Supreme Court Again Silent on Second Amendment

Supporters and opponents of the Second Amendment have waited seven and a half years for a final decision in the case of Peruta v. California (formerly Peruta v. San Diego).

This morning we learned that we are going to have to wait a little longer.

What started off as a singular quest for one man, Edward Peruta, to simply obtain a concealed carry permit (CCW) from San Diego Sheriff Gore by his filing a lawsuit challenging his denial of a CCW on October 23, 2009, turned into a war by the NRA lawyers against the Second Amendment right to openly carry firearms in public and a war by the NRA lawyers in support of California’s Gun-Free School Zones which extend 1,000 feet from every K-12 public and private school.

According to the NRA lawyers who represent Mr. Peruta, you do not have the right to openly carry a firearm in public. Whatever Second Amendment right you might have, the government may place any number of restrictions on your right and the exercise of your right can be conditioned upon your having a government issued permission slip (CCW) in order to exercise your right.

In the Peruta case, the NRA lawyers also argued that overturning the California Gun-Free School Zone Act of 1995 would be, in their words, “drastic.”

That is a peculiar position to take by an organization which bills itself as the nation’s largest gun-rights group. And a bizarre position to take given that concealed carry in public is not a right under the Second Amendment, travelers and persons while actually on a journey notwithstanding.

UCLA Professor of Law, Adam Winkler, believes that the US Supreme Court will eventually deny the petition to rehear the case, as do I.

Adam Winkler (born July 25, 1967) is a professor of constitutional law at the UCLA School of Law. He is the author of Gunfight: The Battle over the Right to Bear Arms in America,and a commentator about legal issues. This photograph is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license.

I have extensively written on why I believe that the Supreme Court will deny review. The high court will deny review if for no other reason than the en banc decision of the 9th Circuit Court of Appeals does not conflict with any US Supreme Court decision and it does not conflict with any Federal appellate court decision.

There is a decision by the Florida Supreme Court which does conflict with multiple Supreme Court decisions and which creates a split with every Federal court of appeals. That case, Dale Lee Norman v. State of Florida is a perfect candidate for the Supreme Court to review.

The Peruta v. California cert petition was reviewed in private conference by the justices of the US Supreme Court last Friday. The following Monday morning, May 1, 2017, the Supreme Court released its Orders list of cases which have been denied cert and cases which have been granted cert.

Peruta v. California does not appear on the list. All that means is that the cert petition was not denied this morning.

The Peruta v. California cert petition will very likely be relisted and be reviewed again by the justices in private conference. The next such conference is on May 11, 2017. The Orders list will be published by the court on the morning of May 15, 2017.

It takes one vote to relist a cert petition. It takes four votes to grant a cert petition. It takes five votes for one side or the other to win once a cert petition has been granted.

Every now and then the Supreme Court will hold a case until a better case files its cert petition, in this instance that case would be Norman v. Florida.

Other reasons a case is relisted is for three justices to find a fourth justice to vote to hear a case or, more likely in the Peruta case, to give one or more justices time to write a concurrence or dissent in the denial of a cert petition.

All we can say for certain at this point is that the Peruta v. California cert petition survived its first conference.

It remains to be seen if the Peruta cert petition will survive another conference of justices.