Peruta v. San Diego: How did we get here?
Today’s decision by the Ninth Circuit Court of Appeals in the Peruta v. San Diego case may become a watershed moment for concealed carry advocates in the Golden State.
Progressive politicians here are now scrambling to select the correct course of action that will allow them to preserve what has been one of the most anti-gun bureaucracies in the country. But the truth is, the predicament they have found themselves in is entirely of their own making.
God bless our idiot state legislators in California who, in their infinite wisdom, decided to outlaw unloaded open-carry of firearms because a few open-carry advocates basically baited them into doing so. Yes, that is where the Peruta case starts.
A few years ago, some second amendment supporters started appearing in public, open-carrying unloaded firearms. Why unloaded? Because loaded open-carry of firearms had been outlawed by Ronald Reagan back in the 1960’s after some radical Black Panthers entered the state capitol with loaded rifles.
I’m fairly certain that this small group of open-carry supporters didn’t have today’s decision in mind when they started showing up at rallies with unloaded AR-15’s slung over their shoulders.
But after seeing them on the news our state legislators took the bait. They are progressives. They just couldn’t help themselves. The thought of ANY civilian appearing in public with a firearm, loaded or unloaded, open-carried or concealed, was unfathomable.
So those legislators did what good progressives do: they closed the “unloaded open-carry” loophole. Thus, they created the environment for the Peruta case to go forward. Had they just left the carry laws alone, they could have gone on denying concealed-carry permits indefinitely.
The status quo, which was a state with “may issue” concealed carry (which in practice was “no issue”), no loaded open-carry, no “stand your ground”, and no Castle Doctrine, wasn’t good enough. They needed more control over us.
So they overreached.
And this is not the first time. In 2009, this same California legislature outlawed online ammunition sales. But they wrote the law so poorly and made the restrictions so vague that a lower court declared the law unconstitutional and threw it out.
Remember, progressives are always the smartest guys in the room.
In 2010, Illinois, lawmakers were handed the defeat of long-standing firearm restrictions. They had (in their minds) created a gun-free utopia in that state. I know. I lived right on their border for most of my formative years.
But the combination of the Heller and McDonald decisions left them with few alternatives. Yes, they could have fought the details of the McDonald decision with the Seventh Circuit. But that could have jeopardized gun-control statutes in other states.
So Illinois elected officials sucked it up, took one for the team, and crafted a “shall issue” concealed carry statute. They did not shed their progressive ideals overnight. I’m confident that many state legislators held their noses as they voted to pass this legislation.
I doubt Governor Pat Quinn was popping champaign corks at the signing ceremony. But they did what had to be done: they stopped the bleeding. They will fight the pro-second amendment supporters another day.
In the case of Peruta, California legislators were demonstrably dumber than their progressive counterparts in Illinois.
Peruta did not strike down long-standing firearms restrictions. The unloaded open-carry ban had only been signed into law in October of 2011. Like moths to a flame, these legislators walked unprovoked into a buzz saw.
I’m sure there are some smart progressives in California. Tonight, they should be livid! Their lawmakers have jeopardized an easily-defendable anti-gun position for one that will now consume a ton of money and time just to put things back the way they were.
Before the Peruta decision, there were decisions in the 2nd, 3rd, and 4th Circuit Courts upholding “may issue” statutes, with only the 7th circuit in opposition. Now, the 9th Circuit’s ruling stands in conflict as well.
One of SCOTUS’ jobs is to resolve those conflicts. If by some miracle SCOTUS upholds the 9th Circuit’s decision, California legislators will not only have screwed themselves out of a comfortable anti-gun environment, they could ruin it for New York and New Jersey as well! Thanks guys!
Now, since the state of California has nearly unlimited resources and plenty of political will to fight this decision, there is a good chance they can get it overturned.
How will they do it? I have no idea. I’m not a lawyer.
So let’s just spitball here. San Diego will likely file a stay with the 9th Circuit pending an appeal. If they don’t, California AG Kamala Harris certainly will. Then you have some options:
- Eat it. Have the state legislature reinstate the old open-carry law. – It’s worth a shot. It would still likely be challenged because it’s only unloaded open-carry. But it would mean conceding defeat. I think progressives are to proud to go this route. They may not have a choice anyway.
- Request an en banc review by the full 9th circuit. – Peruta was decided by a Reagan appointee (O’Scannlain), a George W. Bush appointee (Callahan), and a Clinton appointee (Thomas). This was a fortunate draw for second-amendment supporters. But the full court is more liberal. The chances for a favorable outcome from the full court are better. But time is not on the side of this option ever fully playing out.
- Appeal to SCOTUS. – I’m with Eugene Volokh on this one. You have three Circuit Courts opposing two others. The Drake case out of the 3rd Circuit will likely be taken up by the SCOTUS. Nineteen states are asking for a review. When they do, there is a good chance they’ll also pick up Peruta and consolidate it. Then cross your fingers and pray that the Roberts court has one more good 5-4 decision left in it.
I haven’t used a holster since I left the midwest 17 years ago. Do they still make them?
Editor’s addendum: Updates to the ongoing Peruta battle can be found at CRPA.org , including this latest entry:
Latest: Update 7/1/2014: San Diego County filed a response with the 9th Circuit Court of appeals, saying basically they are fine with the intervention of the State AG, and argue the case is not moot, since they are still sitting on applications awaiting a final decision. You can read that filed response by clicking here.
CRPA is still awaiting word from our attorney regarding the final decision of the court.