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PERUTA v. CALIFORNIA – The petition for a writ of certiorari is denied.

PERUTA v. CALIFORNIA


TOP Dissent

SUPREME COURT OF THE UNITED STATES

EDWARD PERUTA, et al. v. CALIFORNIA, et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit


No. 16–894. Decided June 26, 2017

The petition for a writ of certiorari is denied.

Justice Thomas, with whom Justice Gorsuch joins, dissenting from the denial of certiorari.

The Second Amendment to the Constitution guarantees that “the right of the people to keep and bear Arm[s] shall not be infringed.” At issue in this case is whether that guarantee protects the right to carry firearms in public for self-defense. Neither party disputes that the issue is one of national importance or that the courts of appeals have already weighed in extensively. I would therefore grant the petition for a writ of certiorari.

I

California generally prohibits the average citizen from carrying a firearm in public spaces, either openly or concealed. With a few limited exceptions, the State prohibits open carry altogether. Cal. Penal Code Ann. §§25850, 26350 (West 2012). It proscribes concealed carry unless a resident obtains a license by showing “good cause,” among other criteria, §§26150, 26155, and it authorizes counties to set rules for when an applicant has shown good cause, §26160.

In the county where petitioners reside, the sheriff has interpreted “good cause” to require an applicant to show that he has a particularized need, substantiated by documentary evidence, to carry a firearm for self-defense. The sheriff’s policy specifies that “concern for one’s personal safety” does not “alone” satisfy this requirement. Peruta v. County of San Diego, 742 F. 3d 1144, 1148 (CA9 2014) (internal quotation marks omitted). Instead, an applicant must show “a set of circumstances that distinguish the applicant from the mainstream and cause him to be placed in harm’s way.” Id., at 1169 (internal quotation marks and alterations omitted). “[A] typical citizen fearing for his personal safety—by definition—cannot distinguish himself from the mainstream.” Ibid. (emphasis deleted; internal quotation marks and alterations omitted). As a result, ordinary, “law-abiding, responsible citizens,” District of Columbia v. Heller, 554 U. S. 570, 635 (2008) , may not obtain a permit for concealed carry of a firearm in public spaces.

Petitioners are residents of San Diego County (plus an association with numerous county residents as members) who are unable to obtain a license for concealed carry due to the county’s policy and, because the State generally bans open carry, are thus unable to bear firearms in public in any manner. They sued under Rev. Stat. §1979, 42 U. S. C. §1983, alleging that this near-total prohibition on public carry violates their Second Amendment right to bear arms. They requested declaratory and injunctive relief to prevent the sheriff from denying licenses based on his restrictive interpretation of “good cause,” as well as other “relief as the Court deems just and proper.” First Amended Complaint in No. 3:09–cv–02371, (SD Cal.) ¶¶149, 150, 152. The District Court granted respondents’ motion for summary judgment, and petitioners appealed to the Ninth Circuit.

In a thorough opinion, a panel of the Ninth Circuit reversed. 742 F. 3d 1144. The panel examined the constitutional text and this Court’s precedents, as well as historical sources from before the founding era through the end of the 19th century. Id., at 1150–1166. Based on these sources, the court concluded that “the carrying of an operable handgun outside the home for the lawful purpose of self-defense . . . constitutes ‘bear[ing] Arms’ within the meaning of the Second Amendment.” Id., at 1166. It thus reversed the District Court and held that the sheriff’s interpretation of “good cause” in combination with the other aspects of the State’s regime violated the Second Amendment’s command that a State “permit some form of carry for self-defense outside the home.” Id., at 1172.

The Ninth Circuit sua sponte granted rehearing en banc and, by a divided court, reversed the panel decision. In the en banc court’s view, because petitioners specifically asked for the invalidation of the sheriff’s “good cause” interpretation, their legal challenge was limited to that aspect of the applicable regulatory scheme. The court thus declined to “answer the question of whether or to what degree the Second Amendment might or might not protect a right of a member of the general public to carry firearms openly in public.” Peruta v. County of San Diego, 824 F. 3d 919, 942 (2016). It instead held only that “the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” Id., at 924 (emphasis added).

II

We should have granted certiorari in this case. The approach taken by the en banc court is indefensible, and the petition raises important questions that this Court should address. I see no reason to await another case.

A

The en banc court’s decision to limit its review to whether the Second Amendment protects the right to concealed carry—as opposed to the more general right to public carry—was untenable. Most fundamentally, it was not justified by the terms of the complaint, which called into question the State’s regulatory scheme as a whole. See First Amended Complaint ¶63 (“Because California does not permit the open carriage of loaded firearms, concealed carriage with a [concealed carry] permit is the only means by which an individual can bear arms in public places”); id., ¶74 (“States may not completely ban the carrying of handguns for self-defense”). And although the complaint specified the remedy that intruded least on the State’s overall regulatory regime—declaratory relief and an injunction against the sheriff’s restrictive interpretation of “good cause”—it also requested “[a]ny further relief as the Court deems just and proper.” Id., ¶152.

Nor was the Ninth Circuit’s approach justified by the history of this litigation. The District Court emphasized that “the heart of the parties’ dispute” is whether the Second Amendment protects “the right to carry a loaded handgun in public, either openly or in a concealed manner.” Peruta v. County of San Diego, 758 F. Supp. 2d 1106, 1109 (SD Cal. 2010). As the Ninth Circuit panel pointed out, “[petitioners] argue that the San Diego County policy in light of the California licensing scheme as a whole violates the Second Amendment because it precludes a responsible, law-abiding citizen from carrying a weapon in public for the purpose of lawful self-defense in any manner.” 742 F. 3d, at 1171. The panel further observed that although petitioners “focu[s]” their challenge on the “licensing scheme for concealed carry,” this is “for good reason: acquiring such a license is the only practical avenue by which [they] may come lawfully to carry a gun for self-defense in San Diego County.” Ibid. Even the en banc court acknowledged that petitioners “base their argument on the entirety of California’s statutory scheme” and “do not contend that there is a free-standing Second Amendment right to carry concealed firearms.” 824 F. 3d, at 927.

B

Had the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result. This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion. As we explained in Heller, to “bear arms” means to “ ‘wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” 554 U. S., at 584 (quoting Muscarello v. United States, 524 U. S. 125, 143 (1998) (Ginsburg, J., dissenting); alterations and some internal quotation marks omitted). The most natural reading of this definition encompasses public carry. I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen. See Drake v. Filko, 724 F. 3d 426, 444 (CA3 2013) (Hardiman, J., dissenting) (“To speak of ‘bearing’ arms solely within one’s home not only would conflate ‘bearing’ with ‘keeping,’ in derogation of the [Heller] Court’s holding that the verbs codified distinct rights, but also would be awkward usage given the meaning assigned the terms by the Supreme Court”); Moore v. Madigan, 702 F. 3d 933, 936 (CA7 2012) (similar).

The relevant history appears to support this understanding. The panel opinion below pointed to a wealth of cases and secondary sources from England, the founding era, the antebellum period, and Reconstruction, which together strongly suggest that the right to bear arms includes the right to bear arms in public in some manner. See 742 F. 3d, at 1153–1166 (canvassing the relevant history in detail); Brief for National Rifle Association as Amicus Curiae 6–16. For example, in Nunn v. State, 1 Ga. 243 (1846)—a decision the Heller Court discussed extensively as illustrative of the proper understanding of the right, 554 U. S., at 612—the Georgia Supreme Court struck down a ban on open carry although it upheld a ban on concealed carry. 1 Ga., at 251. Other cases similarly suggest that, although some regulation of public carry is permissible, an effective ban on all forms of public carry is not. See, e.g., State v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).

Finally, the Second Amendment’s core purpose further supports the conclusion that the right to bear arms extends to public carry. The Court in Heller emphasized that “self-defense” is “the central component of the [ Second Amendment] right itself.” 554 U. S., at 599. This purpose is not limited only to the home, even though the need for self-defense may be “most acute” there. Id., at 628. “Self-defense has to take place wherever the person happens to be,” and in some circumstances a person may be more vulnerable in a public place than in his own house. Volokh, Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1515 (2009).

C

Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively. Twenty-six States have asked us to resolve the question presented, see Brief for Alabama et al. as Amici Curiae, and the lower courts have fully vetted the issue. At least four other Courts of Appeals and three state courts of last resort have decided cases regarding the ability of States to regulate the public carry of firearms. Those decisions (plus the one below) have produced thorough opinions on both sides of the issue. See Drake, 724 F. 3d 426, cert. denied sub nom. Drake v. Jerejian, 572 U. S. ___ (2014); 724 F. 3d, at 440 (Hardiman, J., dissenting); Woollard v. Gallagher, 712 F. 3d 865 (CA4), cert. denied, 571 U. S. ___ (2013); Kachalsky v. County of Westchester, 701 F. 3d 81 (CA2 2012), cert. denied sub nom. Kachalsky v. Cacace, 569 U. S. ___ (2013); Madigan, 702 F. 3d 933; id., at 943 (Williams, J., dissenting); Commonwealth v. Gouse, 461 Mass. 787, 800–802, 965 N. E. 2d 774, 785–786 (2012); Williams v. State, 417 Md. 479, 496, 10 A. 3d 1167, 1177 (2011); Mack v. United States, 6 A. 3d 1224, 1236 (D. C. 2010). Hence, I do not see much value in waiting for additional courts to weigh in, especially when constitutional rights are at stake.

The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right. See Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (Thomas, J., dissenting from denial of certiorari) (slip op., at 6) (“The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions”); Jackson v. City and County of San Francisco, 576 U. S. ___, ___ (2015) (same). The Constitution does not rank certain rights above others, and I do not think this Court should impose such a hierarchy by selectively enforcing its preferred rights. Id., at ___ (slip op., at 1) (“ Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document”). The Court has not heard argument in a Second Amendment case in over seven years—since March 2, 2010, in McDonald v. Chicago, 561 U. S. 742. Since that time, we have heard argument in, for example, roughly 35 cases where the question presented turned on the meaning of the First Amendment and 25 cases that turned on the meaning of the Fourth Amendment. This discrepancy is inexcusable, especially given how much less developed our jurisprudence is with respect to the Second Amendment as compared to the First and Fourth Amendments.

*  *  *

For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfullydissent.

(bold is mine)

https://www.law.cornell.edu/supremecourt/text/16-894

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nancy.larned

Oath Keepers Merchandise

7 comments

  1. Justice Thomas clearly has our backs on this one. The sad truth is that beside Gorsuch, it appears that the rest of the Court is null and void when it comes to protecting our rights to keep and bear arms. SHAME ON THE COURT for failing to stand for the rights of Californians and in the process the rights of every other American under the sun. THIS IS A DANGEROUS PRECEDENT.

  2. “It instead held only that “the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” Id., at 924 (emphasis added).”

    I would say this shows ignorance, but that is not the case, this is deliberate, more of those working to destroy from inside (traitors/domestic enemies) our legitimate government. It is another grab for power from those that SERVE WITHIN OUR GOVERNMENTS. There are way too many documents from the framers and the time of the US Constitutions creation to show otherwise. The US Constitution does not only protect the people’s rights to arms of any type, to carry arms openly, etc. Remember that those that serve within our governments are constitutionally, thus contractually, bound to use the Militia to
    — Enforce the US Constitution (supreme Law of this nation) and each state’s Constitution (highest Law of the state),
    — Enforce and keep the “Laws of the Union” (which are constitutional laws ONLY),
    — Protect the country against all enemies both domestic and foreign, and
    — “to suppress Insurrections and repel Invasions”.

    But that would then immediately do away with the “domestic army” of governmental professional law enforcement that is under, and obeying for the most part (literally), all orders, color of law or lawful, against the American people; and most are color of law. Though those that serve within the governmental professional law enforcement – state or federal – are Oath bound to the US Constitution they willingly or ignorantly allow themselves to be used against our nation, to destroy her from the inside by not even bothering to read the supreme contract that they not only must follow as their lawful duty FIRST, but are also Oath bound to do so.

    The American people are to also keep their own manufacturers of weapons in case those who serve within our governments do NOT do their duty as written within the US Constitution to the Militias.

    George Washington: “A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent of others for essential, particularly military, supplies.”

    Richard Henry Lee: “Whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.” (1788, Initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights)

    George Washington: “It may be laid down, as a primary position, and the basis of our system, that every citizen who enjoys the protection of a free government…, but even of his personal services to the defence of it, and consequently that the Citizens of America (with a few legal and official exceptions) from 18 to 50 Years of Age should be borne on the Militia Rolls, provided with uniform Arms, and so far accustomed to the use of them, that the Total strength of the Country might be called forth at Short Notice on any very interesting Emergency.” (“Sentiments on a Peace Establishment”, letter to Alexander Hamilton; “The Writings of George Washington”)

    Bliss vs. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251 (1822): “For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution.”

    Bliss v. Commonwealth: “Arms restrictions – even concealed weapons bans – are unconstitutional, since arms bearing is an individual right and the legislature may not restrict any aspect of such a right.”

    Cockrum v. State, 24 Tex. 394, at 401-402 (1859): “The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the “high powers” delegated directly to the citizen, and `is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.”

    Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846): ” `The right of the people to keep and bear arms shall not be infringed.’ The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right.”

    Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878): “To prohibit a citizen from wearing or carrying a war arm … is an unwarranted restriction upon the constitutional right to keep and bear arms. If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege.”

    Thomas Cooley: “The right is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon… If the right were limited to those enrolled, THE PURPOSE OF THE GUARANTEE MIGHT BE DEFEATED ALTOGETHER BY THE ACTION OR NEGLECT TO ACT OF THE GOVERNMENT IT WAS MEANT TO HOLD IN CHECK. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for that purpose”.

    Tench Coxe, Delegate to the Constitutional Convention of 1787: “Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American… The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people.”

    An editorial on Gage’s proclamation stressed that an armed populace must keep government
    in check: “The opposing an arbitrary measure, or resisting an illegal force, is no more
    rebellion than to refuse obedience to a highway-man who demands your purse, or to fight a
    wild beast, that came to devour you. It is morally lawful, in all limited governments, to resist
    that force that wants political power, from the petty constable to the king…. They are rebels
    who arm against the constitution, not they who defend it by arms.” “A Freeman,” PA. EVENING POST, June 27, 1775, at 2. [Vol. 7:2]

    There are also those who served in modern days who knew what the Second Amendment is for.

    Silveira v. Lockyer, 328 F.3d 567 (2003), Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals reminded us that the Second Amendment is not about duck hunting: “All too many of the other great tragedies of history – Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few – were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. … If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.
    “My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
    “Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten.” Judge Alex Kozinski

    Summary: Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
    For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. PERSONS ACTING UNDER COLOR OF LAW WITHIN THE MEANING OF THIS STATUTE INCLUDE POLICE OFFICERS, PRISONS GUARDS AND OTHER LAW ENFORCEMENT OFFICIALS, AS WELL AS JUDGES, CARE PROVIDERS IN PUBLIC HEALTH FACILITIES, AND OTHERS WHO ARE ACTING AS PUBLIC OFFICIALS. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.
    The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.

    1. CAL- I can tell by your response that you know history well. Couldn’t have said it any better.I am beginning to think that anything that comes out of the 9th circuit court is flawed. Am saddened that the Supreme Court didn’t do their duty and stop this abuse of power.

  3. Seems everyone on the planet knows Americans have the constitutional-protected ability to carry firearms in any manner they choose, with absolutely no license necessary and no matter where they might be at any given moment, except the criminal judiciary and the criminal local or state governments. High time for that to change as is stated by Thomas’ and Gorsuch’s opinion: (quote): “…the time has come for the Court to answer this important question definitively. Twenty-six States have asked us to resolve the question presented…I do not see much value in waiting for additional courts to weigh in, especially when constitutional rights are at stake…the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent…” (end quote). The other SCOTUS ‘ are corrupt and should be removed from office for dishonorable behavior.

  4. As we all know and believe: No government entity and or law and or ordinance and or regulation can impede, infringe or otherwise diminish our rights prescribed our constitution. I am a free man. We are a free people.

    There are 325 + million of us of which 22 + million work for the public government jobs. If half the 22 million are patriots, that leaves the government with 11 million. Approximately 250 million are aged 18 and older. Approximately 40% of adults admit owning guns. Therefore, at minimum are 100,000,000 gun owners that tell the government where to shovel their tyrannical aggression. Yes, they fear us, and yes they make unconstitutional laws that pretend to control us.

    I am a free man…

    ΜΟΛΩΝ ΛΑΒΕ

    1. Yup, you’re either free or not and it’s up to us individuals to hold that line. We have to know who our enemies are. Anyone enforcing such dictates is simply NOT your friend, regardless of pretended authority and goes on that list. Keep your eyes open.

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