Edward Peruta, the lead plaintiff in the California Concealed Carry lawsuit which, as of this writing, is still pending before the United States Supreme Court, made it clear how he feels about the Federal and State courts.
Mr. Peruta says that the courts are like casinos where the judges makes up the rules as they go along and where the judges sometimes let people win just to give false hope to the rest of us that there is a chance of obtaining justice in a court of law.
Mr. Peruta is correct. But that isn’t why he lost his concealed carry case here in the 9th circuit court of appeals and it isn’t why his appeal to the US Supreme Court will likely be denied.
Despite what Mr. Peruta’s NRA lawyers tell the stubbornly uninformed press and public, Mr. Peruta never sought a license to openly carry a loaded handgun in California. His NRA lawyers argued that Open Carry can, should and must be banned in favor of concealed carry. His NRA lawyers also told the court that overturning California’s Gun-Free School Zone Act of 1995 would be “drastic” but that is a topic for another day.
An en banc panel of the 9th Circuit Court of Appeals did not make up the rules in Mr. Peruta’s case. For over 200 years in American state and Federal courts the courts have held that there is no right to carry a weapon concealed under the Second Amendment. For nearly 500 years, the English courts and English law (which applied to the English colonies in America) severely punished the use, and sometimes mere carriage, of concealed weapons going back nearly 500 years. Some of those laws both under English law and the laws of post-Revolution states prohibited the mere carriage of firearms which were concealable, regardless of whether or not they were in fact concealed.
When Mr. Peruta filed his lawsuit against San Diego Sheriff Gore for not issuing him a license to carry a loaded handgun concealed, the “house rules” clearly stated that if you are going to bet that concealed carry is a right under the Second Amendment then you will lose that bet.
Mr. Peruta’s lawyers rolled the dice on the theory that when they rolled “snake eyes” that the house stickman would look at it and say he rolled “eleven.”
In 2014, two of three judges on a sharply divided panel of judges said they didn’t like the house rules and declared Mr. Peruta a winner. A majority of the active judges on the 9th circuit court of appeals voted to convene a panel of eleven judges in order to decide whether or not to decide to change the rules. That vote to convene an en banc panel of eleven judges vacated (voided) the decision of the two judges on the three judge panel.
By a 7-4 vote, the en banc panel said that it was not going to change the house rules and held that there is no right of the general public to carry a weapon concealed under the Second Amendment.
The US Supreme Court has its own set of “house rules.” One of those Rules (#10) says that the justices are unlikely to take a case unless a decision of a state court of last resort or a Federal court of appeals issues a decision which conflicts with (creates a split) another like court on a question of Federal law.
The 9th circuit court of appeals bent over backwards in order to avoid issuing a decision which conflicted with any Federal circuit court of appeals or any state court of last resort.
For this reason alone the Peruta v. California (formerly Peruta v. San Diego) cert petition should have been denied.
But as proof that the gods have a sick, twisted sense of humor, while the Peruta cert stage petitions were still being briefed the Florida Supreme Court published a decision which created a split with the 9th circuit decision in the Peruta case as well as creating a split with every Federal court of appeals and with every state court of last resort which has ever issued a decision on the Second Amendment.
If Mr. Peruta’s cert petition is granted it will be because of the “house rules” of the US Supreme Court and not because the house changed the rules.
Technically, it is the Florida Supreme Court’s decision in Dale Norman v. State of Florida which created the split between the courts, not the Peruta decision. Strictly speaking, it is Mr. Norman’s cert petition (due this summer) which should be granted and not Mr. Peruta’s.
If Mr. Peruta’s cert petition is granted it will be because the “house” (SCOTUS) has bent the rules and if Mr. Peruta wins it will be because the US Supreme Court has decided to rewrite the rules.
Mr. Peruta has a better chance of winning the lottery than he has of winning in the end.
Regardless, there are now multiple split decisions for the US Supreme Court to resolve. The high court can do a number of things. It can deny the Peruta cert petition and wait for the Norman cert petition to be filed. It can hold the Peruta cert petition and wait for the Norman v. State of Florida cert petition to be filed and either combine the two cases or hold one of them until it decides the other.
And if there is a decision in my California Open Carry appeal, Nichols v. Brown, which is still pending before the 9th circuit court of appeals, my win would moot the Peruta case and my loss would add another piece to the US Supreme Court chessboard.
Mr. Peruta’s comments on the courts (starting at 33:23) can be viewed on his YouTube channel by watching the video below.