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9th Circuit Denies Intervenor Status on Peruta 2A Case

9th Circuit Denies Intervenor Status on Peruta 2A Case

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, @LawSelfDefense

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 (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.


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justadumbcitizen | November 13, 2014 at 3:58 pm

Can one just imagine the outrage from abortion-rights (sic) groups if the same level of proof were applied to a woman’s decision to have an abortion? HAHAHAHA

    …or to register to vote!

      I would be willing to propose that the requirement to concealed carry be changed to require *only* one of the following:
      A) A Concealed Carry license from any other state
      B) An up-to-date voter ID card from your current location

      I predict if my modest proposal is passed, the Left will suddenly find great interest in scrubbing voter databases of ineligible people and requiring photo-id, as well as a number of other less-desirable hoops to jump through on the voting path.

Very informative article Mr. Branca, thank you. What happens if an en banc hearing sides against Peruta? Does the en banc decision overrule the three judge panel? Or is there another process to decide the conflict?

    Milhouse in reply to ssgmarkcr. | November 14, 2014 at 12:22 am

    An en banc decision obviously overrides a panel decision.

      redc1c4 in reply to Milhouse. | November 14, 2014 at 2:43 am

      there will NOT be an en blanc review of this case, but what an en blanc review that reverses one of the other case does to this one is something that is beyond my ken, since IANAL.

      Mr. Branca, could you weigh in on the effect to this case if the en blanc review of the others overturns the original decision of either of those cases?

Mr. B has a unique talent for explaining the legal processes concisely in a way accessible to a layman’s level of understanding, and I am grateful for that.

When am I going to be able to drive between my home in Arizona (where I have a permit to carry) and my home in Washington State (where I have a permit to carry) via California and still be covered by the second amendment?

JackRussellTerrierist | November 14, 2014 at 3:16 am

Pheww! That was loooong. But they reached the right decision and the work product of their “homework” was fascinating to read. But now I guess I’ll have to read more than just the excerpts and brief bits of Blackstone that I’ve managed here and there. I’m curious.

I didn’t read all of Judge Thomas’ dissent. I tuned out when the straw man showed up and the sniveling began…and went on for 47 pages.

Mr. Branca, I live in California in a “may issue” county. Does this mean the sheriff must issue me a CCW now, or do I still have to wait because of the other pending cases you mentioned?

This case is rather old now, and was correctly decided by the (th Circuit at that time, with regard to the narrow issue in question. The original decision went far afield from the original question, however.

I have to agree with Judge Thomas here, that the decision to deny intervenor status to the State of California is wrong. The decision in Peruta affects the entire state and the existing state law. For that reason, the State has a vested interest in defending state statute. As the initial defendant does not wish to pursue the matter, the state now bears the responsibility for defending the will of the people as expressed in statute. For this reason, they should have been granted intervenor status, as has been done in the past, and allowed the request for an en banc hearing of the case.

Oversoul Of Dusk | November 14, 2014 at 11:22 am

I enjoyed the un-PC way the majority jabbed them in the ribs on page 62:
“For these reasons, Heller’s favorable mention of concealed-carry restrictions is not the SILVER BULLET the County had hoped it was, at least not in this case.” (Emphasis mine.)

I hope the mention of bullets made a leftist somewhere wet the bed.

Mystery Meat, IANAL, but at least until an en banc ruling on one of the other cases happens, yes, that would be my understanding.

Isn’t it strange that liberal anti gun activists see nothing wrong with requiring all of these restrictions on the 2nd amendment, such as background checks, photo ID, finger prints and criminal record but think that requiring just a simple photo ID to vote is somehow a violation of the voter’s rights? Or allowing an abortion just because the woman says so without any requirements whatsoever?