear in MD. MD had an extra tax on out-of-state visiting merchants. Ward refused to pay it, went to Federal court to block the discrimination. The Supremes said that such cross-border discrimination violated his federally recognized right to travel and right to engage in commerce.

The logic is very similar to Saenz v. Roe in 1999, and surprisingly Saenz doesn't mention Ward. Ward is kind of a "forgotten case". I just left a message with Peruta's attorney suggesting he read it, because it's clear from the judge's comments that he has no clue regarding Ward.
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Old 01-15-2010, 12:20 PM
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It sounds like my out-of-state non-resident CCW's may allow me to CCW in California? Comments?
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Old 01-15-2010, 12:26 PM
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Quote:
Originally Posted by 1JimMarch View Post
I'm in Tucson (permanent resident) and pack daily on my AZ CCW. This decision says that if I enter Cali packing concealed in possession of my AZ CCW card, in order to bust me they have to find a STRICT SCRUTINY-CAPABLE reason to disrespect my AZ CCW while banning me by statute from access to a Cali CCW.
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It sounds like my out-of-state non-resident CCW's may allow me to CCW in California? Comments?
Does a mere ruling on a "motion to dismiss" give you guys the precidence that you think it does? I would think that it doesn't apply until it is a ruling on the final disposition of the case.
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Old 01-15-2010, 12:31 PM
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Originally Posted by tango-52 View Post
I don't see the Hero of Ruby Ridge (appointed Sheriff Gore) being in favor of this outcome.
Oh - I like that!

Maybe we can embellish it a bit (at the risk of invoking a corollary to Godwin's Law):

How did the Russkies do it?

The Fatherland's Most Glorious Hero of Ruby Ridge??

Lenin's Star Hero of Ruby Ridge??

.
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Old 01-15-2010, 12:34 PM
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It sounds like my out-of-state non-resident CCW's may allow me to CCW in California? Comments?
I don't think so. AZ does not recognize out of state CCWs issued to AZ residents. Now, if you were not a CA resident, then maybe.

But as ke6guj points out, I'm not sure we are there yet.
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Old 01-15-2010, 12:36 PM
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Originally Posted by Purple K View Post
It sounds like my out-of-state non-resident CCW's may allow me to CCW in California? Comments?

I think generally most states require residents of their state to have a permit from that state. But as long as it's shall issue then it's generally not an issue.
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Old 01-15-2010, 12:42 PM
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While this is a HUGE step in the "right direction"... I don't see this case yet having any real precedential value and it's not yet binding. It's just that the Motion to Dismiss was denied.

The trial ought to be interesting...
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Old 01-15-2010, 12:47 PM
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Yeah, I don't think this "cross border discrimination ban" will help you if you're a *Cali* resident with an AZ (or any other) state CCW.

It helps me as an AZ resident packing in Cali on an AZ CCW. And it helps Mr. Peruta because he's being discriminated against as a part-time Conn. resident.

ke6guj: it does when the US Supreme Court has said THE SAME DAMN THING all the way back in 1870:

http://supreme.justia.com/us/79/418/case.html

States cannot discriminate against visiting residents of other states on the handling of a Federally recognized civil right. Since Heller, "bearing arms" has been so recognized. In order for Cali to discriminate against visitors, they need an argument for doing so that can withstand strict scrutiny review.

They don't have one.
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Old 01-15-2010, 12:48 PM
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Quote:
The trial ought to be interesting...
Trial hell, *discovery* will be a hoot and a half...
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