Steve Halbrook: Peruta Appeal Decision Ignores Context of the Law

Yesterday, the Ninth Circuit Court of Appeals over ruled an earlier three 9th Circuit three judge panel decision and upheld the lower court decision in Peruta v. County of San Diego, ruling that the Second Amendment does not include the right to carry a concealed firearm.  San Diego appealed the three judge panel decision to the full court which heard the case about a year ago.  The summary of the ruling begins: “The en banc court affirmed the district courts’ judgments and held that there is no Second Amendment right for members of the general public to carry concealed firearms in public.” VSSA Life Member and Second Amendment attorney Steve Halbrook told NRANews yesterday that the decision completely ignores the context of the law. The judges have virtually covered their eyes while reaching it. He notes that the longest part of the decision is a discussion of the decrees of English kings, while ignoring today’s realities. 

Before the death of Scalia this was probably going to be the case that had the best chance of getting us a favorable ruling from the Supreme Court because California not only prohibits open carry but the may issue carry varies from locality to locality.  But now that the court is maybe split 4-4 (one or more of the five judges in Heller and McDonald have not wanted to hear additional cases so who knows if we can even get four on our side), I agree with Sebastian at Shall Not Be Questioned that the plaintiffs should not appeal this decision:

If Hillary wins this election, there will be no judicially enforceable Second Amendment of any meaning. That’s not hyperbole, it’s what’s going to happen. I also am very skeptical that losing three national elections in a row is going to make a lot of GOP and Dem politicians start whispering among themselves that NRA and the gun vote isn’t such the big deal they think they are.

This is one more illustration of why we must do everything we can to defeat Hillary Clinton this fall.

California AG Can't Intervene on Behalf of San Diego in Peruta Case

The LA Times has the story here.  You may recall that the sheriff in the Peruta case decided not to challenge the decision of the Ninth Circuit so the state Attorney General and the Brady Campaign requested the right to intervene in the case.  Yesterday, the court said no.  The Times notes it may not be the last word however:

Harris refused Wednesday to say what she will do. Gun advocates have only mildly opposed Harris' intervention. They believe the Peruta case is the best vehicle to persuade the Supreme Court to strike down restrictive open carry regulations throughout the country, and an appeal would move the case closer to the Supreme Court.

It has been thought that Peruta may be the best case on state issue of concealed carry permits for a hearing before the U.S. Supreme Court.  If Peruta ends here, there is still another case involving Yolo County that could be heard en banc by the 9th Circuit.  But for now, this is good news for California gun owners.  Bob Owens over on Bearingarms.com estimates that an additional 2 million people in California may apply to carry concealed if yesterday's decision ends up being the last word in the Peruta case.

D.C. Goes the Maryland Route on Concealed Carry

VSSA Life Member and Second Amendment attorney Steve Halbrook predicted it and the Washington Times reports today that DC has gone the Maryland road in the draft of their ordinance allowing its residents to carry:

Mr. Nathan said the city modeled its “may issue” approach to permits, which is virtually certain to face a lawsuit, on states such as New York and Maryland, where such statutes have withstood challenges in federal courts. But a similar requirement in California stating that a person seeking the permit prove they were confronted with a “clear and present danger” was struck in February. That ruling is on hold pending appeals.

DC residents may have to wait to see if Peruta vs. San Diego makes it to the Supreme Court to get a real chance at carrying outside their home.

D.C. Sends Muddled Response to Gun Ruling

Having to scramble to respond to a Saturday ruling could cause muddled messages but one would think that after the 9th Circuit Court of Appeals ruling in Peruta earlier this year that the District of Columbia would have had a contingency plan in place in the event the ruling went against them.  But alas, that was not the case, and Chief of Police Cathy Lanier had to clarify her hastily prepared guidance she gave her officers over the weekend.  From Roll Call:

D.C. police have been ordered not to arrest people for carrying pistols and deadly weapons in public. Washingtonians can still face criminal charges for carrying unregistered firearms and ammunition, but the millions of people who visit the nation’s capital are exempt from those provisions under an order from Metropolitan Police Chief Cathy L. Lanier. The chief’s guidance effectively put the District’s firearm regulations, at least for non-residents, on a par with the most permissive gun jurisdictions in the country. D.C. police got additional guidance from Lanier on Monday afternoon. She clarified that the ruling applies only to handguns, not long guns or shotguns that are still illegal, and that committing crimes with handguns remains illegal.

For non-residents, legal possession of a handgun in D.C. is based on the laws of their home jurisdiction, meaning D.C. police will be responsible for knowing and enforcing licensing and permitting restrictions from around the country. Lanier noted that additional information on gun laws in other states will be forthcoming and said that in the meantime, officers can call a 24-hour information line.

Lanier’s orders came in response to Judge Frederick Scullin Jr.’s July 26 ruling in Palmer v. District of Columbia that D.C.’s complete ban on the carrying of handguns in public is unconstitutional. In the 19-page decision, Scullin wrote that he was stopping enforcement of the law “unless and until” the city adopted a constitutionally valid licensing mechanism.

In her follow-up guidance to officers, Lanier nodded to the confusion. “Unfortunately, this ruling has left many unanswered legal questions that are currently being reviewed by the [Office of the Attorney General],” she stated.

This guidance could be short lived as the D.C. Attorney General has filed for a stay of the ruling, sighting the Madigan case from Illinois where the 7th Circuit stayed the ruling for 180 days.  This gave Illinois time to come up with a plan to issue permits.  It is unclear if D.C. wants the stay to appeal the case or to comply with it.

Halbrook: Should Not Read Anything Into Court's View of Carry With Abramski Ruling

VSSA Life Member and Second Amendment Attorney Steve Halbrook appeared on NRANews' Cam and Company on Wednesday to provide some additional analysis of the Abramski vs. US ruling where Virginia resident Bruce Abramski, Jr.'s, conviction of making a so-called "straw purchase" was upheld by a divided U.S. Supreme Court. Cam Edwards asked whether gun owners should read anything into Justice Kennedy's siding with the anti-rights justices on the court and whether that spells bad news for the carry cases like Peruta vs. San Diego, that are possibly headed to the Supreme Court.  Halbrook said we shouldn't read Monday's ruling as bad news (he didn't say it was good news either) because it was a totally different  question before the court.

VSSA Life Member Steve Halbrook on Peruta V. San Diego

Second Amendment Attorney and Author Steve Halbrook (also a VSSA Life Member) spoke with Cam Edwards on NRANews last Friday about the Peruta case. Halbrook discusses the possibility that the case will head to the Supreme Court and notes that the ruling is a great victory for the Second Amendment.

Why Yesterday's Decision in Peruta V. San Diego is Important

National Review's Jim Geraghty has a piece this morning that goes to the heart of yesterday's decision with some help from the Cato Institute's Walter Olson.  After sharing some of Olson's analysis, Geraghty notes:

We’ve had a generation or two of lawmakers – at first in both parties, then increasingly concentrated in the Democratic Party – who believed that the Second Amendment was optional. Increasingly, courts are informing them otherwise.

And it is interesting to note that the two judges on the side of gun owners are Clinton appointees.  If judges on the infamous 9th Circuit get this, how long before other circuits who have ruled against gun owners on the same issue of carrying outside the home will come around to this way of thinking? Heller figured prominently in the decision released yesterday.  California Second Amendment attorney Chuck Michel also talked about the importance of the case with Cam Edwards on NRANews' Cam and Company yesterday.