In a time of universal deceit, the truth is a revolutionary act” – George Orwell
®™©
Right to Bear…
By de Andréa, Opinion Editorialist
for ‘THE BOTTOM LINE’:
for ‘THE BOTTOM LINE’:
Published April 03, 2015
California the most
un-American state with maybe the exception of New York, violating more
Constitutional laws than any state in the Union may actually be forced to join 39
other states in Shall Issue, in a state wide concealed carry permit. There are only 4 states in the United States
that actually recognize the unrestricted Bill of Rights as belonging to the
PEOPLE of the many states, and require no permit at all from the Gestapo regime
to exercise one’s God given rights.
The Second Amendment
is the only Constitutional law that includes the words “SHALL NOT BE INFRINGED” and yet next to the Tenth Amendment it is the most infringed and flat
out violated Constitutional law by all governments in the country.
According to the
Constitution and the Declaration one does not have to get permission from the
Dictatorship to exercise ones God given unalienable rights. You are brought into this world with all the
permits one needs from the ONE who granted the rights. And trust me, that isn’t OBAMA!
One of the biggest
Second Amendment court victories ever, was recently won in California, and the
National Rifle Association was there every step of the way. The decision of the
9th U.S. Circuit Court of Appeals in Peruta v. County of San Diego upholds
the right to bear arms for the 38 million law-abiding citizens of California.
In fact, the
victory was so huge that extremely anti-American California Attorney General
Kamala Harris and some Nazi gun-ban groups have mounted an enormous effort to
get the Peruta case
overturned. So far, they have succeeded in blocking—at least temporarily—the
court’s ruling that carry rights must be respected.
The Peruta holding says that typical,
law-abiding Californians should be able to obtain permits to carry handguns for
lawful protection—as people in the vast majority of other states already can
obtain permits. Because the 9th Circuit also includes Hawaii, the right to
carry would be protected there, as well. Right to carry has been long
established in the remaining states in the 9th Circuit: Alaska, Washington,
Oregon, Idaho, Montana, Nevada and Arizona.
At this point you can watch a brief video
explaining this Issue and court litigation or, if this is of great importance to you, you can
read the detailed report below published by the NRA
“As I’ll explain,
the final outcome of the Peruta litigation
is up in the air as this article goes to press. But there’s no doubt that the
9th Circuit’s Feb. 14 decision in favor of the right to carry was a major
victory that gun prohibitionists are working frantically to overturn.
Let’s take a look
at the ingredients that led to the success so far.
Steps to Victory a good first step in winning litigation is to identify plaintiffs who
have compelling stories to tell. In the Peruta case,
one of the plaintiffs is Mark Cleary, a registered nurse at a California
lockdown facility for persons who have been found to be legally insane. While
the vast majority of mentally ill people are not violent, a small but dangerous
subset are violent. Cleary has received several death threats, which have been
documented by the police.
Another plaintiff
is 26-year-old Michelle Laxson, who runs her own hairdressing business. She
sometimes has to carry large sums of cash through dangerous neighborhoods at
night. Cleary and Laxson were denied carry permits by the San Diego Sheriff.
Plaintiffs such as these help judges understand the real-world problems caused
by excessive gun control.
It is also
important to include a variety of plaintiffs, in case unexpected procedural
problems arise. Federal courts these days are very strict on the doctrine of
“standing,” which significantly limits who is allowed to bring claims in a
federal court. Many federal plaintiffs who had powerful legal claims on the
merits never got a decision on the merits because a court determined that the
plaintiffs lacked standing to sue.
To help guard
against this possibility, another plaintiff in the Peruta case was the California Rifle
and Pistol Association Foundation. The Foundation has legal standing to
represent the interests of its members, and this provided a strong back-up in
case standing problems developed with any of the individual plaintiffs.
Good plaintiffs
also need to be represented by strong attorneys who have a proven record of
success in gun rights litigation. The attorneys in the case were Michel &
Associates, P.C., based in Long Beach, Calif. Attorney Chuck Michel and his
team have an enormous amount of experience in state and federal courts in
California, and have won many cases against repressive anti-gun laws. Michel
literally wrote the book on the subject as he is the author of “California Gun
Laws: A Guide to State and Federal Firearm Regulations.”
Civil rights
litigation often takes a long time, and the Peruta case,
which began in 2009, was no exception. Money doesn’t grow on trees—even in
California—and Michel can’t expect his staff to work for free. And none of the
plaintiffs had enough money to pay for thousands of hours of attorney fees.
So the NRA stepped
in, providing the necessary financial support for the case. Like other attorneys
who have worked with NRA over the years, Michel & Associates sharply
discounted their standard billing rates because they recognize that the NRA,
too, has limited resources.
There was one more
ingredient also essential for success—bringing a focused legal challenge on the
most consequential part of the law, and not trying to resolve every injustice
in one case. “What part of ‘shall not be infringed’ don’t you understand?” may
sound great on a bumper sticker, but it’s a guaranteed loser in court.
The vast majority
of judges are reluctant to overturn a state statute. It is much easier to
convince a judge to adopt a particular interpretation of a statute than to get
the judge to throw the statute out entirely. So the Peruta lawyers took the
approach that had the best chance of winning.
The Peruta Argument
California’s concealed carry licensing law has three basic requirements:
1. Training
(similar to most other states);
2. The applicant must have “good moral character;” and
3. The applicant must have “good cause.”
2. The applicant must have “good moral character;” and
3. The applicant must have “good cause.”
On paper, this
might not sound unreasonable. The possibility that any judge in 2014 was going
to find these requirements to be “unconstitutional” was unlikely, to say the
least. In some California counties, such as Sacramento, sheriffs were applying
the state statute in a reasonable manner. If an applicant had appropriate
safety training, passed a fingerprint-based background check, and had no other
problems, then the applicant would be issued a carry permit. The “good cause”
requirement was satisfied by the applicant’s wish to carry a concealed handgun
for lawful self-defense.
But in San Diego
County—and many other California counties—the state statute was not applied in
a reasonable way. “Good cause” was interpreted to mean “compelling need.” The
only people who could show “compelling need” were victims of specific known
threats from particular violent criminals. And even then, a permit might not be
issued.
The Peruta lawyers did not
challenge the statutory “good cause” requirement. Instead, they simply argued
that “good cause” must be interpreted Sacramento-style rather than San
Diego-style.
This was the
winning argument when the 9th Circuit decided Peruta
v. County of San Diego. By a 2-1 vote, the panel of judges ruled that
the San Diego Sheriff must issue permits based on the principle that the lawful
exercise of the Second Amendment right to bear arms is a “good cause.”
The opinion was
written by Judge Diarmuid F. O’Scannlain (a 1986 appointee of President Ronald
Reagan), and joined by Judge Consuelo Maria Callahan (a 2003 appointee of
President George W. Bush). Voting against carry rights was Judge Sidney R.
Thomas (a 1995 appointee of President Bill Clinton). Thomas was a finalist for
the U.S. Supreme Court vacancy that President Barack Obama eventually gave to
Elena Kagan.
The 2-1 vote thus
illustrates another essential requirement for success in the courts—success on
election day. If you want federal judges who believe that the Second Amendment
deserves just as much protection as any other part of the Constitution, you
need to elect presidents who will appoint such judges, and senators who will
confirm them.
The NRA grassroots
volunteers who helped elect Ronald Reagan, George W. Bush and pro-rights
senators over the years deserve much credit for the 2014 win in Peruta.
The Ruling Explained The Peruta decision
holds that a government may specify what mode of carrying to allow (open or
concealed), but a government may not make it impossible for typical citizens to
exercise their Second Amendment right to bear arms.
The Peruta decision
employs the two-step test, which has been adopted by many federal courts:
1. Does the conduct
at issue involve Second Amendment rights?
2. If so, then the court must apply “heightened scrutiny” (that is, the court must decide if government has carried the burden of proving the constitutionality of the restriction on the right).
2. If so, then the court must apply “heightened scrutiny” (that is, the court must decide if government has carried the burden of proving the constitutionality of the restriction on the right).
However, if the law
destroys the right, rather than merely restricts it, then the law is
categorically unconstitutional, with no need for detailed analysis under
heightened scrutiny. The details of the two parts of the test vary among the
federal circuit courts, and not all circuits recognize the final item in step
2—that a law can be categorically unconstitutional.
The Peruta Court expressly
stated that its ruling only applies to law-abiding citizens. The plaintiffs
agreed—they did not challenge the statutory requirement a permit applicant must
be of “good moral character.”
The Peruta decision examined
the text of the Second Amendment, the Supreme Court decisions inHeller and McDonald, and the legal history
of the right to bear arms. The 9th Circuit paid particular attention to the
historical cases and legal commentators that were favorably cited by Heller andMcDonald. The analysis
straightforwardly showed that the right to carry a gun in public places for
lawful self-defense is part of the Second Amendment right. So the plaintiffs
passed step 1 of the two-part test.
As for step 2, the
“good cause” requirement as administered by San Diego is a near-total
destruction of the right to bear arms. As the 9th Circuit wrote, the Supreme
Court “teaches that a near-total prohibition on keeping arms (Heller) is hardly better than a
near-total prohibition on bearing them (this case), and vice versa. Both go too
far.”
Hence, San Diego’s
policy is unconstitutional.
As Heller had observed, there
are many 19th century state cases that say that a state may ban concealed carry
so long as open carry is still allowed. California might have been able to do
the same. But it is unconstitutional to prohibit carrying in every mode: “The
Second Amendment does require that the states permit some form of carry for
self-defense outside the home.”
The 9th Circuit
decision in Peruta is similar to the
7th Circuit’s 2012 decision against Illinois, which had no system to allow
people to bear arms in public places. The 7th Circuit’s decision in the
parallel cases of Moore v. Madigan and Shepard v. Madigan held
that a complete ban on bearing arms was categorically unconstitutional. (The Shepard case was
brought by NRA.)
As a result, the
Illinois legislature in 2013 enacted a “Shall Issue” Right-to-Carry statute.
The new statute is not perfect, but it is a huge improvement for Second
Amendment rights in the heartland.
In the Northeast,
judicial results have been just the opposite. Challenges to hyper-restrictive
carry licensing in New York, New Jersey and Maryland have resulted in decisions
by the 2nd, 3rd and 4th Circuit Courts of Appeals, all upholding the restrictive
laws.
The Peruta opinion devoted
several pages to explaining why these northeastern courts were legally
incorrect. Among other reasons, the northeastern cases cite and rely on prior
cases that themselves were incorrect, according to the Supreme Court. For
example, the 1876 Arkansas case Fife
v. Statehad said that the right to keep and bear arms is only about the
militia. In 2008, the U.S. Supreme Court in District
of Columbia v. Heller ruled that the Second Amendment is not
militia-only. The Supreme Court reiterated this point in McDonald v. Chicago in
2010.
Yet in 2012, the
2nd Circuit upheld New York’s extremely restrictive gun licensing, in Kachalsky v. County of Westchester.
The 2nd Circuit cited the 1876 Fife case
as a supportive precedent.
As the Peruta decision makes
clear, courts that refuse to recognize a meaningful right to bear arms are
really just refusing to follow the Supreme Court’s teachings in Heller and McDonald.
Moving Forward What’s next?
San Diego Sheriff William Gore said that he would start issuing carry permits
in compliance with the Peruta decision.
But California Attorney General Harris has chosen to put up an all-out fight.
Because the case
involved the interpretation of a California state statute, the attorney general
had a legal right to participate in the case from the beginning. Harris did not
do so, but now has filed a motion to intervene in the case, and thus become a
party.
Along with the
motion to intervene, the attorney general also has asked that the 9th Circuit
rehear the case en banc.
Cases that come
before a federal Circuit Court of Appeals are decided by a panel consisting of
three judges from that circuit. In an en
banc rehearing, the entire set of judges from that circuit hears
the case. That means that Peruta could
be heard before a tribunal consisting of all 27 judges on the 9th Circuit.
Because the 9th Circuit is so big, however, the court usually picks just 11
judges for an en banc rehearing.
Circuit courts have
complete discretion about whether to hear a case en
banc. All the judges of the circuit vote whether to grant an en banc rehearing. A simple
majority of judges on the circuit is enough to grant an en banc. En banc rehearings are rare
and granted only in cases of exceptional importance.
Along with the
attorney general, two gun prohibition groups filed briefs asking the 9th
Circuit for an en banc rehearing—the
Brady Center to Prevent Gun Violence, and the Law Center to Prevent Gun
Violence (an organization of anti-gun lawyers). Only one sheriff (Robert Doyle
of Marin County) joined the anti-gun briefs. Also, two law-enforcement groups
joined the briefs: the California Peace Officers Association (a self-described
“progressive” organization with about 3,000 members) and the California Police Chiefs
Association (that is, political appointees of anti-gun mayors).
The heavyweight
corporate law firms of Covington & Burling and Hogan Lovells helped write
the anti-gun briefs. Predictably, the briefs were filled with hysterical and
illogical arguments. They brought up the Tucson shooting of Congresswoman
Gabrielle Giffords and the Aurora, Colo., theater shooting, even though neither
perpetrator had a carry permit.
A bogus report from
the Violence Policy Center also was cited, even though that report was debunked
two years ago for being riddled with plainly false data. (For the debunking,
see Clayton Cramer’s research paper “Violence Policy Center’s Concealed Carry Killers:
Less than it Appears,” available at http://ssrn.com/abstract=2095754.)
The 9th Circuit has
not, as of this writing, made a decision for en
banc rehearing, but the three-judge panel did issue a stay of its
mandate. In other words, the binding legal effect of the Peruta decision was put on hold
while the 9th Circuit decides what it wants to do next.
If an en banc hearing is granted,
then the loser could appeal the case to the Supreme Court. The Supreme Court
would have complete discretion on whether to take the case, and it’s impossible
to predict what the high court would do.
Undoubtedly,
Attorney General Harris and her gun-prohibition allies are hoping that since a
solid majority of judges on the 9th Circuit were appointed by anti-gun
presidents, the anti-rights side can win the en
banc, and then they can cross their fingers that the Supreme Court does
not get involved.
The victory in Peruta—and the risk of a
loss en banc—both teach the
same lesson for supporters of constitutional rights: Get involved in the 2014
elections and help elect pro-rights senators who will reject President Obama’s
efforts to stack the federal courts with opponents of the Second Amendment.”
Thanks for listening – de Andréa
If you agree please pass on this article to everyone on
your email list. It may be the only
chance for them to hear the truth.
Copyright © 2014 by Bottom
Line Publishing, All Rights Reserved - Permission to reprint in whole or
in part is gladly granted, provided full credit is given.
Disclaimer - The writer of
this blog is not responsible for the language used in links to referenced
articles as source materials. Thank you – de Andréa
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