Posted on 02/21/2014 11:08:26 PM PST by 444Flyer
Late this afternoon, the San Diego County Sheriff’s Office issued a press release announcing that it will not seek en banc review of the Peruta decision, which was issued last Friday by a 2-1 panel of the Ninth Circuit. As I detailed in a post last week, Peruta requires that the exercise of the Second Amendment right to carry a licensed firearm for lawful self-defense be considered “good cause” under the California statute providing for the issuance of concealed carry permits.
The press release is scrupulously silent about the possibility of filing a petition for a writ of certiorari. The deadline for filing such a petition is 90 days from the entry of judgment, which was February 14 in the Peruta case. Supreme Court Rule 13.1
As the press release notes, a federal Circuit Court has the authority to conduct an en banc rehearing sua sponte. According to the Federal Rules of Appellate Procedure, Rule 35(a): “A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc.” For the Ninth Circuit to vote on a rehearing would require a judge to call for a vote. F.R.A.P. Rule 35(f).
(Excerpt) Read more at washingtonpost.com ...
Mr. Bloomberg, please pick up the white courtesy phone.
LOL
The anti-gun left will be increasing the pressure on Barry to do something with his pen or his phone to protect them from all those evil California gun owners who will want to exercise their right to carry.
You are using Latin; the “forbidden language” of the American System. Have you studied for The Bar? I recall hearing that JFK jr had to take that test (at least) four times before he “got a passing grade”. You noticed I didn’t say he actually passed the test. I was still impressed that he was ambitious enough to try.
NOTHING IS GOING TO CHANGE AND NO FLOOD OF PERMITS ARE GOING TO BE APPROVED.....and this is why.
Ca Penal Code Section 12050
12050. (a) (1) (A) The sheriff of a county, upon proof that the person applying is of good moral character, that good cause exists for the issuance, and that the person applying satisfies any one of the conditions specified in subparagraph (D) and has completed a course of training as described in subparagraph (E), may issue to that person a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person in either one of the following formats:
The Subsections to this article address other issues but
Paragraph A is the guiding directive. The KEY word in this
paragraph is the word “MAY”....the code says the chief LEO
“MAY” issue a permit. It does not say “SHALL”. All the
9th circus courts ruling did was to delete the phrase regarding “good cause” from this code. It does not change
the word “MAY” to “SHALL”. Only the legislature can make that change. Unless and until such a change IS made, and that is VERY unlikely California remains a “MAY ISSUE” state not a “SHALL ISSUE” state. That means that the decision to issue or not issue is at the SOLE discretion of
the chief LEO involved. The recent court decision ONLY means that said LEO may not use the phrase regarding “good
cause” as a reason to refuse to issue. He can still refuse
to issue a permit....and he isn’t required to give a reason.
Good legal analysis of the decision, but it does give CCP applicants a “cause celebre” to take to the State Assembly, using the 9th Circuit’s decision as a supporting element in clarifying the existing Code Section of 12050.
Given that the decision came from the Nutty Ninth, it was an impressive victory for our side. If the Leftists in the Assembly keep the law from being changed, it pits them against their one-time top legal ally in the state.
Our side has got to be smarter and more aggressive in keeping the California Left in check, at all levels. Good legal teams will ensure that we can cause the Left a boatload of trouble, as considerable cost and time loss to them.
The momentum has temporarily swung to our side on the CCP issue, so let’s not drop the ball thinking that we have won the war. NVSCANMAN has done us all a great favor by pointing out the limits of the court’s decision and what must be done to correct it.
Hats off to him/her.
Good legal analysis of the decision, but it does give CCP applicants a “cause celebre” to take to the State Assembly, using the 9th Circuit’s decision as a supporting element in clarifying the existing Code Section of 12050.
Given that the decision came from the Nutty Ninth, it was an impressive victory for our side. If the Leftists in the Assembly keep the law from being changed, it pits them against their one-time top legal ally in the state.
Our side has got to be smarter and more aggressive in keeping the California Left in check, at all levels. Good legal teams will ensure that we can cause the Left a boatload of trouble, as considerable cost and time loss to them.
The momentum has temporarily swung to our side on the CCP issue, so let’s not drop the ball thinking that we have won the war. NVSCANMAN has done us all a great favor by pointing out the limits of the court’s decision and what must be done to correct it.
Hats off to him/her.
I think maybe that case turned actually on that word “may.” It was against the sheriff but if the “may” is struck down in San Diego it can hardly stand anywhere else in the 9th Circuit.
In order for Kali to go from “may issue” to “shall issue”
the legislature would have to change the penal code from
“may” to “shall”. A court ruling such as this can strike
down an undue burden like “good cause” however to think
this ruling changes the actual law is not how the legal process works.
I disagree with your analysis.
The opinion clearly states that an ordinary person must be able to carry. If this stands, the opinion makes CA a “must issue” state rather than “shall issue”.
Now exactly what is the practical difference there?
Don’t know if you were being facetious or not, but, as I have no knowledge of legal terms, I looked up “no sua sponte en banc”. Here is what I found.
En Banc(1.):
(In the bench. Full bench.) Refers to a session where the entire membership of the court will participate in the decision rather than the regular quorum. When the issues involved are unusually novel or of wide impact, the case will be heard and decided by the full court sitting en banc.
Sua sponte (1.):
Of his or its own will or motion; voluntarily; without prompting or suggestion.
Source: http://clarit.home.mindspring.com/glossary.htm#e
GOP Governor Candidate Speaks Out Against “Assault Rifles” and “Full Capacity Magazines”
February 21 2014
by Dan Cannon
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I’ve always said don’t just vote party lines if you want to protect your gun rights. There are some moderate Democrats, especially in state legislatures, who have been great friends to the Second Amendment. Likewise, there are Republicans who just about as anti-gun as you can be.
Case in point, California Governor Candidate Neel Kashkari made some disturbing comments about the Second Amendment.
According to SacBee,
“If you’re a single issue voter, and you just want someone to give you a full capacity assault rifle magazine, God bless you, you can go vote for somebody else,” Kashkari told a group of college Republicans at California State University, Sacramento. “I’m not your guy.”
“I do know philosophically that I deeply believe in protecting my own gun rights, and that means protecting your gun rights,” Kashkari said. “But I also believe that, you know, we need to be reasonable about things.”
Kashkari spoke broadly against “layering more gun rules on me, on responsible gun owners,” saying additional restrictions will not prevent gun violence or make people safer. But the former U.S. Treasury Department official said he does not oppose waiting periods or background checks, which he said “didn’t inconvenience me in the slightest” when he has purchased guns.
Keep in mind, this is supposed to be the conservative choice for California governor!
Kashkari has been taking a serious beating on his Twitter account, and to his credit he seems to be responding personally to most of the concerns. Although, I don’t think he’s really helping himself.
@2BPatriotic I was responding to a student question. He wanted me to say I would roll back all gun laws. #nope
— Neel Kashkari (@neelkashkari) February 21, 2014
@Shadowsbesideme yes, I am a gun owner myself and will defend all our rights
— Neel Kashkari (@neelkashkari) February 21, 2014
I’m really concerned about the future of California, which I fear before was already too far gone. Now that the so called “conservative” ballot options in that state are also becoming anti-gun I simply don’t know how California residents take back their state.
Despite what Kashkari says, in my opinion, and I’m pretty sure the opinion of most gun owners, supporting waiting periods, banning certain types of weapons, and magazine limits mean that you DO NOT support the Second Amendment. Period. It’s that simple.
Image Credit: Neel Kashkari Twitter Account
Lawmen can sometimes be a bit more commonsensical about such things. Especially when they get a chance to their peers about it. I bet he talked to a few other sheriffs and they gave him “the solid and right on” about it.
Of course they will, but they are powerless in the face of the majority of Americans who will go to the ballot box this fall.
To be honest, I wasn’t joking. You had me accepting those words as authentic. Hah. Some people (like me) are easily mystified when it comes to knowing the law.
While what you say is technically true, I don't think it is practical. The District Courts will be bound by a precedent which is worded in such a way that no discretion will be permitted for law-abiding adults.
This means that a person who is denied for any other reason which would not pass Constitutional muster should be a shoe-in for the same summary judgement which has been ordered in the Peruta case.
Law firms with some time to sell ought to be willing to sue, asking for the expenses to be covered by the reluctant Sheriff in question. If the District Courts do what they ought to do, this would be practically free money.
I believe that the anti-gunners would rather wait than have this issue decided by the present Supreme Court. They would rather hope for the chance that Obama will get to appoint a replacement for one of the Heller five.
It's in the interests of we who support the right to keep and bear arms to absolutely flood the lower courts so as to get this case or one sufficiently similar before the present Supreme Court.
While the decision is a step in the right direction
it does not force a sheriff to issue. It does
remove the undue burden of “good cause” and gives people
who wish to resort to legal action an additional precedent
in their favor. However the ruling does not remove that
one all important word from the penal code....”may”.
If a sheriff denies a permit and gives a reason that is
vague, broadly worded etc. an appeal such as the one under discussion may successfully remove that impediment.
However if a sheriff merely denies the application without
stating a reason an applicant would have to sue to force
a precedent requiring a valid reason for denial. Until
such a precedent is set a sheriff merely has to say NO....
and not one word more.
I have no doubt that time will show that nothing of any substance has changed. Not until further court actions
take place and further rulings are made that give further
directions to a sheriff directing them to approve applications unless he can come up with a good reason for
denial. I have zero faith that the legislature will change
the wording of the law to “shall”....they may not even be bothered to remove the phrase “good cause” regardless of this ruling.
I think you are completely underestimating the strength of a court decision recognizing a fundamental, individual, enumerated right.
Here's the order from the Ninth Circuit:
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."
ANYTHING which impermissibly infringes is now subject to attack using this decision as a precedent. You will no longer have to prove that it's an individual, fundamental, enumerated right to bear arms ready for use in a confrontation in public.
This most definitely shifts the burden to the Sheriff to justify ANY infringement. If what you said is true, then the San Diego Sheriff could merely state, "I refuse to issue to Peruta and I won't say why". That won't cut it.
He could try to say, "I won't issue to Peruta because I don't believe that he exhibits "GOOD MORAL CHARACTER". The judge in such a case should similarly apply Peruta and grant summary judgement in such a case. Where would the state get the authority to decide that people they consider immoral don't have a Second Amendment right to defend themselves?
I doubt that even the training requirement can stand muster. It's simply not in the Second Amendment and several states get along quite well without such an infringement. If a case can be made that there is a compelling reason to require training, then the state can jolly well provide it. I don't see that happening.
My prediction is that the anti-gunners will STALL as long as possible, but here in Kalifornia the strategy that serves New York, New Jersey, and Maryland well is a huge loss for them in Kalifornia, and vice versa.
Peruta might be appealed but I doubt it enough that I filed for my permit this morning. If we need an immediate case to be filed in my county, I will be ready.
Not sure what you mean by “authentic”, but what I was just sharing with you what I learned when I looked up the legal terms.
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