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California "May Issue" Ruled Unconstitutional


Chiburbian

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I just saw a posting on Facebook from Cal Guns that the 9CA has ruled California's May Issue law is unconstitutional and that Shall Issue will be implemented.

 

Edit: found a link

 

http://m.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/13/ninth-circuit-strikes-californias-restrictive-rule-against-licensed-carry-of-handguns/

 

California law has a process for applying for a permit to carry a handgun for protection in public, with requirements for safety training, a background check, and so on. These requirements were not challenged. The statute also requires that the applicant have “good cause,†which was interpreted by California to mean that the applicant is faced with current specific threats. The Ninth Circuit, in a 2-1 opinion written by Judge O’Scannlain, ruled that Peruta was entitled to Summary Judgement, because the “good cause†provision violates the Second Amendment.The Court ruled that the legislature may what mode of carrying to allow (open or concealed), but the legislature may not make it impossible for the vast majority of Californians to exercise their Second Amendment right to bear arms.
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Or Volokh Conspiracy

 

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/13/ninth-circuit-holds-second-amendment-secures-a-right-to-carry-a-gun/

 

tl;dr version is that may-issue “impermissibly infringe on the Second Amendment right to bear arms in lawful self-defense.”

 

So, the Ninth Circuit now agrees with the 7th, but disagrees with 2nd, 3rd, and 4th. The USSC is gonna have to put this to bed once and for all.

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That may depend on the wording in Hawaii's law, which I haven't seen.

 

What I do wonder is well this now require SCOTUS to take up the issue? Remember, several months ago Maryland's May Issue law was determined to be Constitutional.

I think they can take a pass on hearing the case like they did in the Maryland ( 2nd Circuit ) and leave the ruling stand. that is if California appeals to SCOTUS.
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That may depend on the wording in Hawaii's law, which I haven't seen.

 

What I do wonder is well this now require SCOTUS to take up the issue? Remember, several months ago Maryland's May Issue law was determined to be Constitutional.

Here is HI's law http://www.capitol.hawaii.gov/hrscurrent/Vol03_Ch0121-0200D/HRS0134/HRS_0134-0009.htm

 

Seems similar: "when an applicant shows reason to fear injury to the applicant's person or property"

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That may depend on the wording in Hawaii's law, which I haven't seen.

 

What I do wonder is well this now require SCOTUS to take up the issue? Remember, several months ago Maryland's May Issue law was determined to be Constitutional.

Here is HI's law http://www.capitol.h...S_0134-0009.htm

 

Seems similar: "when an applicant shows reason to fear injury to the applicant's person or property"

 

So me walking into the sheriff's office crying my eyes out saying, "I'm soooo scared!" isn't good enough?

 

This is great news! I think the next step is to see if they will hear this en banc, no?

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That may depend on the wording in Hawaii's law, which I haven't seen.

 

What I do wonder is well this now require SCOTUS to take up the issue? Remember, several months ago Maryland's May Issue law was determined to be Constitutional.

Here is HI's law http://www.capitol.hawaii.gov/hrscurrent/Vol03_Ch0121-0200D/HRS0134/HRS_0134-0009.htm

 

Seems similar: "when an applicant shows reason to fear injury to the applicant's person or property"

I agree with your assessment.
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In Peruta v. County of San Diego, the opinion was delivered by Judge O'Scannlain....

 

"These passages alone, though short of dispositive, strongly suggest that the

Second Amendment secures a right to carry a firearm in some fashion outside the

home. Reading those lines in light of the plain-meaning definition of “bear Arms”

elucidated above makes matters even clearer: the Second Amendment right “could

not rationally have been limited to the home.” Moore, 702 F.3d at 936."

 

Introduction...you know what's coming heh

Our conclusion that the right to bear arms includes the right to carry an

operable firearm outside the home for the lawful purpose of self-defense is perhaps

unsurprising—other circuits faced with this question have expressly held, or at the

very least have assumed, that this is so.

Put simply, a law that destroys

(rather than merely burdens) a right central to the Second Amendment must be

struck down.

 

We thus disagree with those courts—including the district court in this

case—that have taken the view that it is not necessary (and, thus, necessary not) to

decide whether carrying a gun in public for the lawful purpose of self-defense is a

constitutionally protected activity. See, e.g., Drake, 724 F.3d at 431; Woollard,

712 F.3d at 876; Kachalsky, 701 F.3d at 89; cf. Masciandaro, 638 F.3d at 475.

 

Understanding the scope of the right is not just necessary, it is key to our analysis.

For if self-defense outside the home is part of the core right to “bear arms” and the

California regulatory scheme prohibits the exercise of that right, no amount of

interest-balancing under a heightened form of means-ends scrutiny can justify San

Diego County’s policy.

 

Now, the court must delve into may issue after finding that carry outside the home is a constitutional right under the Second Amendment.

 

[T]he question is not

whether the California scheme (in light of San Diego County’s policy) allows some

people to bear arms outside the home in some places at some times; instead, the

question is whether it allows the typical responsible, law-abiding citizen to bear

arms in public for the lawful purpose of self-defense. The answer to the latter

question is a resounding “no.”

 

In California, the only way that the typical responsible, law-abiding citizen

can carry a weapon in public for the lawful purpose of self-defense is with a

concealed-carry permit. And, in San Diego County, that option has been taken off

the table.
The San Diego County policy specifies that concern for “one’s personal

safety alone” does not satisfy the “good cause” requirement for issuance of a

permit. Instead, an applicant must demonstrate that he suffers a unique risk of

harm: he must show “a set of circumstances that distinguish [him] from the

mainstream and cause[] him . . . to be placed in harm’s way.” Given this

requirement, the “typical” responsible, law-abiding citizen in San Diego County

cannot bear arms in public for self-defense; a typical citizen fearing for his

“personal safety”—by definition—cannot “distinguish [himself] from the

mainstream.”

 

(This one just tickles me to death :P )

Judge O'Scannlain begins ripping into CA2, CA3, and CA4 and doesn't stop

 

Our reading of the Second Amendment is akin to the

Seventh Circuit’s interpretation in Moore,
702 F.3d at 936–42,20 and at odds with

the approach of the Second, Third, and Fourth Circuits in Drake, 724 F.3d at

431–35, Woollard, 712 F.3d at 876, and Kachalsky, 701 F.3d at 89, 97–99.

 

By evading an in-depth analysis of history and tradition, the Second, Third,

and Fourth Circuits missed a crucial piece of the Second Amendment analysis.

They failed to comprehend that carrying weapons in public for the lawful purpose

of self defense is a central component of the right to bear arms. See Moore, 702

F.3d at 941
(criticizing the court in Kachalsky for “suggest[ing] that the Second

Amendment should have a much greater scope inside the home than outside” and

noting that the “interest in self-protection [and thus in the Second Amendment

right] is as great outside as inside the home”). And further, they failed to

comprehend that regulations on the right, although permissible to an extent, could

not go so far as to enjoin completely a responsible, law-abiding citizen’s right to

carry in public for self-defense.
Such regulations affecting a destruction of the

right to bear arms, just like regulations that affect a destruction of the right to keep

arms, cannot be sustained under any standard of scrutiny.

 

Criticizing the Circuits for their deference to state legislatures....

 

When analyzing whether a “substantial relationship” existed between the

challenged gun regulations and the goal of “public safety and crime prevention”

the Second Circuit concluded that it owed “substantial deference to the predictive

judgments of [the legislature]” regarding the degree of fit between the regulations

and the public interest they aimed to serve. Kachalsky, 701 F.3d at 97. Relying on

New York’s historical regulation of handguns from 1911 to the present, the court

deferred to the state legislature’s “belief” that regulation of handgun possession

would have “an appreciable impact on public safety and crime prevention.” Taking a

similar approach, the Third Circuit deferred to the legislature’s judgment that the

permitting regulations would serve its interest in ensuring public safety even

though “New Jersey [could not] present[] [the court] with much evidence to show

how or why its legislators arrived at this predictive judgment.” And the Fourth Circuit,

in a familiar vein, relied on the legislature’s judgment that “reduc[ing] the number of

handguns carried in public” would increase public safety and prevent crime,

despite conflicting evidence on the issue."

 

Here's where it gets really good

 

This is not an appropriate application of intermediate scrutiny
in at least two

respects. First, the analysis in the Second, Third, and Fourth Circuit decisions is

near-identical to the freestanding “interest-balancing inquiry” that Justice Breyer

proposed—and that the majority explicitly rejected—in Heller.
. . . All three courts

referenced, and ultimately relied upon, the state legislatures’ determinations

weighing the government’s interest in public safety against an individual’s

interest in his Second Amendment right to bear arms.

 

In Drake, Woollard, and Kachalsky, the government failed to show that the

gun regulations did not burden “substantially more” of the Second Amendment

right than was necessary to advance its aim of public safety
.
Indeed, as the district

court noted in Woollard, the government could not show that the challenged

regulation served its needs any better than a random rationing system, wherein gun

permits were limited to every tenth applicant.

 

. . . .

 

In light of the states’ failure to demonstrate sufficient narrow tailoring

in Drake, Woollard, and Kachalsky, the gun regulations at issue in those

cases should have been struck down even under intermediate scrutiny.

 

Goodbye!

 

The district court erred in denying the applicant’s motion for summary

judgment on the Second Amendment claim because San Diego County’s

“good cause” permitting requirement impermissibly infringes on the Second

Amendment right to bear arms in lawful self-defense.

REVERSED and REMANDED.

 

I'm not gonna analyze the dissent, I don't feel like it heh. Here's the opinion.

Peruta.Opinion.pdf

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