It's persuasive, at best. Or should I say SHOULD be persuasive, but I'm sure those on the bench who see the world as how they want it to be rather than how it is will figure out some convoluted reasoning to essentially render Peruta "binding precedent" within the (not Ninth) Circuit. It was a VERY specific question ruled on by CA9. "Is there a right to concealed carry?" That also blows the door open for appellees (assuming the plaintiffs lost in district court, which is a safe assumption) to argue that the Second Amendment protects lawful carriage of firearms outside the home. It doesn't proscribe the manner, open or concealed, so hit back with "Well, if concealed carry is not protected, then open carry must be protected." What are the judges going to say? Certainly not "Peruta decided this" because, well, the en banc court declined to address the issue entirely. They'd have to start from the bottom up, because the analysis by CA9 is, well, total garbage and does not even touch on the overall right itself.
The opinion we got in Moore is general, thorough, practically impossible to pick apart because of Posner's historical analysis. The CA9 en banc court simply cherrypicked cases. For the life of me, I cannot understand why the question presented was not "Does the Second Amendment protect....?" rather than "Is concealed carry a constitutional right?" (to paraphrase yet again). Then again, the court would've found a way to say "No, it does not." So I guess we got lucky, in a way.
Last year, after its defeat before the 9th in Peruta v. San Diego, the NRA filed another lawsuit which claimed that they have a right to carry "in some manner" and since California bans Open Carry they are entitled to concealed carry permits.
The district court judge properly held that the plaintiffs were engaging in a "logical fallacy" and dismissed that claim and dismissed the Los Angeles County Sheriff who had denied the plaintiffs concealed carry permits, with prejudice.
The judge said that the plaintiffs were entitled to challenge California's bans on Open Carry because the Peruta en banc court did not decide the Open Carry question. The judge had previously given the NRA until May 31st to amend its Complaint.
The NRA did not amend its Complaint.
Nowhere in the Complaint did any of the plaintiffs say that they would openly carry firearms anywhere, let alone where it is prohibited by law, so they don't have standing to challenge California's Open Carry bans. And instead of challenging the population and residency restrictions on the issuance of licenses to openly carry loaded handguns in public, the NRA asked in its Prayer for Relief that the subsection of the statute which provides for handgun Open Carry licenses be struck down.
The NRA really, really hates Open Carry.
On the 4th of July, I filed a motion for my appeal to be heard before the same panel of judges who will be hearing the only other Open Carry appeal pending before it. On June 27th, the Court issued an Order lifting the stay in that appeal and which said that it would be placed on the next available calendar.
Concealed carry is of no use to me because I don't carry a purse or wear a dress, and I'm not into secret advantage and unmanly assassination.
"Should the Open Carry movement become successful it will result in the greatest dissolution of government power since the collapse of the Soviet Union." - Charles Nichols
"If a monkey looks into a book, a sage cannot look out." - Georg Christoph Lichtenberg
"La plus belle des ruses du diable est de vous persuader qu'il n'existe pas." - Charles Baudelaire
"God doesn't want me and the devil isn't finished with me." - Raymond Reddington
"When you lift the last veil, you might discover that your bride is an ignorant, illiterate child living in a world of fear and superstition." - Charles Nichols.*
* I posted this on my Facebook page on May 20, 2011. Unable to find its origin, I claim to be its creator.