Peruta: Update - Clement enters

[Crom]

Crom, I love your optimism but hoping for a win in the 9th seems overly optimistic does it not? Even if they know they'll get reversed I think they'll punt it up to scotus just because they don't want to be the ones to make that call. It is the ninth after all, what's one more reversal?

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Connor, I don't know for sure. In retrospect, it was very unreasonable for me to hope for a win at trial court. However, I do think there is at least a chance to win here. Let me give three examples of why I think this.

First take Heller. Remember that Heller lost at trial court, won on Appeal and was affirmed by SCOTUS. (Loss -> Win -> Win)

Second Let's look some text from McDonald. The bold text illustrates my point.

The District Court rejected plaintiffs' argument that the Chicago and Oak Park laws are unconstitutional. See App. 83-84; NRA, Inc. v. Oak Park, 617 F. Supp. 2d 752, 754 (ND Ill. 2008). The court noted that the Seventh Circuit had "squarely upheld the constitutionality of a ban on handguns a quarter century ago," id., at 753 (citing Quilici v. Morton Grove, 695 F. 2d 261 (CA7 1982)), and that Heller had explicitly refrained from "opin[ing] on the subject of incorporation vel non of the Second Amendment," NRA, 617 F. Supp. 2d, at 754. The court observed that a district judge has a "duty to follow established precedent in the Court of Appeals to which he or she is beholden, even though the logic of more recent caselaw may point in a different direction." Id., at 753.

The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank, 92 U. S. 542 (1876), Presser v. Illinois, 116 U. S. 252 (1886), and Miller v. Texas, 153 U. S. 535 (1894)—that were decided in the wake of this Court's interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases, 16 Wall. 36 (1873). The Seventh Circuit described the rationale of those cases as "defunct" and recognized that they did not consider the question whether the Fourteenth Amendment's Due Process Clause incorporates the Second Amendment right to keep and bear arms. NRA, Inc. v. Chicago, 567 F. 3d 856, 857, 858 (2009). Nevertheless, the Seventh Circuit observed that it was obligated to follow Supreme Court precedents that have "direct application," and it declined to predict how the Second Amendment would fare under this Court's modern "selective incorporation" approach. Id., at 857-858 (internal quotation marks omitted).

So understanding the operating principals of the different levels of the federal courts is very important. In McDonald the district judge did his job as he was bound by established precedent, even though "the logic of more recent caselaw may point in a different direction."

Reading the next McDonald quote tells us that the Seventh Circuit declined to opine on what SCOTUS would do, but they could have formed an opinion, and that is the point.

My last example is what happened in Nordyke IV when the 9th cir. incorporated the 2A through the 14A due process clause. They formed an opinion, and a correct one at that.

It's anybody's guess as to what's going to happen. But why not? Why wouldn't the Peruta 3-judge panel form an opinion and help define the core of the 2A?

I guess it all depends on the Judges and of course the attorneys and legal arguments.

[wash]

[Kharn]

Wash,
So how do you think Clement will harm the RKBA in CA? Lawyers argue for their client's interests, even if last week they were on the opposite side of the issue.

[wash]

If it's the wrong case and SCOTUS doesn't want to hear it, we get screwed.

[Crom]

[...] Peruta lost.

Every single carry case thus far has lost at trial court.

Now Clement comes in? What happens if they lose?

It doesn't matter, the case will get appealed either way. What matters are the sound legal arguments that are made before the court.

News flash: Ed Peruta isn't the right plaintiff for this case.

Why do you say this? He is a non-prohibited person who was denied his permit to carry for self defense?

they don't have any of the residency issues that Peruta has

The county folded on that argument conceding that he is a resident. This is old news.

I'm sorry to say this but Ed Peruta set back California carry about 18 months and Clement might kill it.

I recommend that you check your facts and get informed then form a different opinion. If you don't like they guy that's one thing but at least try to be correct in what you post.

[wash]

Think about it.

Realize that we would have lost McDonald v. Chicago if NRA's case had been chosen for cert.

This ain't checkers.

[wash]

Not everything has to win at SCOTUS but Peruta was losing in San Diego while Sykes was busy winning in Sacramento...

[wildhawker]

I'm with Al (and the rest of you): Big Guns. The Court likes the man. He was a good SG even if we did not agree with him all the time.

Sure, but there's something else. It's not what, but when.

-Brandon

[1BigPea]

Interesting, to me this seems to be a good thing.

[mdimeo]

Realize that we would have lost McDonald v. Chicago if NRA's case had been chosen for cert.

Nah. Thomas would have written exactly the same concurrence, and the result would have been the same.

[OleCuss]

Nah. Thomas would have written exactly the same concurrence, and the result would have been the same.

Actually, it is not at all clear that Thomas would have concurred.

If the NRA had gotten cert then Gura may not have gotten time to argue before the court at the same level - either in writing or in orals.

Gura did not make his P or I argument just because he liked it or wanted to see if he could get incorporation under P or I and thus get P or I generally accepted in jurisprudence. It appears highly likely that Gura figured that getting four justices to vote for incorporation under substantive due process was nearly a slam dunk. The problem may have been that Thomas wasn't going to go along with the substantive due process but would buy a P or I argument. So Gura made the substantive due process argument in his writings along with the P or I argument - and when the NRA took away his time for doing the due process orals he did the P or I orals.

Net effect is that the expected four votes under due process came in and Thomas bought the P or I argument as a concurrence.

But if the NRA's case had gotten cert the P or I argument probably would not have been made and the Thomas concurrence based on the P or I argument would not have been written - and it is not at all clear he would have voted for incorporation under due process.

[Peaceful John]

Does this mean that the NRA or some other (important) party thinks this case has significant implications beyond California?

Someone correct me if I'm wrong, but doesn't Peruta contend that "self-defense" is cause to issue a license to carry? If that is the case, then, yes, this might be important.

First, self-defense doesn't stop at your front door. It is arguably more likely that self-defense will be required outside the home. This bears on "bear".

Second, "sensitive areas" are impacted. How can the law-abiding who arm themselves for self-defense be disarmed when in a school zone that does not insure disarmament of the non-law abiding? One would think that sensitive areas would need to be clearly defined to areas where there is one access / egress point and *everyone* is checked at the limits of technology.

Others will doubtlessly expand this list, but if Peruta only helps to establish those two points it'll probably be worth Mr. Clement's effort.

[Connor P Price]

Connor, I don't know for sure. In retrospect, it was very unreasonable for me to hope for a win at trial court. However, I do think there is at least a chance to win here. Let me give three examples of why I think this.

First take Heller. Remember that Heller lost at trial court, won on Appeal and was affirmed by SCOTUS. (Loss -> Win -> Win)

Second Let's look some text from McDonald. The bold text illustrates my point.





So understanding the operating principals of the different levels of the federal courts is very important. In McDonald the district judge did his job as he was bound by established precedent, even though "the logic of more recent caselaw may point in a different direction."

Reading the next McDonald quote tells us that the Seventh Circuit declined to opine on what SCOTUS would do, but they could have formed an opinion, and that is the point.

My last example is what happened in Nordyke IV when the 9th cir. incorporated the 2A through the 14A due process clause. They formed an opinion, and a correct one at that.

It's anybody's guess as to what's going to happen. But why not? Why wouldn't the Peruta 3-judge panel form an opinion and help define the core of the 2A?

I guess it all depends on the Judges and of course the attorneys and legal arguments.

I definitely see where your coming from. The reason I'm skeptical is because this is the 9th rather than the 7th, and look at how long it took to get Nordyke only marginally right. Maybe I've got a touch of BGOS, who knows.

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[Rossi357]

IMHO
I think the legislative intent regarding concealed carry was to have the sheriff weed out the dirty, sneaky people from concealing their firearms. Men of good moral character could carry concealed. Honorable men carried their firearms in the open.
Irregardless of legislative intent regarding concealed carry, and AB144, I think the lower courts will use rational basis till SCOTUS says otherwise.
I also think that Ezell would have lost but for the fact that Chicago required qualifing at a gun range.

[Glock22Fan]

I looked up BGOS and only found two definitions:

*****BGOSBurton Global Open Series (snowboarding competition)

**BGOSBarry Graham Oil Service (Alabama)

I must admit I am puzzled by the reference here.