Two weeks from today on March 24, 2017 all eight justices of the United States Supreme Court will meet in a private conference and decide the fate of 160 petitions to the high court asking for one last bite at the judicial apple.
The NRA concealed carry cert petition, which will be considered on that day two weeks from now, is a case arising out of California. The name of the case was Peruta v. San Diego in the district courts and on appeal. It is now called Peruta v. California because the San Diego Sheriff who was originally a defendant in the case decided not to put up a defense after a now vacated and sharply divided three judge panel decision was published. The State of California intervened and is now defending its state laws.
The chances of the Supreme Court granting a cert petition is about 1 in 100 overall. When looking at a particular cert petition it becomes fairly easy to predict whether or not a cert petition will be granted or denied.
I have written about the lack of a SCOTUS Rule 10 split almost always being fatal to a cert petition but the NRA lawyers have shot themselves in the foot so spectacularly in its latest concealed carry case I must share with you a beautiful twist to the story of why the Peruta cert petition is dead on arrival.
Reporters and the thousands of people who pontificate on the Internet never read the pleadings and briefs filed in a lawsuit. They do not listen to the oral arguments, they do not read prior court decisions on the subject, they are oblivious to the Rules of the Courts. They are uninformed. But that does not prevent them from bloviating their uninformed and wrong opinions.
Case in point. The NRA told the 9th circuit court of appeals that states can, should and must ban the Open Carry of firearms in favor of concealed carry in its Peruta appeal and since California had banned Open Carry, they had a Second Amendment right to carry handguns concealed.
That was the only question before the 9th circuit court of appeals and that was the only question decided by the 9th circuit – There is no right under the Second Amendment for a member of the general public to carry a handgun concealed in public and banning something which is a right (Open Carry, which the court did not decide) does not create a right to do something which has never been a right (concealed carry).
Having lost before the 9th circuit court of appeals and not having a SCOTUS Rule 10 split to argue in favor of SCOTUS granting its cert petition, the NRA lawyers decided to do what lawyers and that is to lie. The NRA lawyers raise a different question, for the first time, before the Supreme Court in its cert petition. The question presented to SCOTUS is:
Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.
Peruta v. California Cert Petition
Take careful note, the question the NRA raises now is not the question which was decided by the 9th circuit court of appeals which is reason enough why the Peruta v. California cert petition will be denied. The justices of the United States Supreme Court do not decide questions of law which are raised before them for the very first time.
Ed Peruta and his fellow plaintiffs never once sought to carry a handgun outside of the home “in some manner.” They applied for and were denied concealed carry permits. They did not seek to openly carry a handgun (or openly carry any firearm) anywhere or at any time.
The NRA Error
But just to show that the gods have a sick, twisted sense of humor – After the NRA filed its cert petition with SCOTUS and after the State of California had filed its Brief In Opposition, the Florida Supreme Court held that states can ban Open Carry in favor of concealed carry (Norman v. State). It is the only state high court to so hold. Every other state court of last resort, including California’s, has held that concealed carry is not a right under the Second Amendment.
The delicious irony is that if the NRA had stuck with its original argument that states may ban Open Carry in favor of concealed carry, it would now have a SCOTUS Rule 10 split in favor of SCOTUS granting its cert petition.
Had the NRA stuck with its original argument, it could have filed a supplemental brief on the Norman v. State decision in support of its cert petition be granted.
For those of you wondering, it became too late for the NRA to change its argument the moment it filed its cert petition with SCOTUS.
Because of this colossal screw up by the NRA lawyers, the Norman v. State decision was not even a footnote in the NRA’s Reply Brief filed on March 7th. It was just one citation among many to which the Federal circuit courts of appeals and state courts of last resort have decided Second Amendment questions.
The NRA tried once again to shoot my California Open Carry appeal in the back in its Reply Brief filed in the Peruta case. The State of California had told SCOTUS that it should wait for my appeal to be decided in its brief. The NRA, in its reply brief said that my appeal “is littered with procedural irregularities and other deficiencies.”
What the NRA failed to mention is that it is the state’s attorney representing Governor Brown and Attorney General Becerra who made these mistakes. Which is why the state’s attorney who asked in his brief that my appeal be sent back to the district court so that he can correct the mistakes he made the first time around. In my Reply Brief I opposed the remand for the obvious reasons that none is warranted under the law. The state was given ample opportunity to defend California’s Open Carry bans. There are no questions of fact for a jury to decide, all that remains in my California Open Carry appeal are pure questions of law.
The NRA lies. Enough said.
My website contains links to the briefs and oral arguments filed in Peruta v. San Diego (now v. California), Norman v. State and my California Open Carry appeal which is pending in the 9th circuit court of appeals – Nichols v. Brown and other cases. They are freely available for everyone to read and learn from.