California, Hawaii: Apply for Carry Permits Now

Gun Watch ^ | 14 February, 2014 | Dean Weingarten

[marktwain]

The long awaited decision of the 9th Circuit on whether the second amendment extends to carry outside of the home was answered yesterday by a three judge panel in Peruta v. County of San Diego.  Their answer was a resounding "Yes" though it was a 2-1 decision.   While I have only skimmed through the decision, the logic, historical references, and quotes from the Heller and McDonald Supreme Court decisions and  appeals court decisions are well written and clear.

The question is, what should those who support the restoration of second amendment rights do?  Do they need to do anything in response to this decision?

There are two actions that seem appropriate immediately.   First, remember that this was a three judge panel, not the entire Ninth Circuit.   The first possibility of appeal is to have the entire Ninth Circuit revisit the decision en banc.   If a decision is made to appeal, then the County of San Diego and/or Sheriff William D. Gore could ask the 9th Circuit to stay the decision while the appeal was taking place.

My belief is that only the defendants in the case have standing to appeal.  Significantly, that would be the County of San Diego, and William D. Gore, Sheriff of San Diego County.  Sheriff Gore is up for election in 2014, and is already soliciting money for his campaign.  Questions about his campaign may be asked of Kelli Maruccia at 619-239-1721.   The San Diego County Board of Supervisors consists of five members, four Republicans and a Democrat.  "Moderate" Republican Kevin Faulconer  won the mayor's race on Wednesday with 55% of vote, and that is in the City of San Diego, which has an edge in Democrat voters.   This site says that an en banc appeal must be requested by 28 February.

San Diego County is the most conservative urban county in the State.  The first thing that I would do, as a San Diego County voter, would be to insist that the Sheriff and the County Supervisors not make an en banc appeal, and not request a stay.   This decision is probably the best that could be hoped for out of the Ninth Circuit at this time.  There is nothing to be gained by having an appeal to the full court, and everything to be gained by having this decision in place for months, if not years.    The decision does not require action by the legislature, only by the counties.  The counties only have to change their procedures from "may issue" to "shall issue".    What will then happen is what we have seen in every other jurisdiction where the change from "may issue" to "shall issue" has occurred: a tremendous surge in the number of concealed carry permits.

Once a jurisdiction goes to shall issue, it creates a large class of politically savvy, educated voters with a direct interest in keeping shall issue and reforming the law by making it easier to obtain a permit, renewal, and to move toward lesser burdens on the permit holders.  This will place California permanently in the "Shall Issue" camp, and will do the same thing for Hawaii, as Hawaii is in the 9th circuit as well, and Hawaii law does not allow people to carry pistols for self defense without a permit.

The second action that seems indicated, is to apply for a concealed carry permit in the effected jurisdictions as soon as possible.   Very soon, if not immediately, every county in California is/will be required to issue permits without requiring a specific and unusual "need".   This situation will last until either a stay is placed on the Ninth Circuit's decision and/or until the decision is appealed and the appeal overturns it.  This period might last for a few days, a few months, a couple of years, or for the foreseeable future.  If a county denies an eligible person a permit during that period, it seems quite likely that the person would have standing to sue the County under this decision.   Lawyers may correct me, but I believe it would apply everywhere that the Ninth Circuit has jurisdiction, including Hawaii and the Pacific territories.

I suspect that most places would issue the permits rather than risk the potential lawsuits.   Even if the case is overturned sometime in the future, there would still be an educated and active class of people to whom some future politician will have to explain why he or she now wants to take away a right that they have had and exercised without any problem.

If I lived in a jurisdiction under the Ninth Circuit (I do) and was afflicted with burdensome laws like California, Hawaii or Guam (I am not), I would apply for a permit to carry as soon as possible.   This both demonstrates intent and gains standing for future suits.

I am not a lawyer, not do I play one on TV.  I would love to have real lawyers school me on what the legal pitfalls of what I have written are, and what problems might result.  I suppose that people could lose the fee required to apply for the permit.    There may be other negative possibilities that I am not recognizing.

Illinois has already received nearly 50,000 permit applications in the first month.  They expect to receive 400,000 in the first year, 2014.   Illinois has a population of nearly 13 million.   Wisconsin issued 144,000 permits for a population of a little less than 6 million in the first year of its permit program.  California has a population of nearly 39 million, about three times as many as Illinois.   California could easily see a permit population of one million in the first year.  One million voters are not easy to ignore on a specific, focused, issue.

No state that has had a shall issue permit system has ever gone back to a may issue system.   California, Hawaii and Guam all have systems in place.   They only need to switch from a "may issue" to a "shall issue" system.  Around 11 California counties are already effectively "shall issue" because of other lawsuits brought by calguns and the Second Amendment Foundation (SAF).

This may be a major turning point in restoring the second amendment.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch

[marktwain]

An interesting point is that no action is required by the legislature, only by the county governments.

[txhurl]

An interesting point is there is much sound and fury about weapons buying but no real zero admin to actually stop it.

[Organic Panic]

Why does it feel like dejavu I’m having all over again dejavu I’m having... This ruling WILL be ignored. The Cali elites must maintain their monopoly on second amendment rights. Only important celebrities and politicials deserve to defend themselves. We plaebes need to know our place.

[Talisker]

Criminals don’t follow gun laws, by definition.
Criminals don’t follow gun laws, by definition.
Criminals don’t follow gun laws, by definition.
Criminals don’t follow gun laws, by definition.
Criminals don’t follow gun laws, by definition.
Criminals don’t follow gun laws, by definition.
Criminals don’t follow gun laws, by definition.
Criminals don’t follow gun laws, by definition.
Criminals don’t follow gun laws, by definition.
Criminals don’t follow gun laws, by definition.

[CurlyDave]

While I like the idea of applying tomorrow, I suspect the ruling is not effective for some legally-set number of days. It doesn’t matter. As is pointed out, a large number of applicants promptly putting in applications is a political statement all by itself.

The issue of whether any specific application is approved or rejected will not revolve around the day it is made, but the law on the day it is approved or rejected. From reading the SD Sheriff’s website, the initial application cost is about $15. Anyone who owns a handgun has already invested far more than that in the gun.

Bottom line is all who want to help this along, especially those in San Diego, need to get an application in right away. Enough applications and the SD Sheriff may “see the light” especially since he has an election in 2014 and he knows in his heart that anyone who applied and was not issued a permit will vote for his opponent.

[The KG9 Kid]

Nevada already has ‘shall issue’ CCW codified in our state level Nevada Revised Statutes.

This ruling essentially adds “... And be quick about it.”

Anyway, I hope it works out for the Californians. I’m skeptical about the outcome and don’t expect any real forward movement until the very last legal liberal trick on the subject has run its course. In NV, we’ll honor this new ruling. California, they’ll have to be dragged there.

Besides, this IS the same 9th Circuit Court that ruled that people have a right to construct home made machine guns as long as they didn’t enter them into interstate commerce. The US Supreme Court shot down ‘Stewart vs US’ before I could even get the Dremel tool warmed up... More insultingly, they remanded it back down to the 9th in light of ‘US vs. Raich’ which was a case about marijuana cultivation in California which nowadays is all the rage. I think these cases need revisiting.

[riverrunner]

I believe the ruling went into effect the day is was issued.

[Yo-Yo]

Love the snarky comment in the first footnote of the opinion:

There are a few narrow exceptions to [citizens carrying firearms in public.] Armored vehicle guards ...
... And a citizen may carry a loaded firearm in public if: ... he faces immediate, grave danger provided that the weapon is only carried in “the brief interval” between the time law enforcement officials are notified of the danger and the time they arrive on the scene (where the fleeing victim would obtain a gun during that interval
is apparently left to Providence).

[Yo-Yo]

Man, I love this majority opinion! Another snarky quote:

Clearly, the California scheme does not prevent every person from bearing arms outside the home in every circumstance. But the fact that a small group of people have the ability to exercise their right to bear arms does not end our inquiry. Because the Second Amendment “confer[s] an individual right to keep and bear arms,” we must assess whether the California scheme deprives any individual of his constitutional rights. Heller, 554 U.S. at 595. Thus, the question is not whether the California scheme (in light of San Diego County’s policy) allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding “no.”

The opinion simply sends the case back to the lower court for a new decision. From the opinion:

The district court erred in denying the applicant’s motion for summary judgment on the Second Amendment claim because San Diego County’s “good cause” permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.

REVERSED and REMANDED.

[marktwain]

As the original decision was not to grant a summary judgement, isn’t this decision telling the lower court *to* grant summary judgement?

[Yo-Yo]

But the decision doesn’t take effect until the lower court issues its revised ruling.

[marktwain]

Thank you. Interesting. Good time to use to let the Sheriff and County Supervisors know that they should not appeal and start issueing permits.

Does the State of California have any “standing” in this case?

[Travis McGee]

[Navy Patriot]

Thanks for this, Mark, very important.

Even if an individual cannot afford legal fees to pursue an order, having standing allows pro bono 2A lawyers to argue on your behalf.

[TauntedTiger]

As you probably know, your right to self defense will still be temporary, expensive and discretionary. On the other hand, your records will be permanent and always a subject of interest.

Fees, fines and foes.