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California "May Issue" Ruled Unconstitutional


Chiburbian

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San Diego will petition for en banc, and the odds of en banc being granted are rather high as are the odds of this ruling being overturned on en banc. It would behoove San Diego to not push this any further because this, along with Moore, creates a circuit split like none other especially with Judge O'Scannlain's ripping of the Second, Third, and Fourth Circuits' analysis and conclusions in Kachalsky, Drake, and Woollard. For all intents, he stated that they applied rational basis and called it intermediate scrutiny. The silver lining is that Judge Kozinski's term as Chief Judge isn't up til October so he automatically sits on en banc panels. If it is overturned, he will write a scathing dissent which will definitely attract the attention of the Justices.

 

I was told on another forum that the 9th has never entertained en banc, and probably wouldn't here. Opinions?

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San Diego will petition for en banc, and the odds of en banc being granted are rather high as are the odds of this ruling being overturned on en banc. It would behoove San Diego to not push this any further because this, along with Moore, creates a circuit split like none other especially with Judge O'Scannlain's ripping of the Second, Third, and Fourth Circuits' analysis and conclusions in Kachalsky, Drake, and Woollard. For all intents, he stated that they applied rational basis and called it intermediate scrutiny. The silver lining is that Judge Kozinski's term as Chief Judge isn't up til October so he automatically sits on en banc panels. If it is overturned, he will write a scathing dissent which will definitely attract the attention of the Justices.

 

I was told on another forum that the 9th has never entertained en banc, and probably wouldn't here. Opinions?

This is what I found. It looks like if they do it would be broadcast on the internet.

http://firstamendmentcoalition.org/2013/12/ninth-circuit-federal-appeals-court-to-live-stream-en-banc-hearings/

 

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Anyone who thinks this is over...well it isn't. Not even close. The ruling could be overturned on en banc which would lead to a cert petition. En banc could be denied, cert petition. Upheld on en banc, cert petition. Any which way you look at it, this is going to SCOTUS. California is too arrogant to know when enough is enough. They'll take it to SCOTUS, Plaintiffs obviously will take it to SCOTUS. All the while, the issuance of the mandate will be stayed which means that the current framework will stay in place until the issue is final and non-appealable. Read the dissent. Thomas is known for being one of the more reasonable, level-headed circuit judges. Then there's Judge Reinhardt who is a Carter appointee (18 of the 28 Circuit Judges were appointed by Carter, Clinton, or Obama and if you factor in Senior Judges, that number jumps to 27) and arguably the most liberal judge in the entire country. He is also one of the most overturned judged in history. A few years ago, two of his rulings were smacked down by SCOTUS in a single day.

 

The good news (and en banc will be granted, it's a foregone conclusion) is that the Ninth Circuit is once again gunning for that coveted "most overturned" status as it was overtaken by the Sixth Circuit last year by a significant margin. "Only" 78.1% of the cases originating in the Ninth Circuit were overturned between 2004 and 2013 as opposed to 81.5% of cases originating in the Sixth. Back in 2011, CA9 was overturned five times in less than 5 days and during the 2009 term, 94% of its rulings were overturned.

 

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The only viable one is Drake out of CA3. Cert was denied in Kachalsky (CA2) and Woollard (CA4) so those are DOA but they may very well hold onto Drake pending the outcome of Peruta. Whether en banc is denied or granted and which party loses at en banc if it is even sought (the San Diego County Sheriff's Dept is currently looking at this, deciding what to do...according to the website heh). This is gonna spawn more lawsuits either way since all of those Sheriffs like Lee Baca who won't issue permits to those who don't donate significant sums of money to their campaigns will keep their may issue system in place until they're told not to by a court or the state rewrites the law so that one can only carry a revolver with a 6" barrel or something insane like that.

 

Sent from my SCH-I545 using Tapatalk 2

 

 

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Don't worry, California lawmakers will make it safe for everyone and ban the carry of all but single shot pistols; who needs more than one shot to defend themselves anyways

 

This is the beginning of the beginning of the end for the anti gunners; but I am sure it will continue to be a drawn out, difficult fight for many years to come in places like California.

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This is a very very well written opinion. I don't see CA9 reversing itself with an en banc review of Peruta.

 

O'Scannlain really laid the lumber on King and Davis. I think this puts an end to deciding a case using rational basis and then lying about it in the opinion and saying that intermediate scrutiny was used.

 

Someone on another forum wrote:

 

It is amazing to me that Judge O'Scannlain reads Heller "the need for the right is “most acute” in the home" and concludes

 

Quote:

thus implying that the right exists outside the home, though the need is not always as “acute.”

 

 

Judges Davis, King, Myerscough and Stiehl read the same opinion and say, in effect "gee we think maybe this means the right doesn't exist outside of the home at all, we don't know and can't figure it out so we're going to force SCOTUS to rule on a gun case again...

 

 

.

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Good job Illinois politicians! California Liberals had their way until you set the stage for their down fall.

 

My thoughts exactly.

 

For all the extra suffering Californian 2A supporters have gone through more than us over the years, may they not go through the drawn-out headache we're going through to finally get permits.

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If you read Judge Legg's opinion in Woollard he built a very strong argument that was going to be very hard to refute. It was almost as if he was writing it specifically for the CA4. As solid as his argument was, King and Davis ignored it, as they ignored Heller and the need to apply intermediate scrutiny to deciding an enumerated right.

 

I get the feeling that O'Scannlain is doing the same thing - he's not writing this for the sake of San Diego County or the lower courts. This opinion was crafted for consumption by the Supreme Court Justices.

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The irony here is that, had the state not banned unloaded open carry in 2012, Peruta would have lost this case BUT all of the weenies cried foul, "Oh my GOD! Someone is carrying a gun!" so the state banned it. In a challenge to California's may issue, the judge said "unloaded open carry? OK that's good enough" so the dolts went and banned it, Jerry Brown signed the bill into law, and now this. Oops! What's that thing...the law of...unintended...something about consequences? Well it's gonna hit California two-fold (and Hawaii soon too) because the opinion in Richards is set to be published soon and I don't expect it to be any different than the Peruta opinion. For all we know, Judge Callahan will deliver the opinion, or O'Scannlain will make it two for two. Who knows.

 

Callahan sat on the Nordyke panel with O'Scannlain (who also helped set up McDonald on the path to SCOTUS) and dissented in the denial of rehearing en banc in Ileto v. Glock where CA9 allowed a product liability lawsuit against Glock to proceed and this one is bat-crazy since the plaintiffs alleged that Glock knowingly created a surplus of firearms thus they end up in hands of criminals and mentally ill and that Glock did this deliberately to inflate profits. The lawsuit stemmed from a shooting at a Jewish community center and the same mentally ill man fleeing and later shooting and killing a postal worker. Plaintiff lost, SCOTUS didn't want anything to do with the case. Seems like there are very few reasonable, logical judges on the Ninth Circuit. Feel good, "do what's right even if it's wrong" garbage.

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San Diego will petition for en banc, and the odds of en banc being granted are rather high as are the odds of this ruling being overturned on en banc. It would behoove San Diego to not push this any further because this, along with Moore, creates a circuit split like none other especially with Judge O'Scannlain's ripping of the Second, Third, and Fourth Circuits' analysis and conclusions in Kachalsky, Drake, and Woollard. For all intents, he stated that they applied rational basis and called it intermediate scrutiny. The silver lining is that Judge Kozinski's term as Chief Judge isn't up til October so he automatically sits on en banc panels. If it is overturned, he will write a scathing dissent which will definitely attract the attention of the Justices.

 

Thanks Skinny. This answers a question I was about to ask. "Will they take the ruling or appeal for en banc?" Hope you are wrong and it stands.... But then again, I hope you are right...and we go all the way to SCOTUS and win there.

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