Wednesday, June 17, 2015

Good News About Peruta Case

From June 17, 2015 San Diego Union-Tribune:

— If the lawyers arguing both sides of a controversial concealed weapons case agreed on one thing Tuesday, it was that the constitutional right to bear arms extends outside the home. 

The panel of 11 judges with the U.S. 9th Circuit Court of Appeals appeared to agree on the same point, but to what degree was less than clear as arguments on the issue wrapped up in San Francisco.

Dave Hardy who was there has a pretty positive reaction.
It's hard to predict an outcome from an argument, and impossible with an en banc. Eleven judges, half of whom did not ask a question, and several who did grilled both sides equally.

The good guys faced a very big problem: the Ninth is 2/3 Demo appointees (party of the appointing president is the only way to judge their political feelings, and is rough enough). Odds of winning 6 out of 11 are not high.

The good guys thus posed the question narrowly. We aren't attacking the licensing system as such. We are attacking the fact that the two sheriffs here employ its broad "good cause" term to exclude anyone who doesn't have an exceptional need for self-defense, one not shared by the average person. Heller suggests, at the very least, you cannot demand that. (I think a licensing system of that type is unconstitutional, and they certainly do as well. But an advocate's job is to win THIS case, not to debate broad principles and lose on them).

This put the State in a very interesting position, which at least one judge probed. It's moving to intervene -- but why, this late in the game? It could have joined the suit years ago. It didn't even join before the panel decision came down. California didn't want to say "Heck, we thought the sheriffs would appeal it farther." Instead it tried to argue that the suit started out as a challenge to the sheriffs' exercise of discretion, in which the State had no particular interest, and developed into one where the State statute itself was under attack. But if the good guys say that isn't the case... And if the State isn't granted intervention, the appeal dies, since the sheriffs didn't ask for further appeal, and that leaves the panel decision standing.

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