On October 23, 2009, Ed Peruta filed his lawsuit seeking a concealed carry permit from San Diego Sheriff Gore. That was 2,768 days ago and Mr. Peruta is still waiting for a final resolution of his lawsuit. His cert petition was rescheduled for this Thursday. The results of this Thursday’s conference of justices will be released on Tuesday morning, May 30th.
Statistically speaking, the probability of the US Supreme Court deciding to hear Mr. Peruta’s appeal will drop to 6.6% if his cert petition is not granted in the next conference. This is still better than the 1 in 100 chance he had when his cert petition asking the Supreme Court to review his case was first filed but playing Russian Roulette has better odds of success.
Recognizing that cert petitions are not ball bearings and might not be amenable to the same statistical analysis as mass produced objects, the success or failure of a cert petition is often dependent upon arcane rules, procedures and (to be honest) personal whims of the justices.
One thing we know for certain is that it takes the vote of four justices to grant a cert petition and after having been considered in three private conferences by the justices, there have not been four justices who have voted to grant Mr. Peruta’s petition.
There are so very many reasons why the Peruta cert petition should be denied, it is remarkable that it has survived as long as it has.
An “honest lawyer” (I know, you might think this a contradiction in terms) would tell you that Peruta’s lawyers bungled his case. Or at least his NRA lawyers did so after entering his case, as Mr. Peruta was doing pretty well with his lawsuit up until the NRA lawyers appeared on the scene.
On November 30, 2011, I filed my lawsuit seeking to overturn California’s 1967 ban on openly carrying loaded firearms in public. That was 2,000 days ago. My appeal is still pending before the 9th circuit court of appeals and has been pending since May 27, 2014. Three years ago this month.
I amended my lawsuit to challenge California’s prohibitions on openly carrying unloaded firearms and prohibitions on issuing licenses to openly carry loaded handguns to persons who reside in counties with 200,000 or more people.
My lawsuit, Charles Nichols v. Edmund Brown, Jr., et al, is uncomplicated. Either the modern Supreme Court decisions on the Second Amendment meant exactly what they said, in which case I win, or they mean the exact opposite of what they said (which is the basis of Mr. Peruta’s cert petition).
I have one more advantage in my Open Carry appeal. Neither California Governor Brown nor California Attorney General Becerra, the defendants in my lawsuit, argue that my Second Amendment claim conflicts with the Second Amendment right as defined by the US Supreme Court.
Instead, their argument is that the US Supreme Court got it wrong.
Of course when Mr. Peruta’s appeal was before the en banc panel of the 9th circuit court of appeals, the California Solicitor General argued that the Supreme Court got it right in that there is a right to openly carry firearms beyond the curtilage of one’s home but there is no Second Amendment right to carry a weapon concealed in public.
For me to lose, the 9th circuit court of appeals would have to issue a decision stating that the Supreme Court was mistaken in its interpretation of the Second Amendment. The judges on the Peruta en banc panel didn’t have to do that. They held, 7-4, that SCOTUS was right when it said there is no right to carry a concealed weapon in public. The same panel dodged whether or not there is a right to openly carry a firearm in public because none of the Peruta plaintiffs sought to carry a firearm openly. Indeed, Peruta’s NRA lawyers argued that states can, should and must ban Open Carry in favor of concealed carry.
But the Supreme Court will not have to wait for the 9th circuit court of appeals to decide my case or have to decide the Peruta case. The Florida Supreme Court in a sharply divided decision held that the Supreme Court got it wrong when it said that Open Carry is the right guaranteed by the Constitution and that concealed carry is not a right.
That case is Dale Lee Norman v. State of Florida. Mr. Norman’s cert petition is due this summer.
There is a small chance the Supreme Court might hold Mr. Peruta’s cert petition until after it has reviewed Mr. Norman’s cert petition.
And who knows? By then we might have a court of appeals decision in my California Open Carry lawsuit. If I win before there is a final decision in Mr. Peruta’s case then Mr. Peruta’s cert petition becomes moot.