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Thoughts on the 9th Circuit case -- where do we go from here?
The county has 14 calendar days from the date of the ruling to move for rehearing en banc. If the county fails to move, any judge of the court, of their own volition, move for such rehearing within 21 days of the ruling. This seems to fit the grounds for such a motion, in particular conflict with other circuits and an issue of pressing national importance. A majority of the court can vote to grant.
En banc: normally, ruling are handed down by 3-judge panels. En banc in all other circuits means that all of the judges of the court take part and vote, after rehearing the matter. The 9th is so large, however (27 active-duty judges) that it has adopted a special rule. Ten judges are chosen at random, plus the chief judge (Alex Kosinski, a supporter of the 2A). For whatever it's worth, the 27 active-duty judges divide into 18 Democratic appointments and 9 Republican ones.
To complicate things, the Circuit can also vote to have a true en banc, with all 27 judges participating.
Once the en banc panel is chosen, it votes on whether to have additional briefing or argument. They almost always for for additional argument, I don't know about briefing.
If the en banc court reverses the panel ruling here, it'd make a really nice case for the Supreme Court (and maybe even if it upholds it). Big circuit split -- 7th and 9th Circuits taking a broad view of the right to bear arms outside the house, several other circuits saying "not until the Supreme Court orders us to do so." The panel decision has a great exploration of the issue, and is 77 pages long; the dissent is 40 pages, as I recall, and clearly presents the argument to the contrary. An en banc ruling would further flesh things out, with input from 11 (or 28) judges.
UPDATE: thinking it over ... en banc upholds panel decision, the result is a clear circuit split, well hashed-out, good candidate for Supreme Court. BUT since the good guys won, they cannot ask the Supreme Court to review. En banc reverses panel, less of a circuit split (there's still the Seventh Circuit, which recognized that the 2A applies outside the house, good guys lost, so they can seek review. There may also be collateral effects, in that other cases seeking cert. now or in the near future can point to the (at least temporary) split between the 7th and the 9th and the other circuits that refuse to apply Heller/McDonald outside the home.
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The 9th Circuit has the true en banc rule on paper, but I was under the impression it's never actually used it since the partial en banc was first established. Barring some /extraordinarily/ unlikely random selection for the en banc, it's really hard to imagine this being the case that'd call for it.
I think San Diego will try for en banc. I do NOT think they'll try to take it to the Supremes if they lose at en banc or are denied an en banc hearing. Right now the votes are the wrong way for the grabbers; this is also why Chicago didn't appeal Moore.
What happens now in the 9th may be moot if the Supremes decide to take up the rather similar Drake case out of New Jersey, another challenge to may-issue discrimination. The ruling in Peruta probably boosts the odds that Drake will be heard and if that happens there's probably no need to litigate Peruta further until the Supremes have the final word on this class of mess.
Another thing. It's impossible for a US citizen in another US state to score a California CCW or legally pack in California in any form. This isn't a local policy problem, it's a state law problem...as an AL resident these days no Cali sheriff can issue to me even if they wanted to. So if Peruta is in effect as it appears to be right now, and I were to visit Cali and pack on my AL CCW, I can't see how I could be successfully prosecuted. Charged, sure, but not prosecuted...because the US Supreme Court has a flat ban in place on states discriminating against visiting US citizens, in the Ward v. Maryland case (1870) and Saenz v. Roe (1999).
Hawaii actually supports out-of-state applicants by statute, so to make a claim that my rights were violated I'd have to go apply there and get denied first. But in my case, I don't even need to do that in California because I'm discriminated against by statute.
Minus the BS? It seems like a natural to get the SCOTUS to recognize 'shall issue', and once shall issue is accepted to transition to Constitutional Carry.
Once that happens, you get the SCOTUS to acknowledge that the Miller case hinged on 'no evidence being presented' that certain weapons were useful to the militia, and then... NFA '34 falls like the house of tyrannical cards that it is.
This ruling is great stuff and I hope it goes on to destroy as much of the grabber agenda as possible but with all the CCW matters let's not forget that the main issue - that of basic possession - be affirmed.
Both Heller and McDonald - unfortunately - were based on the premise of obtaining some kind of approval from the authorities and not the free exercise of a natural right. The small crack left to the grabbers ("reasonable" regulation) will be used to ban anything they can think of.
This is in line with some European and Third World practice which "permits" a carrying of some rinky-dink .32 or .25 ACP after gobs of training, licensing and large fees (and maybe bribes) being completed. What use is it to gain a "right" subject to the whims of some bureaucrat and lose a natural right enshrined in the Constitution?
Don't get me wrong, I'm all for CCW but the long-standing restrictions of New York's Sullivan Law, California's "detachable magazine" regs and the banning of scary-looking guns and larger magazines in Liberalandia must be challenged and overturned. First things first!
Nor'Easter,
You have it backwards. Shall-issue CC has demonstrated itself to be the single best first step to overturning the rest of the house of cards.
Shall-issue enables more people to have a stake in gun rights and vote that way. More pro-gun voters means more pro-gun elected officials and better court appointments. We see that in shall-issue states loosening carry regs and legalizing suppressors and such.
Further, right or wrong the Courts do consider public opinion, and more carriers means more pro-gun public opinion, which means better rulings on things like the NFA. The 9th had to be aware that in their Circuit they had 2 Con Carry states and all the rest but for Cali and HI shall issue with -zero- of the negative claims of the anti-gunners.
The change from "may issue" to "shall issue" is a big change in that the arbitrary nature of the requirements not get to be widely visible to the voters. If you are denied for "no reason to carry" there is no real way to force the issue, but if the rules are published then you can met the qualifications and the option of denial is not present. Based on the carefulness of the ruling I suspect that this decision was well thought out and will stand review of all of the judges.
Why would a loss at the en banc level make Supreme Court acceptance even more likely (from above)?
Drake is a better case for cert because the respondent is a state, not a county.
Same issue, more oomph.
Either way, this needs to be decided while the Court is friendly to the entire Bill of Rights.
Is the Supreme Court currently considering whether to take up any of the cases now causing the circuits split?
Other cases: Woolard v Sheridan, 4th Circuit, Cert denied.
Kachalsky v Cacace, 2nd Circuit, Cert denied.
I have forgotten the name of the 3rd Circuit case.
A reminder. This situation is almost identical to Nordyke and McDonald. San Diego is statist Republican and not Democrat in the main. They've already said they'd ask for en banc. If they didn't a single anti judge will ask for it. The key question is whether a majority will vote to take it to the 11 judge panel as reversing does give the good guys control on a bad draw and a stronger win on a good draw.
I expect Drake just gets taken and an en banc 9th holds here until an opinion in 2015 from SCOTUS.
-Gene
The 3rd case seems to be Drake v Jerejian (was Filko); petition for cert filed Jan 9, 2014.
http://www.scotusblog.com/case-files/cases/drake-v-jerejian/
Has Drake asked for cert? If so, when is a response expected?
Sheriff Gore announced 2/21 that San Diego will NOT appeal Peruta.
A judge at 9th Circuit may still request rehearing.
The crux of it seems to be that since California has outlawed open carry, there is no way the citizen can exercise the right to bear arms.
The dissent seems to acknowledge that, but says the regulatory scheme wrt concealed carry was the only issue before the court.
The en banc panel will likely overturn on that quibble, and a new action will have to be brought. JMHO.