Second Amendment En Banc Decision Expected This Summer

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By Charles Nichols, President of California Right To Carry

We now know who the eleven judges are who will sit on the en banc panel of the 9th Circuit Court of Appeals in the combined cases of Peruta v. San Diego and Richards v. Prieto. Keep in mind that a majority decision, one way or the other, will require six votes.

Both cases challenge the implementation of California statutes governing the licensing of people to carry loaded, concealed weapons in public and therein lies the problem with both cases.

In 2008, the US Supreme Court published its first in-depth analysis of the Second Amendment which held that the Second Amendment is an individual right unconnected with service in a militia and then applied the Second Amendment right to local ordinances of the District of Columbia which, for all intents and purposes, banned the possession of handguns in the home and required that long guns in the home be rendered non-functional either by keeping them locked up or unloaded and disassembled. There were a few exceptions such as for those persons who possessed a permit to keep handguns in the home which were issued prior to the ban going into effect in 1976 and non-functional antique handguns. These exceptions did not matter to the high court. Five of the nine justices voted to strike down the ban. Two years later, five justices would issue a decision saying that the Second Amendment applies to all state and local governments via the 14th Amendment to the US Constitution.

However, in its landmark decision on the Second Amendment, District of Columbia v. Heller, the US Supreme Court held that the Second Amendment was not unlimited. The Court said that Open Carry is the right guaranteed by the Second Amendment of the United States and that concealed carry in public could be prohibited.

NRA Suckers

The Plaintiffs in the Peruta and Richards cases include the official state organization of the National Rifle Association – the California Rifle and Pistol Association, the Second Amendment Foundation and the CalGuns Foundation.

All of the plaintiffs have been arguing these past five years and more that California can ban firearms from being openly carried in public despite the unequivocal holding in the Heller decision that:

“[A] right to carry arms openly: ‘This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.'”

Two judges of the 9th Circuit Court of Appeals had held that California could ban firearms from being openly carried and having done so, must issue concealed carry permits. These two judges did this despite the clear language in the Heller decision saying that California cannot chose concealed carry over Open Carry. One of those two judges sits on the en banc panel. The judge who dissented in that decision also sits on this en banc panel. He is now the Chief Judge for the 9th Circuit Court of Appeals and presides over all en banc panels. He will be the judge who assigns the en banc decision to a judge to write the decision, or he can choose to write it himself if he is in the majority.

Chief Judge Sidney R. Thomas – First Vote Against Peruta/Richards.

Before being promoted to Chief Judge of the 9th Circuit Court of Appeals, then Circuit Judge Thomas sat on the three judge panel which heard the Peruta v. San Diego appeal. He wrote a scathing dissent which read in part:

Heller’s pronouncement is consistent with the Supreme Court’s prior observation that “the right of the people to keep and bear arms … is not infringed by laws prohibiting the carrying of concealed weapons.” Robertson v. Baldwin, 165 U.S. 275, 281-82, 17 S.Ct. 326, 41 L.Ed. 715 (1897). Id at 1179

“We are not asked in this case to determine the reach of the Second Amendment outside the home or to evaluate the entirety of California’s handgun regulatory scheme. Rather, the narrow questions presented in this case are: (1) Does the scope of the Second Amendment extend to protect the concealed carrying of handguns in public, and (2) if so, does San Diego County’s policy of allowing public concealed weapon carry upon a showing of good cause unconstitutionally infringe on that right?

The majority frames the question as “whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.” This is certainly an important issue, but it is not the question we are called upon to answer. The Plaintiffs are not seeking a general license to carry firearms in public for self-defense – they are seeking a license to carry concealed firearms in public.

Although all the nineteenth-century cases cited by the majority cautioned against restrictions on the open carrying of weapons, none of them – except the discredited, outlier Bliss – suggests that restrictions on carrying concealed weapons implicate the Second Amendment. See Chandler, 1 La.Ann. at 490; Nunn, 1 Ga. at 251; Reid, 1 Ala. at 616-17. And nothing in these cases or Chase’s Blackstone even hints that a restriction on carrying concealed weapons would become invalid if restrictions were placed on open carry. Rather, they suggest that restrictions on concealed carry are always valid, while there are limits to restrictions on open carry. Id at 1195

First, Plaintiffs have no issue with requiring a license to carry a loaded firearm, nor do Plaintiffs object to prohibitions on the open carrying of firearms, loaded or unloaded.

And nothing in these cases…even hints that a restriction on carrying concealed weapons would become invalid if restrictions were placed on open carry. Rather, they suggest that restrictions on concealed carry are always valid, while there are limits to restrictions on open carry.”

We can only hope that Chief Judge Thomas’ dissent in the now vacated three judge panel decision in Peruta prevails with the en banc court. If not, this en banc court could write a decision which cripples the Second Amendment in this circuit for decades to come.

What is a certainty is that there are not at least six judges on this en banc court who will reinstate the now vacated Peruta three judge panel decision.

Circuit Judge Harry Pregerson – Second Vote Against Peruta/Richards.

Judge Pregerson is 91 years old. First appointed to the Federal court by President Johnson, he was elevated to the 9th Circuit Court of Appeals by President Carter. Judge Pregerson has had a number of Second Amendment cases come before him these past thirty years in which one could argue he could issue a decision which goes any number of ways but I think his recent decision in US v. Chovan, a decision which established the Second Amendment framework for evaluating cases in this circuit strongly suggests that he will side with Chief Judge Thomas. After all, Judge Pregerson voted to use the same framework established in the 7th Circuit which was used to strike down Illinois’ ban on carrying loaded and unloaded firearms in public but which also held that, as per the Heller decision, that Illinois could ban concealed carry. The two judges on the vacated Peruta decision ignored Judge Pregerson’s prior panel decision. I don’t see him changing his vote to overturn his prior decision.

Circuit Judge Carlos T. Bea – Third Vote Against Peruta/Richards.

Judge Bea wrote a concurrence to Judge Pregerson’s decision in US v. Chovan in which he wrote that he would have upheld the gun control law at issue even under the highest level of judicial scrutiny. A level of judicial scrutiny which has been used to restore the Second Amendment rights of a convicted felon.

Circuit Judge Barry G. Silverman – Fourth Vote Against Peruta/Richards

Judge Silverman, a Clinton appointee, wrote an unpublished decision which upheld a felon in possession conviction not because he possessed a handgun in his house but because his wife, who was not a prohibited person, possessed a firearm in their house. It did not matter to Judge Silverman that he never touched the gun. The fact that it was in the house was all the justification he needed to uphold the conviction.

Circuit Judge Susan P. Graber – Fifth Vote Against Peruta/Richards

Judge Graber, a Clinton appointee, has written or joined in several decisions. In two cases she held that anyone who smokes marijuana or sells marijuana is no different from a convicted felon or a person who is mentally ill, they have no Second Amendment rights. In another she refused to remand a case back to the trial court because the judge refused to instruct the jury that the Second Amendment guarantees the right to self-defense. She said that “Heller and McDonald concern the right to possess a firearm in one’s home for self-defense. But neither case purports to change, or even to comment on, the law as to the definition of self-defense in a criminal case.” The central holding in Heller is that the Second Amendment is, at its core, the right to self-defense. Judge Graber missed the entire point of the Heller decision – lawful self-defense.

Circuit Judge M. Margaret McKeown – Unknown

Judge McKeown, a Clinton appointee, has one decision under her belt in which she held that short barreled shotguns are not protected arms under the Second Amendment.

Circuit Judge William A. Fletcher – Unknown

Judge Fletcher, a Clinton appointee, joined with Judge Silverman in upholding a felon in possession conviction for a felon who never touched the gun. In two other decisions he held that machine-guns fall outside the scope of Second Amendment protection.

Circuit Judge Richard A. Paez – Unknown

Judge Paez a Clinton appointee joined with Judge Graber in denying a Second Amendment self-defense instruction in a criminal case and joined with Judge McKeown in holding that short barreled shotguns, despite their similarity to blunderbusses, fall outside the scope of the Second Amendment.

Circuit Judge Consuelo M. Callahan – One Vote for Peruta/Richards

This is an easy call. Judge Callahan, a Bush 41 appointee, was one of the two judges in the now vacated two judge majority decision in Peruta v. San Diego. It does not take a crystal ball to predict that she will stand by her own decision.

Circuit Judge N.Randy Smith – Unknown

Judge N. Randy Smith, a Bush 43 appointee, doesn’t have the case law under his belt to predict one way or the other.

Circuit Judge John B. Owens – Sixth Vote Against Peruta Richards

Judge Owens, the lone Obama appointee, doesn’t have any Second Amendment decisions to analyze but his background before being appointed to the court is about as far to the left as one can be and still be on this planet. I feel comfortable in predicting that not only will he vote against Peruta/Richards he will push to undo the current Second Amendment framework in this Circuit and have this circuit do what the 4th Circuit Court of Appeals did in Woollard, issue a decision which refuses to say whether or not the Second Amendment applies outside the home but, if it does, then Peruta and Richards still lose.

As I recall, it took 74 days for an en banc decision to be published in a Second Amendment case. It is very likely that we will have the en banc decision this summer and if, as expected, Peruta and Richards lose then they will file their cert petitions this Fall. But given that their loss does not create a circuit split and the US Supreme Court’s unwillingness to grant cert petitions in Second Amendment cases which are clearly unconstitutional, as just happened today in the Jackson v. San Francisco case, the Peruta and Richards cert petitions will be denied leaving just my California Open Carry case – Charles Nichols v. Edmund G. Brown Jr. et al.

“[A] right to carry arms openly: ‘This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.'” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809

“[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.

“In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the ‘natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right…Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.'” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809

“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251…” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 281

Charles Nichols is the President of California Right To Carry