September 27, 2023

Marbut Says Not to Get Too Excited Over Ninth Court Gun Ruling

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Dear MSSA Friends,

If you haven’t been living in a cave somewhere, you’ve probably heard that the Ninth Circuit Court of Appeals struck down California’s arbitrary system that effectively prohibits BOTH open and concealed carry for many Californians. The Ninth said that such a system is an intolerable interference with a fundamental right to “bear” arms. See:
Peruta v. County of San Diego (9th Cir. Feb. 13, 2014)

Don’t get too excited. It’s not a done deal yet.

This was only decided by a three-judge panel – the way the Ninth Circuit does most business on first pass. The panel, by random draw (and good luck), included two (thought to be) conservative judges and one liberal. Given the preponderance of liberal judges on the Ninth Circuit, this panel makeup was an unusual occurrence.

The defendant (San Diego County) will probably move for and likely get an “en banc” review (theoretically a review by the entire Ninth Circuit of 29 judges; in reality review by 11 randomly-selected judges).

If so, the Ninth circuit’s Chief Judge, Alex Kozinski (a conservative) will chair the en banc panel, and the other 10 judges on the en banc panel will be randomly-selected from a pool of judges who lean way liberal. Odds are it will be a liberal-dominated panel, which will then likely reverse and decide differently than the original three-judge panel, but who knows.

Then, it will be on to the Supreme Court, for the SC to resolve possible differences on this issue among the various federal circuit courts of appeals. As with our appeal of MSSA v. Holder over the Montana Firearms Freedom Act, there’s about a 1:20 chance the SC will accept that appeal of the San Diego case from the Ninth Circuit. If the SC does not accept the appeal, the decision of the en banc panel will stand.

There are certainly important issues at play in Peruta v. San Diego. In its famous Heller and McDonald decisions the SC looked primarily at the issue of “keep” arms, but was not so specific about “bear” arms. Many have asked how the mandate of the Second Amendment can be fulfilled if people can keep arms in their home for self defense and other reasons, and that this is a fundamental right, but they are not allowed to bear arms outside their homes. Good question; the very question that has been raised in Peruta.

Of course, it will be VERY interesting to watch what may happen with Peruta, but it is not a dependable victory yet; hopeful but not final.

Keep your powder dry.

Best wishes,

Gary Marbut, President
Montana Shooting Sports Association
Author, Gun Laws of Montana