Two other “may issue” 2A cases decided on basis of Peruta may be reviewed en banc.
Peruta v. County of San Diego (742 F. 3d 1144) was the 9th Circuit 2-to-1 ruling this past February that found unconstitutional California’s “may issue” scheme to restrict the public carry of a firearm to the wealthy and politically influential. (The full-length opinion is embedded at the bottom of this post.) Specifically, the court found that:
San Diego County’s “good cause” permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.
(As an aside, I had the opportunity to meet briefly with Mr. Peruta when I spoke at the NRA’s 17th Annual Firearms Law Seminar this past April, and found him quite personable.)
One potential consequence of this ruling was that the losing parties could request the case to be reheard by the entire 9th Circuit panel, consisting of 11 judges. It was generally believed that the larger panel would be much less amenable to the plaintiff’s claims than was the two-judge majority in the underlying Peruta decision. (The 9th Circuit as a whole is widely referred to as “the most liberal circuit in the country.”)
The San Diego County defendants, however, declined to seek an en banc rehearing of the case.
In an effort that can only be described as desperate, the state of California and various gun control organizations (including the moribund Brady Campaign) sought to step into the defendants’ shoes by obtaining intervenor status; this would have enabled them to request the en banc hearing not sought by the actual defendants.
Yesterday, however, the 9th Circuit crushed these hopes by denying them intervenor status. This decision ends Peruta for purposes of the 9th Circuit, and thus has been perceived by many as being the final decision on the “may issue” matter in the Circuit.
As noted by Eugene Volokh, there are two other cases dealing with “may issue” moving through the 9th Circuit: Baker v. Kealoha, challenging a similarly restrictive gun licensing regime in Hawaii, and Richards v. Prieto, which does the same for Yolo County in California.
In both of those cases the rulings were favorable to the parties challenging the restrictive licensing. In those cases, however, the losing defendants have sought en banc rehearing of those decisions, a request still under consideration.
So, we’re not done with the 9th Circuit on “may issue” quite yet, folks.
Regardless of what happens with the 9th Circuit, there is now a split of opinion on the matter among the Federal circuit courts, making it highly likely that the matter will attract the attention of the Supreme Court (although the Court has been disinclined to accept Second Amendment-related cases the last couple of years).
Here’s the Peruta decision in its entirety. I strongly encourage reading it, as it’s well written, despite the whiny tone of the dissent.
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.