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« Peruta v. San Diego argument today | Main | Judge who awarded atty fees to Lucky Gunner explains his ruling »

Peruta after action appraisal

Posted by David Hardy · 17 June 2015 08:47 AM

It's hard to predict an outcome from an argument, and impossible with an en banc. Eleven judges, half of whom did not ask a question, and several who did grilled both sides equally.

The good guys faced a very big problem: the Ninth is 2/3 Demo appointees (party of the appointing president is the only way to judge their political feelings, and is rough enough). Odds of winning 6 out of 11 are not high.

The good guys thus posed the question narrowly. We aren't attacking the licensing system as such. We are attacking the fact that the two sheriffs here employ its broad "good cause" term to exclude anyone who doesn't have an exceptional need for self-defense, one not shared by the average person. Heller suggests, at the very least, you cannot demand that. (I think a licensing system of that type is unconstitutional, and they certainly do as well. But an advocate's job is to win THIS case, not to debate broad principles and lose on them).

This put the State in a very interesting position, which at least one judge probed. It's moving to intervene -- but why, this late in the game? It could have joined the suit years ago. It didn't even join before the panel decision came down. California didn't want to say "Heck, we thought the sheriffs would appeal it farther." Instead it tried to argue that the suit started out as a challenge to the sheriffs' exercise of discretion, in which the State had no particular interest, and developed into one where the State statute itself was under attack. But if the good guys say that isn't the case... And if the State isn't granted intervention, the appeal dies, since the sheriffs didn't ask for further appeal, and that leaves the panel decision standing.

I did like it when in rebuttal Clement zinged the better of the two California advocates. The guy had said -- this is a rural county. The ban on open carry doesn't apply to 95% of it except in restricted areas, so a person can carry open and unloaded in the great bulk of it. The rebuttal response: "except in restricted areas." Under the statutory definition, those include virtually anywhere you cannot discharge a gun, which in this context means almost anywhere, a road, anywhere near a house, etc., etc.

7 Comments | Leave a comment

Ken M | June 17, 2015 9:35 AM | Reply

"... so a person can carry open and unloaded in the great bulk of it."

Did anyone bother to ask this genius exactly what use an unloaded gun was against an armed or physically superior assailant? If an unloaded gun provides the defensive capabilities the Second Amendment guarantees, then wouldn't the complete prohibition of any civilian possession of firearms be permissible, as long as the peasants are allowed to have Nerf guns (provided they either leave them at home or only carry them openly)?

TT | June 17, 2015 11:04 AM | Reply

Thank you for writing the above summary.

Yojimpoke | June 17, 2015 2:34 PM | Reply

“By George, I’d rather have a pocketful of rocks than an unloaded gun.” - Frank Eaton (AKA Pistol Pete)

If a simple old cowboy like Mr. Eaton understood the uselessness of an unloaded firearm 60 years ago how can an educated solicitor be so ignorant today?

Brad | June 17, 2015 6:04 PM | Reply

If Democratic appointed judges invent a victory for the anti-gun side in this case, where the legal issues on standing are not muddy at all, a black mark should forever sully their names.

OCShooters | June 17, 2015 9:17 PM | Reply

I wish they could have stuck in, "carrying an unloaded gun is like carrying a cell phone without the batteries installed and having to install the batteries if you are attacked and need to call 911."

Brandon Combs | June 18, 2015 1:00 AM | Reply

Clement made an awful concession that might land Peruta a remand.

CDR D replied to comment from OCShooters | June 18, 2015 4:57 PM | Reply

The cell phone analogy is good, but extending it to this issue would be that under current law in California, it would be illegal to carry a cell phone, batteries inserted or not.

IOW, there is simply no way for the citizen to have possession of a firearm outside of the home, unless the citizen is politically connected.

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