quote:

I know I must be missing something, but why would we want this to go to the Supreme Court when the ruling is already favorable to us? Is it so that the ruling is made even more concrete?

Because the 3-judge panel's decision will almost certainly be reversed if it is heard en banc. This is what happened in the Peruta v. San Diego case. The 3 judge panel held there was a right to bear arms outside one's home, and the en banc panel of 11 judges quickly reversed it. SCOTUS declined to hear the case and the en banc decision is what now stands.

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Originally posted by Balzé Halzé:

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Originally posted by bigdeal:

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Originally posted by wcb6092:
I may be wrong but I think if it is appealed it will be up to the SCOTUS to decide whether to hear it or let it stand.

I'll give you 3 to 1 odds that SCOTUS will continue down their current path and refuse to take this up. SCOTUS has demonstrated a complete unwillingness to go any further than Heller at this point in time.

I know I must be missing something, but why would we want this to go to the Supreme Court when the ruling is already favorable to us? Is it so that the ruling is made even more concrete?

Besides the possibility of reversal in an en banc hearing, if we could count on a favorable decision from the Supreme Court, the benefit would be that a Ninth Circuit decision is only binding on lesser courts in the Ninth Circuit.

A Supreme Court decision is binding on everybody.

Here's the Ninth Circuit:



So if, say, the Ninth Circuit decision stands, and someone sues New Jersey for open carry, the courts in New Jersey can completely ignore the Ninth Circuit decision if they choose to.

To be more specific, they can LEGITIMATELY completely ignore the Ninth Circuit decision if they want to... courts ignore decisions that, in theory, they should be bound by all the time.

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Originally posted by flashguy:
If not reversed by SCOTUS (which I would doubt), that decision will have far-reaching consequences, I think.

flashguy

Technically, it can only affect the 9th Circuit, but if the Supremes don't take it up, it can signal that the 9th got it right.

The 9th isn't as far lefty as you think. It's reputation as crazy left is 10 to 20 years old. (They are still lefties, but not as much.)

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Originally posted by ElToro:
IMO The 9th is scared shitless the scotus will overturn then especially once Kavanaugh gets seated.

Better to take a light-ish hit now than a nuke on the Kavanaugh enhanced SCOTUS...

The guy who actually got this done is posting about it over on the sherdog mma forum.

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Originally posted by ElToro:
IMO The 9th is scared shitless the scotus will overturn then especially once Kavanaugh gets seated.

That is what I suspect also. The Supreme court rulings will soon support the 2nd Amendment, and cockroaches of the 9th are scurring as the light is about to be turned on.

Guys, both this and the other recent pro-2A decisions were by three-judge panels. We'll have to see how the full 9th Circuit treats these cases if they get appealed.

ok, this is the 9th

the 9th Circus Court

they got two cases in a row, and they got them right

is there something in the water?

this has me worried

one of the indisputable truths was that you could always count on the 9th to get it wrong...

these are truly strange times

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Originally posted by tatortodd:

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Originally posted by P220 Smudge:
Not a decision I would have expected from the 9th.

It's like being in the Twilight Zone this past week as they got a 2A case right last week too.

Yeah, I am just stunned. It's almost as epic as Roberts' siding with Obamacare.

Its like getting three green traffic lights in a row, downtown …

Recent decisions provide a solid template for a future Supreme Court.

National Review
David French

These are words I never, ever thought I’d type: Two different panels of the Ninth Circuit Court of Appeals have written opinions that — taken together — provide not only the proper roadmap for understanding the right to “keep and bear arms” but also the proper roadmap for effective, constitutional gun control.

I wrote about the first case last week. A divided panel affirmed a trial court’s injunction blocking the state of California’s confiscation of so-called “large-capacity” magazines. While the court’s opinion was short — and confined to determining whether the lower court had abused its discretion — it contained two key statements. The court noted that the Second Amendment protected ownership of weapons that have a “reasonable relationship to the preservation or efficiency of a well-regulated militia” and that “the ammunition for a weapon is similar to the magazine for a weapon.”

Combined with Heller’s clear statement that the Second Amendment protects weapons in “common use” for “lawful purposes,” then one can see that proclaiming a weapon “military-style” (as gun controllers often do with AR-15s or Glocks) doesn’t diminish their constitutional protection. Instead, their common ownership, combined with their “reasonable relationship” with militia use, should enhance their constitutional status.

The second case was decided yesterday. A different divided panel struck down the state of Hawaii’s ban on openly carrying weapons outside the home. In other words, the right to “bear” arms includes the right to carry a weapon to defend yourself outside the home.

Gun-rights advocates will remember that the Ninth Circuit had previously ruled that the Second Amendment did not “preserve or protect a right of a member of the general public to carry concealed firearms in public.” (Emphasis added.)

The author of the majority opinion, Judge Diarmuid O’Scannlain, walks the reader through a comprehensive analysis of early-American and post–Civil War gun-rights debates (including the racist history of Reconstruction-era carry limitations on black Americans) and concludes that while the Second Amendment may not protect a right to concealed carry, it most definitely protects a right to carry. The practical effect of the decision (especially combined with other case law) demonstrates that the state has a choice — protect a right to concealed carry, protect a right to open carry, or protect both. But if you block a citizen’s right to carry entirely (or limit the right to a “small and insulated subset of law-abiding citizens”), then you violate his right to “bear” arms.

But wait. Didn’t I also reference constitutionally appropriate gun control in my opening paragraph? I did indeed.

In one of the most interesting parts of the opinion, Judge O’Scannlain dissects the dissent’s argument that the Founders would have permitted governments to impose preemptive limitations on carry rights by, for example, requiring those who carry weapons in public to post a surety, or a bond. O’Scannlain’s response is instructive:

The dissent erroneously characterizes surety laws as imposing a severe restriction on the public carry of weapons absent good cause to fear injury. And its analysis of the actual historical evidence is, in a word, cursory. While the dissent focuses on the exception to the surety requirement for carriers with a specialized need for self-defense, it ignores the clearly limited scope of the requirement in the first place: only upon a well-founded complaint that the carrier threatened “injury or a breach of the peace” did the good cause exception come into play, “by exempting even the accused” from the burden of paying sureties. . . . Thus, “[a] showing of special need did not expand carrying for the responsible; it shrank burdens on carrying by the (allegedly) reckless.”

Surety requirements depended on an individualized, “well-founded complaint.” And complainants typically had to possess a “reasonable cause to fear injury or breach of the peace.”

This early-American safety measure has echoes in modern “red flag” laws, or the gun-violence restraining order that I’ve written about before (and the NRA has endorsed). Under a GVRO (just like surety laws), the limitation on gun rights comes after a specific complaint and the presentation of evidence. Only then does the state infringe upon the right to carry. Moreover, the costs of frivolous complaints could be high:

The dissent might wish to set aside the requirements to complain under surety laws, but we suspect those who actually did complain under such laws would hesitate before treating the requirements so lightly. Were a complainant to bring an “unfounded, frivolous or malicious” claim that an arms carrier threatened the public peace, the magistrate would not only dismiss the complaint, but also hold the complainant “answerable to the magistrate and the officer for their fees.”

Taken together, these two Ninth Circuit panels have articulated three principles — each based on originalist readings of the Second Amendment and solid historical evidence — that should guide gun-rights jurisprudence at the Supreme Court.

First, the Second Amendment does, in fact, protect weapons that are related to militia use — especially when those weapons are in common use for a lawful purpose. This principle can and should preclude the vast majority of so-called “assault weapons” bans and bans on standard-capacity magazines in semi-automatic rifles and pistols.

Second, states must permit gun owners to “bear” arms outside the home. While I largely concur with the reasoning that the original public meaning of the Second Amendment does not require protection for concealed carry, if a state bans concealed carry, it must permit open carry.

Third, when dealing with weapons in common use for lawful purposes, the form of gun control that is best designed to preserve public safety — while also respecting constitutional rights — is gun control that is individualized and evidence-based, based on the user, not general, based on the weapon. Though there are exceptions, gun violence tends to come from known threats (violent felons, troubled individuals with long records of problematic behavior) and generally does not occur spontaneously and randomly.

The broader Ninth Circuit is far less respectful of gun rights (much less originalism) than the panels in these two cases, but the court is in a bind. An en banc decision reversing the open-carry decision would then confront the Supreme Court with the argument that the Second Amendment simply does not protect a meaningful right to “bear” arms at all. It’s difficult to essentially read words out of the Constitution, especially in the face of an increasingly textualist and originalist Supreme Court — and a court that includes Brett Kavanaugh will likely be less reluctant to review court decisions restricting Second Amendment rights.

The contours of coming Supreme Court conflicts are starting to emerge. There is much litigation ahead before these decisions are set in judicial stone, but the originalist architecture is set — thanks to judges from the federal appeals court based in San Francisco. Wonders will never cease.

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