Some movement in Peruta

Could this be some sort of circumspect message of hint to the US Supreme Court about the Circuit's intended resolution of the case?

There is more to it than that. Two other cases were decided by the same 3 judge panel (Richards v. Prieto and Baker v. Kealoha). On the same day as the Peruta order mentioned in the article, the panel issued orders deferring consideration of the Richards and Baker en banc appeals until Peruta is resolved.

The Peruta decision presents a problem for the 9th Circuit Court of Appeals. Three judge panels are bound by prior three judge panel decisions unless they are overturned en banc or by the US Supreme Court. The prior panel decision was US v. Chovan (en banc petition denied). Peruta conflicts with the decision in Chovan which necessitates an en banc rehearing of the case in order to resolve the conflict.

If the 3 judge panel moots the Peruta decision and depublishes it then Peruta no longer creates an in-circuit split. The focus then shifts to Richards.

Baker presents a different question. Unlike California, Hawaii police chiefs can issue permits for both open and concealed carry. Since Hawaii is not required to issue concealed carry permits, Baker can be issued an Open Carry permit which would not conflict with the Chovan decision.

http://CaliforniaRightToCarry.org

So would it be a good development for gun rights if Peruta were mooted?

As I understand it...

The Sheriff in Peruta stated he wasn't going to ask for en banc. In response, Harris, the state AG, put in an apparently problematic request to be given standing to ask for en banc in the case. This request by the Court seems to me to mean her request isn't valid or they would just go with it instead.

So, they need the San Diego Sheriff to formally decide one way or the other if he considers it moot, so they can address Richards and Baker which are pending Peruta.

I may be misremembering but I think the Sheriff in Richards has, I believe, said he will ask for en banc, and I think the Chief in Baker said he would too. So that looks like the next step.

I think the stuff about mootness is a clever Hail-Mary by the gun-ban coalition. Obviously the normal result of deciding not to further- appeal a court decision is that the decision stands. And deciding to comply with a decision as soon as it is issued, rather than foot-dragging until the time limit for further appeals has expired is called "being a good citizen who obeys the decision of the court."

If a loser can moot a case by announcing he will comply with the decision, then no defendant can ever lose a case! He must simply wait for an adverse decision, then announce that he intends to comply, so therefore the case is moot, so the adverse decision doesn't exist at all! Then the very next day said defendant may resume his erring ways, since he cannot be held in contempt for disobeying a decision which never issued in a case which (being moot) never legally decided anything!

So asking the Sheriff who accepts the decision of the court to agree that by doing so he moots the case is extremely bogus-- an invitation to the defendant who lost before the panel to request a "do over" as suggested by would-be intervenors who actually have no standing in the case but wish the defendant had won and will suggest anything, no matter how absurd, to prevent the decision from taking effect.

Is there anything Peruta and his attorneys can do to object to this scheme? It seems to me the panel issuing the "order to explain why obeying the court does not moot the case" is behaving rather badly.

How does Peruta conflict with Chovan? The fact set seems completely different.

The ban on possession for those convicted of DV doesn't seem to relate to the "good cause" requirement causing effective denial of carry in some fashion.

Not a hopeful development.

I guess Gore will be getting lots of pressure to start issuing (which I don't think he is) based on self-defense, as it would enable Lost Angles and others to keep doing what they are doing. The progressives would limit the damage, possibly sink Drake and zip Richards and Baker.

It appears that some folks haven't read the en banc briefs in Peruta.

The 9th Circuit Court of Appeals has created a webpage devoted exclusively to the Peruta en banc appeal. It can be found here -> http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000722

I have a website where I track the progress of Peruta, Richards, Baker and others. Simply click on the page tabs at the top of my site -> http://CaliforniaRightToCarry.org

I have just posted a much longer explanation of the possible reasons and ramifications of the Peruta May 1st Order regarding possible mootness. -> http://secure.campaigner.com/Campaigner/Public/t.show?6knxl--3kcaa-fox07k0&_v=2

There is also this article at Law.com -> http://www.law.com/sites/jamesching/2014/05/03/ninth-circuit-issues-order-in-peruta-gun-permit-case-requiring-sheriff-to-clarify-his-status-on-appeal/

US v. Chovan was not limited to the facts of that case. Chovan adopted the two-step historical inquiry analysis framework used by most of the Federal courts including the 7th Circuit. As the prior precedent, all subsequent three judge panels are required to use that two-step framework in deciding Second Amendment cases.

Instead of complying with the Chovan decision, Judge O'Scannlain applied his own test which was vacated in Nordyke v. King. It really doesn't matter what alternate test or reasoning was applied in Peruta. It failed to comply with the Chovan decision and therefore created an in-circuit split which must be resolved under 9th Circuit rules.

One way to resolve the in-circuit split is for the Peruta decision to become moot, vacated and unpublished.

Judge O'Scannlain applied the "substantial burden" test he created in Nordyke v. King to decide Peruta. The 9th Circuit Court of Appeals vacated that test for deciding Second Amendment cases but the Second Circuit Court of Appeals has adopted the vacated substantial burden test in striking down the Kalchalsky concealed carry appeal.

Under the substantial burden test only those laws which present a substantial burden to the Second Amendment right are subject to heightened scrutiny. All other gun-control laws get a free pass and are upheld.

Under the Two-Step historical analysis framework adopted in Chovan, any law that impacts the Second Amendment right as it was understood in 1791 is subject to heightened scrutiny no matter how slight the impact.

As importantly, Chovan established a high threshold for Intermediate Scrutiny. Unlike the Second and Third Federal Circuits which merely accepted the fact that the laws were passed to satisfy their version of heightened scrutiny, the 9th Circuit under Chovan requires that the government actually prove its case.

The one catch is that the Peruta decision would have gone the other way had the historical framework from Chovan been applied.

The law challenged in Chovan was a Federal law. As such, the controlling date was 1791 and the controlling interpretation of the Second Amendment is that which existed in 1791.

The Peruta case involves the interpretation of a state law. The McDonald court incorporated the Heller decision to all states and local governments. Challenges to state and local laws are subject to the Heller decision and are subject to what the adopters of the 14th Amendment in 1868 thought the Second Amendment meant.

The Heller court said that concealed carry can be prohibited (despite Peruta's modern interpretation) and California had a blanket prohibition on concealed carry when the 14th Amendment was adopted excepting no one but travelers while actually on a journey.

The short answer to your question depends upon whether or not a desire for a government issued permission slip to carry a handgun concealed is an overriding desire to you.