Bench Memos

Important Second Amendment Procedural Victory in the Ninth Circuit

There is a development in February’s Ninth Circuit appellate ruling in Peruta, which held that San Diego County could refuse to establish a “shall issue” open carry policy or a “shall issue” conceal carry policy, but not both.

The State of California, among others, wished to intervene in Peruta and petition for an en banc hearing so the entire Ninth Circuit could hear the case, hoping for a reversal.

The judges disagreed, noting first that the State and other petitioners did not intervene when the case was in the lower court, or even in front of the panel itself, but rather waited until they discovered that the San Diego County Sheriff was not going to challenge the ruling. The judges noted:

Both California and the Brady Campaign argue that their delay in moving to intervene was reasonable. They filed their motions shortly after learning that Sheriff Gore would not file a petition for rehearing en banc, which they contend was the moment they knew that Sheriff Gore would not adequately protect their interests.

If the movants originally thought that Sheriff Gore adequately protected their interests, they must have “know[n] that [their] interests might be adversely affected by the outcome of the litigation.” The movants do not deny that they have long been aware of this case. Although the movants may have avoided some inconvenience to themselves by waiting to seek intervention, such considerations do not justify delay.

It seems clear what happened here: California and other amici assumed whichever Ninth Circuit judges heard any potential appeal would consist of jurists who are unpersuaded by Second Amendment arguments. In fairness to them, this was a reasonable assumption.

The judges also disagreed on an important second factor, addressing the assertion that this case is of such significance that the State of California must be allowed to intervene. The panel notes that their ruling in Peruta is cabined to the issue of a county’s good cause requirement to obtain permission to carry a handgun. Such a narrow ruling cannot be construed as drawing into question the constitutionality of any California statute.

So, for now, Peruta stands and it looks like citizens in the Ninth Circuit are closer than ever to having, at a minimum, a shall-issue handgun mechanism available to them. I will continue to keep Bench Memos readers updated on this case as it develops further. In the meantime, you can read the ruling here.  

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