Terror and Tragedy

I had planned to report on the Ninth Circuit’s en banc decision in Peruta v. San Diego … but then came the horrific events in Orlando. The appellate court denied the right of law-abiding citizens to bear arms in public … while a Muslim terrorist simply ignored such prohibitions in order to murder dozens of people whose homosexuality offended his religion. If you don’t understand why both of these things were constitutionally and morally wrong, then you are a self-deluding fool … or an Islamic terrorist.

Even in shall-issue Florida, the killing still took place in a gun-free zone. Firearms are prohibited in bars and other drinking establishments. Now, given the clientele involved, the victims in this incident were reasonably unlikely to be armed even if weapons weren’t prohibited, but the prohibition certainly did nothing to stop the murderer. Moreover, as he was apparently a licensed security guard, the killer knew full well that his intended victims would be “legally” disarmed.

The outcome might have been different … but probably not.

This isn’t about tactics, political or otherwise. It’s about fundamental principles and natural rights. What we saw both in California and Florida were violations of principles and attempts to suppress rights. Both events should be seen as abhorrent to their own degrees in what was supposed to be an enlightened, egalitarian culture—but I know they won’t.

The American experience came so close to that egalitarian dream, but now that light will fade. Our divisions will widen, our misguided envy and misplaced jealousy will fester, and we will slowly but surely tear ourselves apart. The only real question at this point is the magnitude of our fall.

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.

A Right-to-Carry Victory in the District of Columbia

Nearly five years ago, the case of Palmer v. D.C. was filed in the U.S. District Court for the District of Columbia. Following the landmark victory in D.C. v. Heller, which overturned D.C.’s ban on handguns in the home, this matter challenged the District’s total prohibition on carrying firearms for self-defense outside the home. Various motions were submitted over the course of the next year, but then the case languished, waiting for a decision on summary judgment. Meanwhile, a variety of other right-to-carry challenges made their way through the courts to their ultimate, conflicting resolutions.

Peruta v. San Diego and its brethren in the Ninth Circuit were the only other major right-to-carry cases that hadn’t been fully resolved, but even they were simply waiting for the final judicial shenanigans to be completed at the appellate level. Palmer was still pending at district court, seemingly consigned to eternal judicial delay. Until today … that is.

Ruling that “the District of Columbia’s complete ban on the carrying of handguns in public is unconstitutional” under any level of judicial scrutiny, the court struck down that ban and enjoined the enforcement of the applicable sections of D.C.’s penal code. The right to bear arms in our nation’s capital has been secured. For today … that is.

Monday may bring appeals and/or new legislation, so the struggle is still far from over.

Decision and Order: Palmer v. D.C.

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.

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.

Right-to-Carry Litigation in Summary

While the police finished murdering each other in southern California, and the President prepared “massive” proposals for the Congress, the case of Piszczatoski v. Maenza [now Drake v. Jerejian, 1/09/14] was argued before the U.S. Court of Appeals for the Third Circuit. With an en banc review of the decision in Moore v. Madigan looking unlikely, a victory in Piszczatoski would deepen the circuit split created by the loss in Kachalsky v. Cacace and thus make the conflicting jurisprudence even more difficult for the U.S. Supreme Court to avoid reviewing. Here is a summary of the major right-to-carry cases for those keeping score.

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.
Drake v. Jerejian	New Jersey	Lost on appeal at USCA3.
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.

There is a host of other right-to-arms cases that are working their way through the federal court system, but this is the vanguard litigation. A historical turning point is at hand, though some people can’t or won’t see the important civil-rights implications at work here. Few people need to carry guns, they argue, but then very few people needed to abort pregnancies … or to marry the spouses of their choice … or to ride at the front of the bus.