Peruta v. San Diego : En Banc Review
Well that was interesting.
I have returned to my hotel room in Downtown San Francisco and just got through reviewing my notes from the hearing.
(I also enjoyed a whiskey neat, at the sky lounge at the Marriott Marquis while eating dinner and ruminating on todays proceedings, so if my writing is unusually verbose blame the alcohol.)
Don’t worry fellow CCW holders I was not carrying in the bar… though as I have mentioned before, there is something uniquely satisfying about carrying while in the confines of San Francisco.
Ok… here is my frank assessment: The hearing went well… actually better than I expected, and surprisingly better than I think a lot in our firearms community expected.
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Here is my disclaimer: It is virtually impossible to determine the outcome of a case from the oral arguments. These are interesting, and maybe shed some light, but in the end there are so many other factors… both political as well as procedural, that go into a decision, it becomes worthless to gauge the opinion of the court through questioning… or my favorite… the analysis of body language.
A lot of people seem intent on analyzing how each justice is studying the counsel at the podium…. get off that train, it does not go anywhere… some of the justices just enjoy the intellectual back and forth, and while they are disappointed (and show it) sometimes with the attorneys’ answers, it has very little dispositive weight on how they will decide.
A couple of things did strike me though:
Clement and Gura attorneys for Peruta and Richards (Richards was an identical case in Yolo County that was combined with Peruta) did an over all good job.
I was a little disappointed that Clement seemed to suggest that “good cause” was not in and of itself violative of the Second Amendment…. but that is just me being a meat eater.
The fact is… the case that the three judge panel handed down did not strike the good cause requirement… it simply said that “general interest in self defense” was to be given judicial notice as being sufficientgood cause.
Gura was a little more aggressive in following contrarian justices onto the intellectual tree branch. When asked if the state had any right to restrict the Second Amendment he opined that if we allow sheriffs to restrict the Second, why not allow them to restrict the Fourth? After all… a sheriff would be a lot more effective in getting bad guys by only allowing some people to petition the sheriff for a license to exercise their Fourth Amendment rights.
He also invoked abortion…
Yeah you read that right…
In an Arizona case the 9th said that a sheriff cannot create impediments to someones ability to exercise a fundamental right.
Well… if you have ever poked around the Constitution looking for the amendment or article where it talks about abortion you won’t find it. It is located in the “penumbras” (whatever the hell that means), as articulated by the Supremes in Roe v. Wade.
Gura argued… if the 9th could restrict a sheriff from infringing on someones fundamental “penumbras”, surely they could restrict a sheriff from infringing on a more.. shall we say “articulated” right.
My favorite quote though came during a discussion regarding open carry vs. concealed carry.
One of the justices seemed interested in exploring the dynamics of “California Open Carry”.
I put that in quotes because up until it became illegal through legislation, open carry in California was relegated to unloaded open carry. Yeah… you got it… you were allowed to carry… but it had to be unloaded.
Gura suggested that this type of open carry was essentially worthless. The Justice shot back “Well.. in Jackson we just stated that keeping your gun locked up and your ammo separate from it was constitutional!”
This line of discussion, while interesting, really took the litigants down an intellectual rabbit hole since we now effectively have a ban on open carry.. and in most urban centers a ban on concealed carry. Gura offered a gem though; “No one in America has ever carried an unloaded weapon for self defense”.
When it came time for the State, and Yolo counties to jump in, things got…well…weird.
Frankly I was expecting the court not to question them too hard…. I was wrong… they got grilled.
The State started off by arguing why the Justice Dept. should step in and argue this case, since the San Diego Sheriff has given up on it. The court did not seem pleased that the State was coming in this late in the game, and the precedent it might have in other areas of law… but here was the bizzare part: The state articulated that the beauty of the CCW scheme in California is that the individual sheriffs get to decide what “good cause” is. The State has devolved that power to the local level. So the question remains… if the State has granted that power to the sheriffs, how does the state have a vested interest in this case? A couple of the justices seemed really perplexed by that… and it will be interesting to see how this plays out in the decision…
But the State did give us a big whopper of one though.. when asked if the State believes the 2nd Amendment grants an individual to “Bear Arms “ outsidethe home the Counsel from the Dept. of Justice hemmed and hawed and then said “yes.”
That is a biggie.. and may have deeper implications.
The attorney for Yolo county finally took us into the Twilight Zone.
In his world this whole concealed carry thing is much ado about nothing. Yolo county is 99% rural where you can open carry to your hearts content (wrong), wear a gun into any business where the owner allows you to be armed (wrong), it is just in the tiny little urban center where they have restricted the carrying of firearms.
In the rebuttal Gura slammed this ascertain. The justices also appeared equally unmoved by Yolo’s argument.
What was interesting though is that Yolo also agreed that the Heller decision (The Supreme Court case that FINALLY recognized the Second Amendment as a fundamental right) did not restrict that right to the home.
Yolo also perpetuated an annoying fiction saying that the Second Amendment was a fundamental right to HUNT!!! and hey… we restrict hunting in cities and urban places so what is wrong with restricting carrying of firearms in urban places?
A couple of points I would have like to have seen brought up but weren’t:
1) Heller does not allow for an intermediate review of the Second Amendment right only Strict Scrutiny… Justice Thomas in his dissent at not hearing Jackson v. San Francisco stated this… why with all this does the court still believe that intermediate scrutiny is still in play?
2) Equal protection. The sheriff might have the discretion on who gets and who does not get a ccw in their jurisdiction, but they don’t control who works and visits their jurisdiction. A ccw granted in one part of California is valid throughout the state. How is it fair that a citizen of Orange County can have a CCW and work in San Diego, but a citizen of San Diego who works in the cubicle next to the Orange County co-worker cannot?
Anyhow… it is done… we will see what happens when the court renders it’s decision in hopefully a couple of months. My hope is that we actually get a decision and not a remand to the lower court to retry the case.
Time will tell.