Tag Archives: peruta

SCOTUS Properly Denied Cert in Peruta v. California

While it may come as a shock to many of our viewers, I am firmly of the position that the U.S. Supreme Court properly denied certiorari in Peruta v. California, given the significant rumors of Justice Kennedy’s impending retirement this summer – the result of which will trigger the biggest battle over the confirmation of a new justice that our Country has ever seen.

But what does that have to do with Peruta?

Well, if you remember, both D.C. v. Heller and McDonald v. Chicago were 5-4 votes, which included Justice Kennedy in the majority; however, his exact position on the Second Amendment is not known, as he joined the majority opinion in U.S. v. Castleman, which, as Justice Scalia wrote, results in everything constituting domestic violence. Accordingly, even absent his retirement, he may not be a vote that we can count on in support of the Second Amendment.

Furthermore, since Heller and McDonald, we unfortunately lost the legal giant Justice Scalia. While Justice Gorsuch has now taken former Justice Scalia’s place on the Court, assuming he votes consistent with former Justice Scalia’s opinion of the Second Amendment (which seems extremely likely given the Dissent to the Denial of Certiorari to Peruta for which he joined), in the absence of Justice Kennedy, the 9th Circuit’s decision, upholding the draconian law, would likely be affirmed, since a 4-4 vote results in affirmation of the lower court’s ruling. While Tom Goldstein of SCOTUSBlog has found precedent in such situations for re-argument once another Justice is confirmed, he has likewise found identical precedent where re-argument was not provided. Hence, we cannot count on re-argument being granted in a 4-4 tie situation.

While a tie vote affirmation is not precedential on lower courts, it would likely empower even more lower courts to ignore the dictates of the Second Amendment and Heller, McDonald, and Massachusetts v. Caetano, since the lower courts have seemingly thumbed their nose at the Court’s binding precedent. Specifically, in Heller, the Court declared that the definition of “bear arms” was to

wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose of . . . being armed and ready for offensive or defensive action in a case of conflict with another person.

Yet, lower courts have consistently upheld bans on carrying firearms in one’s pocket and permitted states to require an individual to obtain a license to carry a firearm concealed on his/her person.

Furthermore, in both Heller and McDonald the Court declared that the Second Amendment should not be analyzed in an interest-balancing approach.  Specifically, in Heller the Court declared

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.

Likewise, in McDonald, the Court declared that the Heller Court “specifically rejected” “an interest-balancing test”. Yet, almost every federal court that has analyzed the Second Amendment has analyzed it under an interest balancing approach, generally only applying intermediate scrutiny.

For these reasons, until Justice Kennedy retires and is replaced by a jurist that recognizes the Second Amendment is an inalienable right, it is best for SCOTUS to continue denying certiorari in cases involving the Second Amendment.

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ATTENTION: The 9th Circuit amends the 2nd Amendment…

The last time I checked, neither state government nor the Courts had any power, real or imagined, to amend the U.S. Constitution.  A recent ruling from the 9th Circuit, however, suggests maybe I need to check again.  In a decision that confounds common sense, plain reading of the Constitutional text as much as it creates a legal non-sense, a divided 9th Circuit upheld Cal. Penal Law §25400 and §25655, which generally makes it unlawful to conceal carry firearms in public AND limits a license to conceal-carry to a finding of “good cause” by the issuing sheriff.  Peruta v. San Diego, 2016 WL 3194315 (9th Cir. June 9, 2016).

The procedural history of this case is itself dubious.  First, it should be noted that Peruta technically consisted of consolidated cases wherein plaintiffs challenged essentially the same local (county-level) iteration of §25400 and §25655.  The named plaintiff, Peruta, brought a Second Amendment suit against the County of San Diego.  Interestingly also, this case was the 9th Circuit’s rehearing and reversal of its own decision in Peruta I (742 F.3d 1144 (9th Cir. 2014)) wherein an en banc panel of the 9th had previously found good cause requirements unconstitutional.  The Sheriff of the San Diego, after Peruta I, declined to appeal for a rehearing, but that’s where the state of California intervened – prompting a hearing before the full Court – Peruta II.  San Diego county’s iteration of the good cause requirement defines such as…

…a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way.  Simply fearing for one’s personal safety alone is not considered good cause.

The other case – Richards v. Prieto, Cnty. of Yolo, involved the named Plaintiff, Richards, bringing suit on the same grounds as plaintiff Peruta, but against Yolo County’s own version of the good cause requirement.  Amazingly, the County of Yolo does not bother to even define good cause (as if the concept wasn’t vague and arbitrary enough under California state law), rather the County instructs its residents that there are certain circumstances which, definitively, do or do not give rise to good cause.  Among those circumstances:

Victims of violent crime and/or documented threats of violence [yep]

Self protection and protection of family [nope]

Business owners who work all hours in remote areas and are likely to encounter dangerous people and situations [yep]

Personal safety due to job conditions or duties placed on the applicant by their employer [nope]

In a written opinion of truly amazing acrobatics – The 9th Circuit somehow sidestepped the very plain language of the Second Amendment, and also putatively avoided going as far as (explicitly) finding that the Second Amendment ensures no right, whatsoever, to publicly possessing a firearm for self-protection(“That question was left open by the Supreme Court in Heller, and we have no need to answer it here.”)  The problem is, California law also forbids open-carry, pursuant to Cal. Penal Law §26350.  Therefore, as a practical matter now, a private citizen cannot legally possess firearms in public for the purpose of self-protection.  Oh well, the catch-22 there was clearly not a concern for the Court.  Isn’t the narrow grounds approach to jurisprudence refreshing?

Irrespective of whether the reader belongs to the so-called textualist school of judicial philosophy, or that of the living Constitution, the ruling has to be seen as a baffling one.  I could have sworn that the Second Amendment states, in relevant part, “…the right to keep and bear arms shall not be infringed.”  Webster’s Dictionary includes the following definition of the word “bear” as including “to produce” and/or “to bring forth”.  Further, the Constitutional Convention’s inclusion of “bear” after stating “keep” rationally indicates that keeping and bearing are not one in the same thing – that the latter is an additional right, not to be confused with the former.  Sure, the Court engaged in an expansive quest for historical precedent to state’s prohibiting public carrying of weapons, but precedents can be found from the reverse side as well.  The writer finds it indicative of the weakness of the Court’s opinion that a majority of the 9th Circuit’s historical assessment looked to monarchical English history, first and foremost.

Well there you have it, the 9th has effectively taken the “bear” out of “…keep and bear arms…” – an amendment, as I see it.  Who needs Congress or a Constitutional Convention when you have overreaching judges.

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