California Right To Carry
Regular Member
Peruta v. San Diego Oral Arguments set for June 15th
WHEN AND WHERE?
The 9th Circuit has voted to rehear Peruta v. San Diego en banc. Oral arguments consolidated with Richards v. Prieto will take place at 1:00 pm on June 15, 2015 in Courtroom 1, 3rd Floor Rm 338, James R. Browning U.S. Courthouse, San Francisco – 30 minutes per side – Peruta and Richards to split 30 minutes. No word as of April 5, 2015 who will be arguing the other side. The denial of AG Harris' petition to intervene was vacated and so odds are she will be arguing for the other side.
WHAT JUDGES WILL SIT ON THE EN BANC PANEL?
9th Circuit Chief Judge Thomas was the dissenting judge in the Peruta three judge panel decision which has now been vacated by a majority vote of the 29 active judges on the 9th Circuit Court of Appeals. Chief Judge Thomas will preside over the en banc hearing. Ten other active judges will be chosen at random to join the Chief Judge on the en banc panel. Odds are we will not know who those judges are until June 8th. Typically the names of the judges on panels are released to the general public on the Monday of the week preceding argument. I do not know how judges are randomly chosen.
WHAT HAPPENS AFTER ORAL ARGUMENT?
At the conclusion of each day’s argument, the judges on each panel confer on the cases they have heard. Each judge expresses his or her tentative views and votes in reverse order of seniority. The judges reach a tentative decision regarding the disposition of each case and whether it should be in the form of a published opinion. The presiding judge then assigns each case to a judge for the preparation and submission of a disposition.
WHEN WILL THERE BE A DECISION?
We've only had one Second Amendment case go before an en banc panel, Nordyke v. King. The first time a three judge panel decision was vacated isn't of much help because the en banc panel waited for the McDonald v. Chicago decision by SCOTUS. On November 28, 2011 former Chief Judge Kozinski filed an order that the case would again be heard en banc. The timeline was: Argued En Banc March 19, 2012 - Submitted May 24, 2012 - Filed June 1, 2012
If I recall correctly, the reason for the departure from the typical procedure of deciding the case and assigning it to a judge for a majority opinion at the end of the day oral argument takes place was because the case was sent to mediation. The County of Alameda, in the 13th year of litigation, had suddenly discovered that its local ordinance did not prohibit gun shows at the Alameda County Fairgrounds and so Nordyke isn't much help to us. There is no deadline for a decision in an en banc hearing and it is highly unlikely that AG Harris is going to suddenly discover that "may issue" actually means "shall issue."
Despite all the procedural BS that has led up to this, I don't think that a decision from the en banc panel will take long. One need only read Judge Thomas' dissent in Peruta to understand why?
Quoting Judge Thomas from his dissent in Peruta:
"The majority's first — and crucial — mistake is to misidentify the "conduct at issue." Chester, 628 F.3d at 680. The majority frames the question as "whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense." This is certainly an important issue, but it is not the question we are called upon to answer. The Plaintiffs are not seeking a general license to carry firearms in public for self-defense — they are seeking a license to carry concealed firearms in public."
"In sum, employing the analysis prescribed by the Supreme Court, the answer to the historical inquiry is clear: carrying a concealed weapon in public was not understood to be within the scope of the right protected by the Second Amendment at the time of ratification. This conclusion is in accord with Heller's recognition that there were "longstanding prohibitions" on firearms that were "presumptively lawful,"...and the Supreme Court's observation in Robertson that "the right of the people to keep and bear arms ... is not infringed by laws prohibiting the carrying of concealed weapons,"... See Peterson, 707 F.3d at 1211. Because the right asserted is not protected by the Second Amendment, our inquiry should be at an end: San Diego County's good cause requirement for a person to carry a concealed weapon in San Diego County is constitutional."
And like a row of dominoes, as Peruta/Richards falls so fall every other concealed carry case pending before the 9th Circuit Court of Appeals or working its way on up. Next in line will be my Open Carry lawsuit, Nichols v. Brown, wherein this comment from Judge Thomas' dissent will be put to the test:
"Although all the nineteenth-century cases cited by the majority cautioned against restrictions on the open carrying of weapons, none of them — except the discredited, outlier Bliss — suggests that restrictions on carrying concealed weapons implicate the Second Amendment. See Chandler, 1 La.Ann. at 490; Nunn, 1 Ga. at 251; Reid, 1 Ala. at 616-17. And nothing in these cases or Chase's Blackstone even hints that a restriction on carrying concealed weapons would become invalid if restrictions were placed on open carry. Rather, they suggest that restrictions on concealed carry are always valid, while there are limits to restrictions on open carry."
And what are those restrictions on Open Carry in California? Well, if one lives in an incorporated city or in prohibited places of unincorporated county territory then one cannot carry a loaded firearm, openly or concealed, on any part of his residential property including the curtilage of his home and even extending into one's house or other structures on his property absent a substantial barrier to entry because the California courts in 1976 interpreted the private property exemption to mean that one can have, but not carry, a loaded firearm on his property. With the possible exception of an antique handgun, one is prohibited from openly carrying a handgun in his motor vehicle. Putting a modern, unloaded handgun inside of a fully enclosed locked container exempts one from the recently enacted ban on openly carrying unloaded handguns but not from the ban on carrying a concealed weapon without a permit as a handgun, even an unloaded one, carried in a container is carried concealed and can only be transported subject to a limited number of statutory exemptions leaving only unloaded long guns to be "carried" in one's motor vehicle. Step outside of your motor vehicle in an incorporated city with a loaded or unloaded long gun which is not fully encased and you breaking a law.
If one is outside of his motor vehicle in a prohibited area (where the discharge of a firearm is prohibited) in unincorporated county territory then one is limited to the Open Carry of an unloaded long gun, or antique unloaded handgun.
For me to prevail on my Second Amendment challenge, all that is required is for the appellate court to conclude that I have the Second Amendment right to openly carry a loaded flintlock rifle on my porch.
And I did not limit my lawsuit to the Second Amendment.
WHEN AND WHERE?
The 9th Circuit has voted to rehear Peruta v. San Diego en banc. Oral arguments consolidated with Richards v. Prieto will take place at 1:00 pm on June 15, 2015 in Courtroom 1, 3rd Floor Rm 338, James R. Browning U.S. Courthouse, San Francisco – 30 minutes per side – Peruta and Richards to split 30 minutes. No word as of April 5, 2015 who will be arguing the other side. The denial of AG Harris' petition to intervene was vacated and so odds are she will be arguing for the other side.
WHAT JUDGES WILL SIT ON THE EN BANC PANEL?
9th Circuit Chief Judge Thomas was the dissenting judge in the Peruta three judge panel decision which has now been vacated by a majority vote of the 29 active judges on the 9th Circuit Court of Appeals. Chief Judge Thomas will preside over the en banc hearing. Ten other active judges will be chosen at random to join the Chief Judge on the en banc panel. Odds are we will not know who those judges are until June 8th. Typically the names of the judges on panels are released to the general public on the Monday of the week preceding argument. I do not know how judges are randomly chosen.
WHAT HAPPENS AFTER ORAL ARGUMENT?
At the conclusion of each day’s argument, the judges on each panel confer on the cases they have heard. Each judge expresses his or her tentative views and votes in reverse order of seniority. The judges reach a tentative decision regarding the disposition of each case and whether it should be in the form of a published opinion. The presiding judge then assigns each case to a judge for the preparation and submission of a disposition.
WHEN WILL THERE BE A DECISION?
We've only had one Second Amendment case go before an en banc panel, Nordyke v. King. The first time a three judge panel decision was vacated isn't of much help because the en banc panel waited for the McDonald v. Chicago decision by SCOTUS. On November 28, 2011 former Chief Judge Kozinski filed an order that the case would again be heard en banc. The timeline was: Argued En Banc March 19, 2012 - Submitted May 24, 2012 - Filed June 1, 2012
If I recall correctly, the reason for the departure from the typical procedure of deciding the case and assigning it to a judge for a majority opinion at the end of the day oral argument takes place was because the case was sent to mediation. The County of Alameda, in the 13th year of litigation, had suddenly discovered that its local ordinance did not prohibit gun shows at the Alameda County Fairgrounds and so Nordyke isn't much help to us. There is no deadline for a decision in an en banc hearing and it is highly unlikely that AG Harris is going to suddenly discover that "may issue" actually means "shall issue."
Despite all the procedural BS that has led up to this, I don't think that a decision from the en banc panel will take long. One need only read Judge Thomas' dissent in Peruta to understand why?
Quoting Judge Thomas from his dissent in Peruta:
"The majority's first — and crucial — mistake is to misidentify the "conduct at issue." Chester, 628 F.3d at 680. The majority frames the question as "whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense." This is certainly an important issue, but it is not the question we are called upon to answer. The Plaintiffs are not seeking a general license to carry firearms in public for self-defense — they are seeking a license to carry concealed firearms in public."
"In sum, employing the analysis prescribed by the Supreme Court, the answer to the historical inquiry is clear: carrying a concealed weapon in public was not understood to be within the scope of the right protected by the Second Amendment at the time of ratification. This conclusion is in accord with Heller's recognition that there were "longstanding prohibitions" on firearms that were "presumptively lawful,"...and the Supreme Court's observation in Robertson that "the right of the people to keep and bear arms ... is not infringed by laws prohibiting the carrying of concealed weapons,"... See Peterson, 707 F.3d at 1211. Because the right asserted is not protected by the Second Amendment, our inquiry should be at an end: San Diego County's good cause requirement for a person to carry a concealed weapon in San Diego County is constitutional."
And like a row of dominoes, as Peruta/Richards falls so fall every other concealed carry case pending before the 9th Circuit Court of Appeals or working its way on up. Next in line will be my Open Carry lawsuit, Nichols v. Brown, wherein this comment from Judge Thomas' dissent will be put to the test:
"Although all the nineteenth-century cases cited by the majority cautioned against restrictions on the open carrying of weapons, none of them — except the discredited, outlier Bliss — suggests that restrictions on carrying concealed weapons implicate the Second Amendment. See Chandler, 1 La.Ann. at 490; Nunn, 1 Ga. at 251; Reid, 1 Ala. at 616-17. And nothing in these cases or Chase's Blackstone even hints that a restriction on carrying concealed weapons would become invalid if restrictions were placed on open carry. Rather, they suggest that restrictions on concealed carry are always valid, while there are limits to restrictions on open carry."
And what are those restrictions on Open Carry in California? Well, if one lives in an incorporated city or in prohibited places of unincorporated county territory then one cannot carry a loaded firearm, openly or concealed, on any part of his residential property including the curtilage of his home and even extending into one's house or other structures on his property absent a substantial barrier to entry because the California courts in 1976 interpreted the private property exemption to mean that one can have, but not carry, a loaded firearm on his property. With the possible exception of an antique handgun, one is prohibited from openly carrying a handgun in his motor vehicle. Putting a modern, unloaded handgun inside of a fully enclosed locked container exempts one from the recently enacted ban on openly carrying unloaded handguns but not from the ban on carrying a concealed weapon without a permit as a handgun, even an unloaded one, carried in a container is carried concealed and can only be transported subject to a limited number of statutory exemptions leaving only unloaded long guns to be "carried" in one's motor vehicle. Step outside of your motor vehicle in an incorporated city with a loaded or unloaded long gun which is not fully encased and you breaking a law.
If one is outside of his motor vehicle in a prohibited area (where the discharge of a firearm is prohibited) in unincorporated county territory then one is limited to the Open Carry of an unloaded long gun, or antique unloaded handgun.
For me to prevail on my Second Amendment challenge, all that is required is for the appellate court to conclude that I have the Second Amendment right to openly carry a loaded flintlock rifle on my porch.
And I did not limit my lawsuit to the Second Amendment.
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