Rehearing for Peruta and Richards

As suspected from the outset, the U.S. Court of Appeals for the Ninth Circuit has voted to rehear both Peruta v. San Diego and Richards v. Prieto, which had established that California’s handgun-licensing regime was unconstitutional as applied. The earlier victory in these lawsuits came as something of a surprise but was really just the result of a lucky draw for the original three-judge panel. The full court is heavily populated by Democratic appointees, so in all likelihood, the initial ruling will be reversed by this “rare” en banc review.

Civil-rights proponents on the court may have delayed this moment for as long as possible. Many thousands of licenses have been issued for the good cause of self-defense since the original decision, including within the jurisdiction of my former home, Orange County. The jurisprudence from Peruta has also been incorporated into other important right-to-arms cases, most notably Palmer v. D.C., which overturned the capital district’s no-issue law. Nevertheless, the end result was predictable.

When Peruta is reversed and transformed into a copy of the Kachalsky (USCA2), Woollard (USCA4), and Drake (USCA3) rulings, one question will remain. Will the U.S. Supreme Court take up the case and settle the matter constructively? Thus far, the high court has declined to review all of the right-to-carry cases that have come before it, so there is little reason to believe that the same dereliction won’t be visited here.

The boundary of the present inflection point may be growing near, and I can almost see the threads of historical probability coiling just beyond its veil. I’ve said before that we can’t return to that polite middle ground where the disparate factions pretend to ignore each other’s intentions. Outside the inflection point, linear progression becomes hyperbolic change. What that will do to the American nation remains unclear.

Right-to-Carry Litigation Update

While I was in the process of extracting myself from California, important progress was made on the litigation front for the the right to bear arms outside the home. After more than a year of waiting, three decision were rendered out of the U.S. Court of Appeals for the Ninth Circuit, affirming that governments in this circuit must recognize a right to carry functional handguns for self-defense under the Second Amendment to the U.S. Constitution. Specifically, the court ordered that self-defense must be accepted as meeting the various “good cause” requirements for the issuance of concealed-carry licenses in California and Hawaii.

Drake v. Jerejian	New Jersey	Lost on appeal at USCA3.
Kachalsky v. Cacace	New York	Lost on appeal at USCA2.
Moore v. Madigan	Illinois	Won on appeal at USCA7.
Palmer v. D.C.	D.C.	Won at U.S. District Court.
Peruta v. San Diego	California	Petitioned to U.S. Supreme Court.
Richards v. Prieto	California	Lost on rehearing at USCA9.
Woollard v. Gallagher	Maryland	Lost on appeal at USCA4.

Naturally, the legal battles aren’t over yet. The controlling decision in Peruta v. San Diego has been challenged by a number of actors (including the attorney general of California) and may yet face a rehearing by a larger panel on the overwhelmingly “liberal” circuit. Petitions to the U.S. Supreme Court are the next option for whichever side ultimately loses at the Ninth Circuit. Meanwhile, Drake v. Jerejian, out of the Third Circuit, is already at that step.

The question remains whether the Supreme Court will actually step in to settle the matter.

Retreat from California

The time has come for me to surrender my ancestral homeland and to retreat to friendlier political territory.

As someone who loves freedom but lives in the state currently ranked 49th overall in this respect, I have realized for some time that I would eventually become a political and/or economic refugee from California. In my small way, I have fought for many years to hold back the tide rising to swallow the state that has been my family’s home for at least five generations, but after all the time, money, and pointless votes spent in that effort, the precious few victories have proven fleeting or largely inconsequential thus far.

Professionally, the situation hasn’t been much better for me, which isn’t terribly surprising given that state service and politics are inextricably linked. The rising hypocrisy and venality of the ivory towers of academia have simply become too much for my continued sanity to bear. Otherwise, I might have retired graciously after 25 years in higher education, but I lack the time to dither over my own future any longer.

My only daughter will be a teenager all too soon. While I might have contented myself to follow the long tradition of righteous outlawry in the face of well-meaning tyranny, it would be undeniably selfish to let her grow up in an environment increasingly toxic to her rights as a free citizen, when I could give her a fighting chance for liberty and prosperity somewhere else. By removing her to more defensible ground, I can at least give her the choices that I felt were so long unavailable to me, but this must happen before she loses her way in the emotional wilderness of adolescence and such life-changing events are perceived as the enemy of her own happiness.

Therefore, I have resigned my post at the California State University and am heading north to Washington, where I will continue my career and begin building a new home for my family. If thereby I can somehow reverse the tide through the anthropic virtue of my own sacrifice, then so much the better. God has certainly enjoyed a chuckle at my expense before. Indeed, after months and years of delays and denials, one such effect began to manifest itself scarcely two weeks from the day I committed to relocating.

While the Evergreen State is no libertarian paradise, Washington does seem to be the right place at the right time, especially if I must follow the path of traditional employment for some years to come. It is also not so far gone as California, so it might yet be saved from a similar fate. Even if the political kinesthesis now operating throughout the United Stated can’t be avoided there either, perhaps the local balance can be tipped in the right direction within the national scheme. If the Gadsden flag flying in one prospective neighborhood that I visited was any indication, there is some hope for this.

Of course, predicting the future is impossible from within this historical inflection point. I feel like I am running before a storm. That storm may happily break and pass us harmlessly by—and the sun does seem to be breaking through the clouds just now—or it may not. The Pacific Northwest with its forests, mountains, and rivers has always beckoned to me, and my mind’s eye has long seen it as a place of refuge, so that is where I have chosen to shelter and where I might reset the clock long enough to peacefully watch my daughter’s generation grow to maturity … before possibly facing the dreadful choice between fight or flight once again.

Peruta v. San Diego

Though it was eventually adopted by the National Rifle Association’s litigation team, the case of Peruta v. San Diego was widely seen as something of a dark horse compared to other right-to-carry challenges, such as the matter of Richards v. Prieto. In fact, both cases were argued before the U.S. Court of Appeals for the Ninth Circuit back in Dec. 2012. Today, the appeals court finally issued its decision, concluding that “the right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense” and held that requiring “good cause” for the issuance of a license to carry a handgun “impermissibly infringes on the Second Amendment right to bear arms.…”

This decision represents a pleasing and unexpected victory—if a late one—for the right-to-carry movement in California. However, as history has shown, the fight may be far from over. Various judicial maneuvers may still be used to delay or reverse the order. Therefore and perhaps probably, Peruta may yet find itself petitioned for review to the U.S. Supreme Court, which has repeatedly demonstrated its reluctance to hear a right-to-carry challenge.

Stop the Ban on Semi-Automatic Rifles in California

I usually don’t write about prospective legislation in detail, but this example is so egregious that I feel obligated to do so. California Senate Bill 374, which was sent to the Governor last night, would prohibit the trade in all centerfire semi-automatic rifles without fixed magazines beginning next year. Rifles lawfully acquired before this time would be retained by their current owners but would have to be registered as “assault weapons” and would thus also be subject to more stringent transportation and usage restrictions.

The definitions involved are so broad that virtually all self-loading rifles would fall under the new law. This includes not only rifles that merely resemble modern military firearms, such as civilian ArmaLite-Stoner (AR) and semi-automatic Kalashnikov-action (AK) rifles that are currently legal with magazine locks installed, but also many target and hunting rifles from most major manufacturers, not excluding the very popular Springfield M1A rifles (and all other civilian versions of the U.S. M14), the Ruger Mini series, the Kel-Tec SU-16 series, surplus and commercial variants of the U.S. M1 carbine, nor arguably Garand rifles and Simonov carbines (Russian SKS, Yugoslavian m1959, etc.). Hundreds of thousands, if not millions of lawful gun owners would be affected, though many might not realize that fact until they were arrested for possession of unregistered “assault weapons.”

SB 374 appears obviously unconstitutional under the common-use test referenced in D.C. v. Heller, so I don’t expect that it would survive a constitutional challenge in court. Semi-automatic rifles are not more dangerous or unusual than other firearms and, in fact, are very rarely used in violent crime, so there is also no utilitarian justification for the would-be law. Nevertheless, we citizens must still do our part to voice opposition to misguided, unconstitutional legislation.

Therefore, if you value the right to arms and/or the civil rights of your children or possible children, I urge you to contact Governor Brown and encourage him to veto this bill.

Richards v. Prieto at the Ninth Circuit

On Thursday, Alan Gura argued the case of Richards v. Prieto before the U.S. Court of Appeals for the Ninth Circuit. As I have reported previously, this case challenges the constitutionality of discretionary licensing policies in California, specifically the requirement for an applicant to meet subjective standards of “good moral character” and “good cause” in order to be eligible for a license to carry a firearm on his or her person.

Oral Arguments

Democratic Rule in California

While the mainstream media were tripping over themselves to call President Barack Obama’s re-election, a perhaps even more important event went largely unnoticed. On Nov. 6th, the Democratic Party won commanding majorities in both the California Assembly and Senate, effectively completing a takeover of the state’s government. This electoral victory has been a few decades in the making but wasn’t quite unexpected.

Until the late 1980s, California often leaned to the Republican Party. However, the demographic changes that accompanied the state’s rapidly growing population began to deliver more and more state and federal offices to Democratic contenders. Instead of rallying and trying to build new relevance for themselves, the Republicans struck a nefarious political bargain with their rivals. Using self-serving legislative redistricting procedures, both parties carved out safe, unassailable electoral enclaves for themselves. In this manner, the Republicans preserved some political power in the California Legislature and the U.S. House of Representatives, even while they steadily lost representation in statewide offices.

After a series of fierce statewide initiative battles, the voters approved a new commission that would take control of the redistricting process away from the Legislature. These reforms were expected to produce competitive elections, and they certainly have. I suspected that the Republicans would lose seats, but I am slightly surprised that their defeat was this thorough this quickly.

The Democrats will now have a supermajority in the Legislature. Previously, the Republican minority had been able to hold off many proposed tax increases, since the state constitution requires a two-thirds majority to pass such legislation. All the while, though, the Democrats have argued that higher taxes are desperately needed to solve California’s fiscal problems, and the people have seemed to agree, approving taxation initiatives (at least when ostensibly aimed at the rich) on a fairly regular basis.

The people of California have spoken, so who am I to stand in their way any longer? Maybe we really can tax and spend ourselves into prosperity, so let’s get to the business of soaking the rich—whoever they may be. If they don’t like it, they can just move to some benighted flyover state.

Like it or not, the Democratic Party owns California now … and all its problems.

Appealing for the Right to Carry

Though it’s a few days after the fact, the first appeal brief has been filed in Richards v. Prieto, the case challenging the constitutionality of California’s discretionary handgun-licensing system—or at least the administration thereof. At this point, Richards is no longer in the vanguard of right-to-carry litigation, thanks to an accomplished bit of judicial stalling surrounding the once related case of Nordyke v. King. However, there is now a raft of cases throughout the federal court system that will likely demand a ruling from the U.S. Supreme Court within the next two years.

Even after a right-to-carry victory at the high court, there will probably be holdouts in California and the other restrictive states. Much like the long aftermath of Brown v. Board of Education, subsequent enforcement actions will be required if that proves to be true. Richards v. Prieto may ultimately become the first such action here.

Assault on “Assault Weapons” Begins

Sponsored by the Calguns Foundation and the Second Amendment Foundation, a lawsuit has been filed in federal court to challenge California’s ban on so-called assault weapons. Richards v. Harris attacks the ban itself on Second Amendment grounds and as a bonus also challenges the constitutionality of warrantless gun-related searches under the Fourth Amendment. The lawful possession of a firearm is not probable cause that a crime has occurred.

As I have noted before, “assault weapons” do not actually exist. They are an artificial and arbitrary category of weapon, functionally identical to many non-banned semi-automatic firearms, and much of the legislation passed against them was done through subterfuge, exploiting their superficial resemblance to machine guns, which have been tightly controlled since A.D. 1934 and effectively banned since A.D. 1986. Even in California, there are hundreds of thousands of firearms that have been modified to comply with the law’s confusing definitions.

The time has come to strike down this unconstitutional statute that prohibits firearms “in common use for lawful purposes.”

Right-to-Carry Loss in District Court

Seeming to deliberately misread the Heller and McDonald decisions, Judge M. C. England has ruled in favor of Yolo County in the case of Richards v. Prieto at federal district court. Citing the fact that it is not yet technically illegal to openly carry an unloaded firearm, Judge England concluded that the county’s arbitrary licensing policy is “constitutionally valid.” However, in an ironic coincidence, the California Assembly voted to eliminate this technicality earlier today.

A notice of appeal has been filed.

Right-to-Carry Update for California

Right-to-carry reform inched forward in California today as oral arguments were heard for Richards v. Prieto. Arguing for the plaintiffs, Alan Gura challenged the constitutionality of the state’s arbitrarily applied discretionary licensing system (and specifically how such discretion is exercised in Yolo County). With very narrow exceptions, the only legal way to carry a functional firearm for self-defense or other lawful purposes in California is to have a concealed-handgun license issued by the county sheriff or local police chief. As Gura argued, for these licenses to comply with the Second Amendment right to bear arms, they must be provided to all applicants not prohibited from owning firearms and cannot be denied for arbitrary reasons.

Regardless of how the judge eventually rules, appeals are expected.

Right-to-Carry Progress in California

The Calguns Foundation and the Second Amendment Foundation have dropped their case against Sacramento County, now that Sheriff John McGinness is effectively issuing concealed-handgun licenses for the “good cause” of self-defense. Sykes v. McGinness will now continue as Richards v. Prieto in Yolo County, where a constitutional showdown may yet be required. However, for now at least, the civil-rights skirmish in Sacramento is over.

Coupled with the CGF’s recently announced concealed-carry compliance and sunshine initiative, the victory in Sacramento illustrates how right-to-carry reform will proceed in California. With support from a broad base of volunteers in every county and bolstered by the public disclosure of acceptable “good cause,” a series of civil-rights lawsuits will challenge unequal and/or unconstitutional licensing practices until all of the counties have reformed or until the question of constitutionality is settled in federal court. Should the constitutional issue be settled elsewhere in the meantime, a network for implementing compliance in California will already be in place.

Beyond Chicago and Incorporation

And the Second Amendment has come back to California … again … and to the rest of the several states as well.

Today’s U.S. Supreme Court ruling in McDonald v. Chicago wasn’t the historic victory for civil rights that it could have and perhaps should have been, but it was a victory nonetheless. The court failed to breathe new life into the 14th Amendment’s intended protection for the “privileges or immunities” of American citizenship, but it still found that the Second Amendment applied to state and local governments, restoring the right to arms to its proper place in the pantheon of American civil rights. That is cause enough to celebrate for many reasons.

So what happens next?

Even after Chicago’s handgun ban is dismantled, many details about the nature and scope of the right to arms will still have to be defined. Many gun-control laws will be challenged. Some will pass constitutional muster, and some will not.

Legal challenges that have been on hold here in California can now proceed. The state’s concealed-carry licensing system and certified-handgun roster are clearly discriminatory and violate equal protection under the law. These are the low-hanging fruit. The optimists at the Calguns Foundation expect these to fall within two years.

Meanwhile, the usual batch of gun-control legislation has been moving forward, despite the fact that some form of incorporation has been widely expected since the ruling in D.C. v. Heller two years ago. California legislators and officials are either too ignorant or too disingenuous to avoid the oncoming train of constitutional law.

Elsewhere, some good progress has been made during the last year. Iowa joined the ranks of right-to-carry states, while Arizona became the third state to allow concealed carry without a license or permit. Federal regulations prohibiting firearms in national parks have also been lifted.

Why is this all so damned important? That I will explain in a future post.

Supreme Court to Hear Incorporation Case

The U.S. Supreme Court will hear McDonald v. Chicago to decide if the Second Amendment is incorporated against the states via the 14th Amendment. The case challenges Chicago’s ban on handguns, which is very similar to the District of Columbia’s ban that was struck down as unconstitutional last year. This case also bears watching for its approach to incorporation, which could finally put an end to this long bit of legalistic fiction.

Meanwhile, all pending right-to-arms litigation in California is on hold.

En Banc Hearing for Nordyke v. King

The en banc hearing for Nordyke v. King was today. The judges didn’t pull any punches, but late in the day, the court vacated the submission pending the disposition of several Second Amendment incorporation cases before the U.S. Supreme Court. Sadly, this decision will deny the honor of incorporation to California and delay progress on civil-rights litigation here.

Another Setback

As reported at the Volokh Conspiracy, the U.S. Court of Appeals has ordered Nordyke v. King to be reviewed by the court en banc. This unexpected move means that, temporarily at least, the Second Amendment has been snatched back from California and the rest of the Ninth Circuit. However, the news may not be all bad.

While the rehearing may void incorporation, it is also possible that the court may instead correct some of the problems with the original ruling, which held that the Second Amendment applied to state and local governments but that the county ordinance in question did not violate it. Even if incorporation is voided in the Ninth Circuit, the U.S. Supreme Court is still likely to hear one of the other incorporation cases currently on appeal. In any event, pending civil-rights actions in California may face a longer, more difficult course.

California Asks for Nationwide Incorporation of the Second Amendment

On July 6th, Attorney General Edmund G. Brown submitted an amicus brief to the U.S. Supreme Court on two pending Second Amendment incorporation appeals out of Chicago. Citing the protection of Constitutional rights in California, AG Brown encouraged the high court to hear these cases and to affirm the applicability of the Second Amendment to the states. He also asked the court for guidance on what kinds of firearms regulations are permissible.

The momentum for reform is clearly mounting now. The Supreme Court will doubtlessly rule in favor of nationwide incorporation, which will make sweeping advances for the legal right to arms almost inevitable. Furthermore, AG Brown’s brief also focused attention on California’s particular plight, which is shared by a handful of other states (such as Illinois and New York). Together, we suffer under a tangled, ineffective mass of gun-control laws that are becoming ever more clearly unconstitutional.

It seems that the question I asked just two months ago has been answered. A quiet but well-placed ally has indeed found the political cover needed to move toward a more reasonable interpretation of the right to arms in California.

Fighting for the Right to Arms in California

Scarcely two weeks have passed since the historic ruling in Nordyke v. King incorporated the Second Amendment in California, but unconstitutional gun-control laws and regulations are already being challenged. The Second Amendment Foundation and the Calguns Foundation have filed two lawsuits in federal court. Peña, et al. v. Cid attacks California’s roster of approved handguns as a de facto ban on common defensive weapons, while Sykes, et al. v. McGinness, et al. challenges the outdated and arbitrary application of the state’s discretionary handgun-licensing system.

The constitutional questions raised in both cases were addressed by last year’s U.S. Supreme Court ruling in D.C. v. Heller, so positive outcomes seem likely. The real question may only be how long it takes for the litigation to be resolved. I don’t expect victory to take more than 10 years, but it could come much more quickly than that.

It has been suggested that the right-to-arms movement in California has allies in high places. I have to wonder if these lawsuits wouldn’t provide the political cover for such allies to issue new, more reasonable interpretations of our current laws … in light of Second Amendment incorporation. Why not spare the state, counties, and municipalities from costly litigation?

The Second Amendment Comes to California

Today, the U.S. Court of Appeals for the Ninth Circuit ruled that “the Fourteenth Amendment [to the U.S. Constitution] incorporates the Second Amendment and applies it to the states and local governments.” While 14th Amendment incorporation is a profanely legalistic concept, the way has now been opened to challenge unconstitutional gun-control statutes and regulations in California and beyond. The case in question was Nordyke v. King.

In a clever bit of jurisprudence, the court ruled against the plaintiffs (gun-show organizers) while settling the incorporation matter. Alameda County was the “winner,” so it cannot appeal the decision. The right to arms is now the law of the land, at least for much of the western United States.

This is wonderful news for the civil-rights movement, but the fight is really only just beginning. Prepare for an onslaught of litigation over the next few years.

Propaganda Wins Again

Despite or perhaps because of months and months of transparent propaganda, Californians rejected even incremental political reform yesterday. I am very disappointed but only a little surprised.