California's refusal to allow carry of firearms: Unconstitutional

[Bone]

Many updates.

Last Thursday the state attorney general Kamila Harris, the Brady Campaign, and the Police Unions petitioned the court to be have intervenor status. I think this means they want to be able to petition for en banc since SD Sheriff Gore is not. The court stayed the ruling and gave until March 26 (pdf) for everyone to respond to the petitions.

It’s a 180 turn for the Attorney General since at various stages of this lawsuit she successfully moved to be excluded. A press release from the NRA lawyers to that effect:

The Attorney General’s office was repeatedly invited to participate in this case both by Sheriff Gore’s attorney, and by the plaintiffs. The Attorney General declined to participate in the case, just as she has refused to get involved in similar cases challenging policies in other cities and counties that refused to accept self-defense as justification to get a license to carry a firearm in public to defend yourself and your family.

In fact, when the Attorney General’s office was named as a defendant in some of those cases, it has successfully moved to be dismissed from the cases because the court has accepted the Attorney General’s argument that she is not the official vested with the authority of the state when it comes to administering these licenses – the Sheriff is.

Excerpts from Mehl:

1. “Since only sheriffs and chiefs of police have authority under the CCW statutes to grant, deny or revoke licenses, Applicants cannot establish Article III jurisdiction over the Attorney General with regard to their facial challenges to the validity of the statutes or for review of the Sheriff’s refusal to grant their CCW licenses.”

2. “Only sheriffs and chiefs of police are authorized to perform these functions. . . . Contrary to Applicants’ implication, the Attorney General is not authorized by the CCW statutes to review the decisions of the sheriffs and chiefs of police. Because Applicants’ alleged injury can occur only through the actions of the Sheriff, independent of the authority of the Attorney General, any ostensible harm cannot be traced to the Attorney General.” Mehl v. Blanas.

It is ironic that the Attorney General does not recognize that the arguments she made about her authority to abandon the defense of the gay marriage ban apply equally here. The Sheriff has the ultimate authority to decide whether to continue to fight this case, and he has made his decision to refrain from doing so. But now that it suits her political agenda, Kamala Harris wants the court to impose a double standard.

Since that time, the 9th circuit has ruled on a similar case in Yolo County,Richards v. Prieto (pdf) won by the SAF and Calguns, argued by Alan Gura. The opinion says it’s unpublished - I don’t know what that means? Does that mean it’s not precedential? In any event, the ruling went the same way and Yolo’s issuance policy was struck down.

There is a similar case now in Hawaii, Baker. Hawaii has no issuance, vs. CA has may issue. The same 3 judge panel heard all three cases and I expect Baker will be ruled the same way.

Now that Gore has stated he’s not going to petition for en banc and the Peruta ruling stayed, there are a couple ways this can go:

[ul]
[li]Yolo can request en banc, or petition for cert[/li][li]Baker (if they win) can request en banc, or petition for cert[/li][li]the 9th can grant intervenor status to any of the 3 groups above and they can request en banc, or petition for cert.[/li][/ul]

The only thing I’m sure of is lawyers are making money.

[Really_Not_All_That_Bright]

The NRA’s lawyers are. The Attorney General isn’t.

[Damuri_Ajashi]

I don’t know if the lawyers on the amicus briefs are being paid but there are a lot of high priced lawyers that are signing some of those briefs mostly for the anti-gun side. Although Paul Clement is representing Peruta (along with lead attorney Michel).

As near as I can tell. the state has no dog in this fight. The lawsuit was questioning the constitutionality of local policies and interpretations of the otherwise constitutional law.

[Gray_Ghost]

@Bone

…Since that time, the 9th circuit has ruled on a similar case in Yolo County,Richards v. Prieto (pdf) won by the SAF and Calguns, argued by Alan Gura. The opinion says it’s unpublished - I don’t know what that means? Does that mean it’s not precedential?..

Yep. The note at the bottom of the first page of your linked opinion mentions that it’s not precedent, except as Rule 36-3 applies. Rule 36-3 says:

(a) Not Precedent. Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion…

…(c) Citation of Unpublished Dispositions and Orders Issued before January 1, 2007. Unpublished dispositions and orders of this Court issued before January 1, 2007 may not be cited to the courts of this circuit, except in the following circumstances.
(i)
They may be cited to this Court or to or by any other court in this circuit when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion.
(ii)
They may be cited to this Court or by any other courts in this circuit for factual purposes, such as to show double jeopardy, sanctionable conduct, notice, entitlement to attorneys’ fees, or the existence of a related case.
(iii)
They may be cited to this Court in a request to publish a disposition or order made pursuant to Circuit Rule 36-4, or in a petition for panel rehearing or rehearing en banc, in order to demonstrate the existence of a conflict among opinions, dispositions, or orders.

For all that verbiage, it’s actually a pretty narrow set of circumstances in which you can cite an unpublished case to the Court. IANAL, but it looks like you can’t even cite them for advisory purposes, at least according to how I read this Rule.

[ExTank]

@Really_Not_All_That_Bright

Sure, but considering the NRA-ILA is promoting “carry wherever the fuck you like” legislation, it is extremely hypocritical if they don’t allow carrying at their convention.

As a bargaining tactic, I’m all for “carry wherever the fuck you like” legislative proposals.

Because, realistically, there are places you shouldn’t, and those opposed to any form of carry at all will try to expand those limits as much as they can. Somewhere between, they’ll meet.

That’s my definition of reasonable compromise.

[pkbites]

@ExTank

Because, realistically, there are places you shouldn’t

Care to list a few?

[Damuri_Ajashi]

@pkbites

Care to list a few?

A prison?

[ExTank]

@pkbites

Care to list a few?

Banks, police stations, and court houses/government buildings are some of the few that are usually listed as no-carry-allowed locations (but these may also vary by jurisdiction), and arguments can be made either way for allowing/disallowing in those locations.

I generally think it’s better for the general public to not be armed in those places, as people get twitchy around large sums of cash, and tempers can run high in police stations, court houses, and government buildings.

[Bone]

Government buildings seem too broad. What about city owned property that is rented for bingo night? Why should the bingo parlour be any different if its owner is the city or a private entity?

I’m okay with carry restrictions at any place that takes responsibility for the safety and security of the people who are present. That means ensuring there are no contraband weapons by searching (courthouses, airports, prisons, etc) AND provides for secure storage of personal weapons. If there is an incident the venue would take legal and fincial responsibility for the well being of everyone present. No governmental immunity. If a place isn’t willing to dothat then carry should be presumptively permitted .

[ExTank]

Yeah, “government building” covers a lot of ground; I was actually thinking government administrative buildings (Mayor’s Office, Tax Assessors Office, Child Services Office, etc) when I wrote that, not for-rent civic halls and such.

Although in a small enough town, many of those same offices might be co-located with the rental hall (it certainly was in the town I grew up in), so it’s a toughie to sort them out.

And I agree in spirit with the second half of your post.

[pkbites]

@ExTank

Banks

Nonsense. Give me some significant stats about lawfully armed citizens causing trouble in a bank. Going in/out of a bank is actually a good time to be armed. Potential muggers may target you thinking you have a large amount of cash.

@ExTank

government buildings

As stated by others and agreed by you, too broad! A highway rest stop is a government building.
When alone and traveling is another good time to be armed.

@Damuri_Ajashi

A prison?

Agreed. Unless one works there as a tower guard.

[Damuri_Ajashi]

@pkbites

Nonsense. Give me some significant stats about lawfully armed citizens causing trouble in a bank. Going in/out of a bank is actually a good time to be armed. Potential muggers may target you thinking you have a large amount of cash.

My dad had a carry permit in NYC specifically for trips to the bank.

Also airplanes. I don’t think you should be able to carry on airplanes.

[PhillyGuy]

@Bone

There is nothing hypocritical in saying that carry in general is part of the right in the 2nd while at the same time certain restrictions are permissible.

Maybe not, but there is something tremendously hypocritical in legalizing guns in the most dangerous parts of Washington DC while outlawing them in your the well-guarded building you happen to work in.

@Bone

No right is absolute and there is no contradiction here.

The constitution forbids “unreasonable searches and seizures.” That word unreasonable makes the right non-absolute. Contrast that with the second amendment. It doesn’t just establish a right. It says the right cannot be infringed. If you chip away at it, you are infringing it. The only disagreement between myself and gun enthusiasts is what infringements we favor – and actually not so much there, as I am much more enthusiastic about voluntary disarmament than, say, British-style gun control.

@pkbites

35k+ killed in auto wrecks every year is also a minuscule number but it’s over 3 times more than those killed with firearms.

This post was insulted by one of my fellow posters, but the factual claim seems to have been skipped over.

For the most recent year I can find statistics for both (2011), 32,367 Americans died in vehicle accidents, and 32,163 were shot to death. So your “over 3 times more” is rather far off.

Sources:

http://www.gunpolicy.org/firearms/region/united-states

http://www-nrd.nhtsa.dot.gov/Pubs/811701.pdf

Significance to this debate? Not much. Both guns and cars cause enormous suffering, and their dangers deserve multiple Straight Dope threads. The most plausible ways that we might mitigate the tragedies (fewer guns vs. safer cars) are mostly different. Driving less and/or not buying a car when you live where there is transit are also both good.

As shown in the links above, the long-term trend has been a increase in gun deaths (roughly tracking population increase), while vehicle death are going down. This should not lead to complacency over either.

@Damuri_Ajashi

You do realize that gun violence has been dropping over the last few decades despite an increase in the number of guns, don’t you?

As noted above, no, I don’t.

I realize there has been a bit of a trend, in the US, towards the permanent solution to a temporary problem being to shoot yourself rather than someone else. But getting shot to death is violence, either way.

[magnusblitz]

@PhillyGuy

The constitution forbids “unreasonable searches and seizures.” That word unreasonable makes the right non-absolute. Contrast that with the second amendment. It doesn’t just establish a right. It says the right cannot be infringed. If you chip away at it, you are infringing it.

I think you’re splitting hairs, here. The obvious counter-argument is that while it says “the right shall not be infringed,” what that right “is” isn’t clear, and every law and legal opinion related to it has been defining what the right is or is not.

Compare the First Amendment - “Congress shall make no law… abridging the freedom of speech.” There’s no mention of “unreasonable.” But there are plenty of restrictions on the freedom of speech.

[PhillyGuy]

@Damuri_Ajashi

I don’t think you should be able to carry on airplanes.

The idea is a political non-starter. But I don’t see how a gun enthusiast could say it, since arguments for carrying a gun on the ground also apply in the air.

Surely, if the almost half of adult Americans, who are gun-owners, brought one with them on the plane, it would bring down the tiny risk of hijacking even lower. And what about the gun enthusiast claim that an armed society is a polite one? Surely politeness is at least as important in the air as on the ground.

As for the idea that a couple bullet holes will bring down a modern aircraft, this is highly implausible. World War II bombers, including the pressurized B-29, routinely took dozens, even hundreds, of hits, and flew on. Modern aircraft, with their multiple redundant systems, are far stronger. I guess it’s conceivable that a bullet would blow out a window, and that if the passenger in the seat next to it didn’t obey the lightly-fasten-your-seat-belt advice, they would be blown out of the plane. But this is unlikely, and no one claims that the second amendment never claims innocent lives. Instead, you guys believe the net effect is beneficial. So let’s put it to the test in an environment where there will be lots of witnesses every time a lawful gun owner brandishes a weapon against a supposed attacker. Then, someone can do a scientific study to see if the claims about how being able to brandish a gun when threatened actually, on average, gives beneficial protection, are really true.

[gatorslap]

@PhillyGuy

The constitution forbids “unreasonable searches and seizures.” That word unreasonable makes the right non-absolute. Contrast that with the second amendment. It doesn’t just establish a right. It says the right cannot be infringed. If you chip away at it, you are infringing it.

That’s not what the word “infringe” means.

[PhillyGuy]

@magnusblitz

I think you’re splitting hairs, here.

Close to that. Hair is to the body as a fringe is to a garment, or, in this case, a right. Both are on the edge. The edge of the right is what you aren’t allowed to cut.

Checking Dr. Johnson’s eighteenth century dictionary, the word infringe isn’t there, so I guess we will have to disagree on what infringe means.

The obvious counter-argument is that while it says “the right shall not be infringed,” what that right “is” isn’t clear, and every law and legal opinion related to it has been defining what the right is or is not.

I don’t disagree, but the implication is that when the makeup of the Supreme Count changes, however they rule, they still will be defending the second amendment. Second amendment supporters aren’t, I thought, arguing that ever-changing case law is sacred, but that we should respect the words of the constitution itself. And when the friends of guns justify infringements – especially ones that the founders would never have conceived, such as an age limit on the right to arm oneself – they are being living constitutionalists, just like the most liberal of our justices.

[Bone]

@PhillyGuy

Maybe not, but there is something tremendously hypocritical in legalizing guns in the most dangerous parts of Washington DC while outlawing them in your the well-guarded building you happen to work in.

What makes that hypocritical, exactly? Can you explain it?

The constitution forbids “unreasonable searches and seizures.” That word unreasonable makes the right non-absolute. Contrast that with the second amendment. **It doesn’t just establish a right. **It says the right cannot be infringed. If you chip away at it, you are infringing it. **The only disagreement between myself and gun enthusiasts is what infringements we favor **-- and actually not so much there, as I am much more enthusiastic about voluntary disarmament than, say, British-style gun control.

(my bold)
This is like saying the only difference between an anarchist and a statist is the amount of government is acceptable. Possibly true, but meaningless none the less.

And just to clarify - the 2nd amendment doesn’t establish anything. It recognizes a pre-existing right.

[Really_Not_All_That_Bright]

That is just as meaningless a statement as the one you are objecting to above it. Guess what? If the Second Amendment is repealed, you will no longer have the right to carry firearms.

[Bricker]

@Really_Not_All_That_Bright

That is just as meaningless a statement as the one you are objecting to above it. Guess what? If the Second Amendment is repealed, you will no longer have the right to carry firearms.

“…no longer have a federal constitutional right.”

State constitutions may mirror, to some lesser or greater degree, the right.