Five Gun Rights Cases to Watch in CA

[Fear_Itself]

@Magiver

I’m sorry but I actually started laughing at that. That is one messed up state. 24 hr turn on my CCW license. And I could pick it up any time day or night.

Wouldn’t it be nice if it were as easy to get voter ID as it is to get a concealed carry permit?

[iamthewalrus_3]

@Bone

I understand the idea for new purchasers, but why would a person who has 100 guns already need a cooling off period?

How should it be determined that someone attempting to buy a gun already has guns and thus should be exempt from the cooling off period?

[Bone]

@Fear_Itself

Wouldn’t it be nice if it were as easy to get voter ID as it is to get a concealed carry permit?

Yes - it would be very nice. Here’s what you need to do in CA to get a CCW:

[ul]
[li]Show good cause (impossible in populated counties)[/li][li]Show good moral character (no arrests, no convictions, no excessive moving violations, in some counties)[/li][li]Pay the application fee (about $150)[/li][li]Take a training course could be classroom and live fire[/li][li]Pay for background check[/li][li]Pay for investigation/registration, etc.[/li][li]Submit to fingerprint and criminal background check[/li][li]Submit to psychological test (in some jurisdictions)[/li][li]Renew the permit every 2 years, paying fees each period approximately $200.[/li][li]Bribe [donate] to the local sherrif’s reelection campaign[/li][/ul]

On the other hand, here is what it takes to get a state issued ID card:

[ul]
[li]Fill out application[/li][li]Give thumbprint[/li][li]take picture[/li][li]SSN (If you are ineligible for a SSN but are legally present in the U.S., you can still apply for a CA ID card.)[/li][li]Document to prove date of birth or legal presence[/li][li]Pay fee of $28[/li][li]It’s valid for 6 years and can be renewed by mail[/li][/ul]

Virtually everyone can get an ID in CA. Virtually no one can get a CCW in CA.

This thread isn’t about voter ID. The two issues aren’t remotely related.

@iamthewalrus_3

How should it be determined that someone attempting to buy a gun already has guns and thus should be exempt from the cooling off period?

This is covered in the court case:

After considering the evidence and the arguments, the Court concludes that Penal Code §26815(a) and § 27540(a)‟s 10-day waiting periods impermissibly violate the Second Amendment as applied to those persons who already lawfully possess a firearm as confirmed by the AFS, to those who possess a valid CCW license, and to those who possess both a valid COE and a firearm as confirmed by the AFS system, if the background check on these individuals is completed and approved prior to the expiration of 10 days.

AFS is the CA system for firearm registries. CA requires a background check of every purchase of a firearm and there is a registry of all firearms purchased that is maintained. Certain C&R and home builds are excluded. I believe the registry for handguns started in the 90s and the registry for longuns was just a few years ago.

[iamthewalrus_3]

@Bone

AFS is the CA system for firearm registries. CA requires a background check of every purchase of a firearm and there is a registry of all firearms purchased that is maintained. Certain C&R and home builds are excluded. I believe the registry for handguns started in the 90s and the registry for longuns was just a few years ago.

Thanks. I wasn’t aware that there was a registry of gun owners. Seems reasonable to not require a waiting period for additional guns, then.

[Bone]

Regarding case #5 - Peruta -

Not only did Brady and the AG request en banc review of the denial to allow them to intervene, but yesterday a judge in the 9th circuit has called for (pdf) an en banc review of the original Peruta decision sua sponte. So now I think the full court will vote on whether to review the case en banc (which in the 9th actually isn’t the full circuit, just 10 judges and the Chief Justice). This makes two separate and distinct requests for en banc review. Here is a Volokh article on the matter. The court has given 21 days for people to file responses. Not sure when the full court votes.

I think the request for review en banc of the Brady group and the AG’s request to intervene will be denied. I think it’s a given that either Peruta, Richards, or Baker will go en banc. Only one will though, IMO.

[Magiver]

@Fear_Itself

Wouldn’t it be nice if it were as easy to get voter ID as it is to get a concealed carry permit?

Voter ID doesn’t require class time, is free and can be done at time of registry.

[Bone]

Regarding #5 above - the full circuit votes on whether to grant en banc review of Peruta. If they grant, then the case is reheard in front of a 10 judge panel and the chief justice. Before December 1st, the chief justice was Alex Kozinski. He has been a supporter of 2nd amendment rights in the past and a Reagan appointee. However, as of Dec 1, the chief justice is Sidney R. Thomas, a Clinton appointee. He happens to be the dissenter in the original Peruta 2-1 decision so it’s no surprise his take on this.

There is suspicion that detractors of the Peruta decision among the circuit judges were waiting to call for en banc until Thomas became chief. A question that I don’t know is if a member of the original panel can call for en banc sua sponte. Anyone know that? I couldn’t determine it based on theGeneral Orders for the 9th Circuit. I was also surprised that Kozinski is no longer chief judge. I assumed it worked like SCOTUS and chief was chief until they stepped down. Anyone know why he’s no longer chief or what the process for selecting a new one is?

[Damuri_Ajashi]

@Scumpup

I’m not understanding that, either. It’s okay to inconvenience people who want a prescription filled just for the sake of inconveniencing them? Why is that?

Perhaps he’s talking about a 9 month cooling off period for the abortion pill.

[Damuri_Ajashi]

@ExTank

Have you seen modern printing “presses?” Those are fully-automatic printing machines, and as such, we need the text of each page, before it is actually printed, to be sent to the BATF for approval, with a $200 tax per page.

The BATF will then approve/deny the printing of each page, and issue a tax-stamp for same, that must be kept on file by the printer, and presented on-demand to a BATF auditor who has the unlimited right-of-inspection, 24/7/365.

Don’t you also need the local law enforcement officer to approve the pages too?

[Fear_Itself]

@Magiver

Voter ID doesn’t require class time, is free and can be done at time of registry.

How many locations are there in Texas that process voter ID’s, versus how many locations that process concealed carry permits? That was my point.

[Damuri_Ajashi]

[quote=“Bone, post:1, topic:705089”]

[LIST=1]
[li]Silvester v. Attorney General Harris…[/li][/QUOTE]

Thanks for then updates. Good luck in California. The 9th circuit decisions will be very influential in determining national level policy.

[Bone]

Continuing the saga of Silvester v. Harris (#1 from the OP), yesterday US District Court Judge Anthony Ishii awarded the Calguns Foundation (plaintiffs) attorney’s fees and court costs. From the order (pdf):

ORDER
Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiffs‟ motion for attorneys‟ fees is GRANTED in the amount of $192,073.00; and
2. Plaintiffs‟ motion for costs is GRANTED in the amount of $2,006.45 ($1,434.16 +
   $572.29).

It’s too bad this won’t come from Harris herself, but rather the people of California. It’s a small amount, but it does help fund other efforts. I’m not sure how the award of fees works when rulings are appealed, is that considered a separate action and separate fee set that would be awarded?

[Magiver]

@Fear_Itself

How many locations are there in Texas that process voter ID’s, versus how many locations that process concealed carry permits? That was my point.

Any driver’s license bureau for the ID.

[Fear_Itself]

@Magiver

Any driver’s license bureau for the ID.

Is that more, or less, than the number of places you can get a concealed carry permit?

[Bone]

Regarding Case #2, Pena v. Lindley - The decision at the district level was handed down yesterday. The challenge to the roster was defeated. The decision has already been appealed to the 9th Circuit.

The court engaged in a two step analysis, first is the 2nd amendment implicated, and if it is, what level of scrutiny should be applied. The court concluded that imposing a ban on 100% of all newly manufactured handguns does not burden the 2nd amendment because different handguns remain available for purchase. As a result, they did not engage in a scrutiny analysis.

In addition, the court also found it acceptable that police are exempted from this requirement.

I find the court’s reasoning pretty weak and of course hope for reversal on appeal. To say that the government can ban guns because some other guns are not banned is absurd. It’s like saying the government can ban newspapers as long as other newspapers are available.

If I had to bet I would have predicted this loss and a victory at the 9th or at SCOTUS.

[Bone]

@Bone

Regarding #5 above - the full circuit votes on whether to grant en banc review of Peruta. If they grant, then the case is reheard in front of a 10 judge panel and the chief justice. Before December 1st, the chief justice was Alex Kozinski. He has been a supporter of 2nd amendment rights in the past and a Reagan appointee. However, as of Dec 1, the chief justice is Sidney R. Thomas, a Clinton appointee. He happens to be the dissenter in the original Peruta 2-1 decision so it’s no surprise his take on this.

There is suspicion that detractors of the Peruta decision among the circuit judges were waiting to call for en banc until Thomas became chief. A question that I don’t know is if a member of the original panel can call for en banc sua sponte. Anyone know that? I couldn’t determine it based on theGeneral Orders for the 9th Circuit. I was also surprised that Kozinski is no longer chief judge. I assumed it worked like SCOTUS and chief was chief until they stepped down. Anyone know why he’s no longer chief or what the process for selecting a new one is?

As predicted, the 9th circuit in Case #5 has granted en banc review of Perutaand Richardsin separate orders. Not sure how the full court will rule but I’m not optimistic. I think if ruled on the merits it’s a no brainer but you never know. Hopefully this gets adjudicated in time to reach SCOTUS before the court makeup changes.

[Bone]

@Bone

And an honorable mention to Tracy Rifle & Pistol v. Attorney General Harris. This case was just filed and is a 1st amendment challenge to CA Civ Code 26820 which bans the display of handguns advertising the sale or transfer thereof which is visible from outside a store. In other words, gun stores can’t show images of handguns. Rifles are perfectly legal, but a handgun is a no no. Here is a Volokh articleon the case, for which Volokh is one of the attorneys. I think this one is a slam dunk but you never know. It seems rediculous that images of handguns are banned at all based on 1st ammendment grounds, but on top of that rifles are perfectly fine which makes no sense.

While today we have an order denying a motion for preliminary injunction of enforcement of the CA law that prohibits the display of handgun advertising, the court did say the following:

Therefore, Plaintiffs raise serious questions going to the merits of their First Amendment challenge to
section 26820. On balance – based on the arguments and evidence currently before the Court – the Court also finds it is more likely than not that Plaintiffs will succeed on the merits of their First Amendment claim.

The government identifies one overriding rationale for the ban:

by restricting handgun advertisements that are visible from outside the store, section 26820 decreases the number of emotion-driven impulse purchases of handguns, thereby directly reducing handgun crime and violence. The Government makes two arguments in support of this position: 1) that the restriction is consistent with courts’ holding that the government may restrict advertising in order to dampen demand; and 2) common sense and public health research support that conclusion that limiting impulse buys reduces handgun crime and violence.

As to the first:

A State “may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading advertisments….” Sorrell, 131 S. Ct. at 2671. The “fear that people would make bad decisions if given truthful information” has been rejected as the basis for a commercial speech restriction, and a state may not pursue its policy preferences ‘by keeping the public in ignorance.’” Thompson, 535 U.S. at 374, 375 (citing Virginia Bd. of Pharmacy v. Virginia Citizens Cons. Counc., Inc. 425 U.S. 748, 770 (1976)). “[T]he power to prohibit or to regulate particular conduct does not necessarily include the power to prohibit or regulate speech about that conduct.” Greater New Orleans Broadcasting Ass’n, Inc. v. U.S. 527 U.S. 173, 174 (1999).

On balance, the weight of authority shows strong disfavor with restrictions on advertisements that are neither misleading nor related to the fair bargaining process, which is the case with the advertisements at issue here. Liquormart, 517 U.S. at 501. However, it is permissible in certain circumstances for the government to restrict advertising in order to dampen demand for legal products. The Court acknowledges that this is a distinct case, in that the product at issue is handguns. However, Plaintiffs identify no legal authority that in this context, advertising designed to dampen demand is per se violative of the First Amendment. Therefore at this juncture the Court does not make that finding.

As to the second: There is more reasoning in the court filing, but essentially this argument by the government is laughable as there is a 10 day waiting period in CA, the restriction doesn’t apply to longguns, nor does it apply to online, broadcast, or print media.

So no win on preliminary injunction, but as I suspected, I think this will be a slam dunk win on 1st amendment grounds.

[Bone]

@Bone

As predicted, the 9th circuit in Case #5 has granted en banc review of Perutaand Richardsin separate orders. Not sure how the full court will rule but I’m not optimistic. I think if ruled on the merits it’s a no brainer but you never know. Hopefully this gets adjudicated in time to reach SCOTUS before the court makeup changes.

Today the 9th circuit issued its en banc decision on case #5, Peruta. Unfortunately it was a loss for plaintiffs as expected. And of course, the above post back in March of last year I was hoping SCOTUS would be unchanged which is also not the case. I expect this will not be appealed. The opinion isn’t posted at the 9th circuit website yet but should be in a day or so. It was heard by 11 justices, the vote was apparently 7-4 (but I can’t tell very easily). Here is from the summary* of the opinion:

Theright of a member of the general public to carry a concealed
firearm in public is not, and never has been, protected by the
Second Amendment. Therefore, because the Second
Amendment does not protect in any degree the right to carry
concealed firearms in public, **any prohibition or restriction a
state may choose to impose on concealed carry — including
a requirement of “good cause,” however defined — is
necessarily allowed by the Amendment. **The en banc court
stated that there may or may not be a Second Amendment
right for a member of the general public to carry a firearm
openly in public, but the Supreme Court has not answered
that question.

Essentially - they stated that since concealed carry is not covered at all under the 2nd amendment, any restriction imposed is permissible. Concurring opinions stated that even if concealed carry were covered, then the restrictions would still be permissible. There were three separate dissents.

Open carry in CA is completely prohibited as well.

Expected, yet very disappointing.

*the summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader

[Flyer]

I just saw an article about that.

I wouldn’t mind so much if they would have the decency to allow open carry. Their own logic in the decision points toward that, but they still won’t do it.

[octopus]

@Flyer

I just saw an article about that.

I wouldn’t mind so much if they would have the decency to allow open carry. Their own logic in the decision points toward that, but they still won’t do it.

How can they legally ban both? Any other explicitly protected constitutional rights that California bans?