After having been rescheduled four times for consideration by the justices in their private conferences in which the nine justices vote on whether or not to grant petitions to review a case, the NRA Peruta v. California (formerly Peruta v. San Diego) concealed carry case was finally considered by the justices for the first time on April 28, 2017.
The petition was relisted to the next conference, and then the next and the next and so on when, this morning, it was relisted for the conference of June 8th. That will make the sixth time the Peruta cert petition will have been considered in conference.
So far this term, no cert petition had been granted after its fourth relist. That was until this morning when SCOTUS granted a cert petition which had been relisted six times before being granted.
Statistically, that still means that there is some chance that the Peruta cert petition will be granted but I am in rare agreement with Peruta’s lead counsel, NRA lawyer Chuck Michel, that the cert petition is dead. However, he and I disagree somewhat on why it is taking so long for the cert petition to be denied.
Early this morning in a post on Facebook, Mr. Michel said the delay of the denial of the Peruta cert petition is likely because one or more justices are writing a dissent to the denial of cert, meaning these justices would have granted the cert petition if they had enough votes (4) to grant the petition, their dissent explains why they would have voted to hear the case on its merits.
My theory is that the delay is because one or more justices is writing a concurrence to the denial of cert, meaning these justices agree with the justices voting to deny the cert petition and their concurrence explains why they agree with the denial.
For over 200 years, American state courts have held that there is no right to carry a concealed weapon in public. Since 1897, the US Supreme Court has said that there is no right to carry a weapon concealed three times and, in a fourth (unanimous) decision, implicitly reaffirmed that concealed carry is nor a right under the Second Amendment.
There are only three conferences left in the current Supreme Court term. It is most likely that we will have a formal denial of cert by the morning of June 26th at the latest.
After the Peruta cert petition is denied, all eyes will turn on a lawsuit which lost before the Florida Supreme Court which challenges that state’s ban on openly carrying firearms.
The US Supreme Court said that Open Carry is the right guaranteed by the Constitution. The Florida Supreme Court, in a narrow, 4-2-0 decision, said it does not care what the US Supreme Court said. It held that Florida can ban Open Carry in favor of concealed carry.
The cert petition, or a request for an extension of time, in Dale Lee Norman v. State of Florida is due in 37 days.
In the 9th circuit court of appeals, my appeal challenging California’s Open Carry bans is still pending and will likely still be pending until SCOTUS finally decides what to do with the Peruta concealed carry case.
My lawsuit, Charles Nichols v. Edmund Brown, Jr., et al, was filed in November of 2011 in the district court and my appeal has been pending for over three years. The 9th circuit says that appeals are given priority based on the filing date of the appeal and not on the date in which the appeal is fully briefed.
There have been several Second Amendment appeals heard (and even decided) which had a lower priority than my appeal and yet still I wait.
There is one another appeal, from Hawaii, in which the lone plaintiff sought a permit to carry a weapon in public (openly or concealed) which has been waiting longer than I have but his appeal is screwed up beyond repair and I am surprised it has not been disposed of by now. That case is Young v. Hawaii.
Every first year law student is taught that the courts cannot write their own laws in place of a legislature and they cannot order legislatures to write laws. Courts can overturn laws but they can’t write them.
Having twice been denied a permit to carry a “weapon” openly or concealed while Mr. Young represented himself in the district court, Mr. Young has standing to challenge the denial of his license for Open Carry, not concealed carry.
Mr. Young obtained an attorney for his appeal. Instead of his attorney asking the court to issue an order instructing that Mr. Young be granted a license to openly carry a handgun in public, Mr. Young’s attorney asked for the court to issue an order that the Hawaii law be rewritten.
That’s right, Mr. Young’s attorney asked the courts to do the one thing courts are all in agreement that they can’t do and that is to order the legislature to write a law.
It is going to be a long, hot summer.