Ninth Circuit strikes down CA "May Issue"!

[JayC]

It's a very interesting read...  I've not finish the dissenting opinion yet, but the opinion is very well thought out and appears to be supported by Heller and McDonald.

 

Basically they're saying that the state can regulate the manner in which you carry, but may not create laws or policies that would prohibit the average law abiding citizen from carrying...  nor can they regulate away which arm you carry.

 

So while the CA legislature is against open carry, but allows concealed carry that doesn't violate the 2nd amendment, but bu having a policy that limits concealed carry permits and completely prohibits open carry the 2nd amendment has been violated.  

 

And they go on to rip  2nd, 3rd, and 4th circuit opinions on the matter...  basically saying they relied on historical opinions that are clearly at odds with Heller...  

 

I don't totally agree with the opinion, but it's a big deal moving forward for carry rights in places such as LA and SF.

 

The opinion is over 100 pages, so I have not yet read through it completely. However, it is interesting to note that it was a 2 to 1 decision and the dissenting judge said that the holding the majority's decision is in conflict with Heller. Also of note is that the Ninth Circuit is now in agreement with the Seventh on this, but the Second, Third and Fourth Circuits have held the opposite.

Strange days, indeed.

 

[JayC]

Just curious, but if this opinion was applied to TN, would it make long gun carry legal?  One of the cases cited in the 9th opinion says that banning all handgun carry while still allowing long gun carry was unconstitutional, does that not imply the reverse is true as well?

[Dane]

So it seems that ca might just get back on the list of states I wouldn't mind visiting someday. I, too, am curious if it gives them a deadline to fix the laws like there was in IL? Sent from my iPad using Tapatalk HD

[midtennchip]

I have thought through this so many times (reading just about every halfway intelligent law review article and court opinion I could find).  When it comes right down to it, there is ALWAYS going to be some infringement upon the carrying of firearms.  It is simply a matter of degree.  What we are seeing is one court case after another trying to inch us closer and closer to the line that will ultimately be drawn. 

 

We accept (and the courts allow) so many infringements on the Bill of Rights, but as the legal saying goes, "bad facts make bad laws."  The "facts" argued about in a 2nd Amendment case are so different from those of a 4th Amendment case or a 6th Amendment case, so we get some discrepancies between the infringements that really don't make a lot of sense.

 

From what I am seeing, I think the SCOTUS will ultimately be faced with some of these cases and will rule that government can regulate the "manner" pretty heavily, as long as the regulations allow a reasonable (whatever that is) opportunity for law abiding citizens to carry guns of some sort.  In the 1800s, carrying a loaded rifle was extremely common and none of the courts had a problem with it.  On the other hand, concealed carry was viewed more harshly (my, how times have changed).  Fast forward a 100 years and we've done a 180 as a society.  Courts are responding accordingly because judges view things in light of the societal norms of the time.

 

My view is that courts will, over time, give and take (a little at a time) until the issue dies down again.  We'll have a relatively lengthy period where nothing happens in the courts on this issue, then we'll have another round because societal norms change again.  Just a cyclical issue, I think.

[JayC]

Chip,

 

Doesn't the supporting case law in this opinion basically say that being able to proscribe the type of firearm carried is a clear infringement as well?  They specifically talk about case law showing that just because X was allowed, doesn't mean you can completely ban Y...

 

What does that mean for long gun carry if this case stands in the 9th circuit?

[midtennchip]

Here's a short post from Volokh on what is likely to happen next (from a legal procedure perspective) in this case:

 

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/13/what-next-for-the-second-amendment-and-the-right-to-carry-guns/

[midtennchip]

Chip,

 

Doesn't the supporting case law in this opinion basically say that being able to proscribe the type of firearm carried is a clear infringement as well?  They specifically talk about case law showing that just because X was allowed, doesn't mean you can completely ban Y...

 

What does that mean for long gun carry if this case stands in the 9th circuit?

 

I don't think so.  First, each case that I read quoted were state cases, so they would only be binding in those states.  One of those cases was a Tennesssee Case (the Andrews case), but that case really isn't helpful to people trying to assert a 2nd Amendment right.  It actually stated, "when [a person] carries his [gun] abroad, goes among the people in public assemblages where others are to be affected by his conduct, then he brings himself within the pale of public regulation, and must submit to such restriction on the mode of using or carrying his [gun] as the people through their Legislature, shall see fit to impose for the general good."   It also held that a pistol was not an "arm" covered by the 2nd Amendment (because it was not an arm of a militiaman or solider at the time).

 

In any event, Heller, as well as several other cases, has changed the law regarding rifles (at least as compared to those old cases).

[JayC]

I guess my question was, if this opinion or something similar were to become case law here, could it impact long gun carry?  Using the logic they did from the supporting cases...

 

I understand we're not in the 9th circuit, just asking from a hypothetically stand point.

 

 

I don't think so.  First, each case that I read quoted were state cases, so they would only be binding in those states.  One of those cases was a Tennesssee Case (the Andrews case), but that case really isn't helpful to people trying to assert a 2nd Amendment right.  It actually stated, "when [a person] carries his [gun] abroad, goes among the people in public assemblages where others are to be affected by his conduct, then he brings himself within the pale of public regulation, and must submit to such restriction on the mode of using or carrying his [gun] as the people through their Legislature, shall see fit to impose for the general good."   It also held that a pistol was not an "arm" covered by the 2nd Amendment (because it was not an arm of a militiaman or solider at the time).

 

In any event, Heller, as well as several other cases, has changed the law regarding rifles (at least as compared to those old cases).

 

[midtennchip]

I guess my question was, if this opinion or something similar were to become case law here, could it impact long gun carry?  Using the logic they did from the supporting cases...
 
I understand we're not in the 9th circuit, just asking from a hypothetically stand point.

Well, the Ninth Circuit didn't base its decision on those cases. They only quoted them for historical background. The court based it's decision mainly on Heller, so my expectation is that any other case in our Circuit or from the SCOTUS will be based mostly on Heller and not these old cases.

Not saying it would never happen, but Heller made it pretty clear that some regulation is acceptable. It differs significantly from these older cases in a number of ways, so I would expect cases coming out in the future will be using Heller as the starting point