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Regressive 9th Circuit Court of Appeals in San Francisco Rejects Challenge to Restrictive ‘May-Issue’ Concealed Carry Practices

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Judges Callahan, Silverman, Bea and Smith dissented to one degree or another, arguing the majority opinion eviscerates the Second Amendment right of individuals to keep and bear arms as defined by Heller and reaffirmed in McDonald.

 reports: A federal appeals court held that the right of a member of the public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment.

“Once again the 9th Circuit showed how out of touch it is with mainstream Americans. This decision will leave good people defenseless, as it completely ignores the fact that law-abiding Californians who reside in counties with hostile sheriffs will now have no means to carry a firearm outside the home for personal protection.”

— Chris W. Cox, executive director of the NRA’s Institute for Legislative Action

The combined cases under review, Peruta v. San Diego and Richards v. Yolo County, were historic reversals of lower court rulings issued by the U.S. Ninth Circuit Court of Appeals in 2014 which found that, in both cases, California sheriffs used unconstitutional policies to limit the right to carry under the Second Amendment.

Since the rulings, the cases have been widely cited and have been the impetus to roll back overly strict may-issue permitting practices in a number of areas outside of California, but were set aside and reheard by an 11-judge panel formed for an en banc review last year.

The panel consisted of only two of the original three-judge panel that found for Peruta and Richards, Chief Judge Sidney Runyan Thomas, an appointee of President Clinton who dissented in the initial ruling, and Consuelo María Callahan, an appointment of President George W. Bush who ruled in favor of Mr. Peruta.

“The Second Amendment is not a ‘second-class’ constitutional guarantee. In the context of present-day California law, the Defendant counties’ limited licensing of the right to carry concealed firearms is tantamount to a total ban on the right of an ordinary citizen to carry a firearm in public for self-defense.”

The other nine judges are largely a mix of appointments by Democratic Presidents, with the ghosts of Clintons past appearing heavily on the panel:

  • Judge Harry Pregerson, a 1979 appointment by President Carter
  • Judge Barry G. Silverman, a 1998 appointment by President Clinton
  • Judge Susan Pia Graber, a 1998 appointment by President Clinton
  • Judge M. Margaret McKeown, a 1998 appointment by President Clinton
  • Judge William A. Fletcher, a 1998 appointment by President Clinton
  • Judge Richard Anthony Paez, a 2000 appointment by President Clinton
  • Judge Carlos Tiburcio Bea, a 2003 appointment by President George W. Bush
  • Judge Norman Randy Smith, a 2007 appointment by President George W. Bush
  • Judge John Byron Owens, a 2014 appointment by President Obama.

In the end, in an 89-page ruling handed down Thursday, the panel went with the earlier District Court rulings and set aside the 2014 gun rights victories.

“Thus, Plaintiffs’ Second Amendment rights have been violated. While states may choose between different manners of bearing arms for self-defense, the right must be accommodated.”

— Judge Callahan

“We hold that the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public,” written by Judge Fletcher for the majority.

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“The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment,” noted Fletcher before citing references to gun control laws going back to Edward I of England in 1299, moving on to Colonial America, the Civil War post-bellum period, and onto modern times.

[read the full text here, at guns.com]

“Because the Second Amendment does not protect in any degree the right to carry concealed firearms in public, any prohibition or restriction a state may choose to impose on concealed carry — including a requirement of ‘good cause,’ however defined — is necessarily allowed by the Amendment,” he wrote. Read the rest of this entry »

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Seattle Counter-Terror Ad Banned by 9th U.S. Circuit Court

Seattle-metro-bus

Of all the free speech legal battles I am embroiled in, this one is the most absurd. It illustrates the crippling submission and capitulation of government authorities to Islamic supremacist demands.

Pamella Gellar writes: This all started back in 2013, when the FBI was running a terrorism awareness campaign featuring bus ads depicting photos of sixteen of the world’s Most Wanted Terrorists.

“We sued Seattle King Metro. Predictably, the liberal fascists in Seattle sided with the supremacists. We appealed to the clowns on the notorious 9th U.S. Circuit Court of Appeals. And now they, as expected, ruled in favor of sharia and supremacism.”

This was a publicity campaign sponsored by the Joint Terrorism Task Force for the State Department’s Rewards for Justice (RFJ) program. The ad featured the world’s leading global terrorists. As it happened, all but one were Muslim. Islamic supremacists and their leftist lapdogs demanded the want ad come down, claiming it was insulting to Muslims. The FBI caved and pulled the Seattle-area bus ads featuring the “Faces of Global Terrorism” after receiving complaints “that the ads stereotype Muslims.”

“We are constantly being clubbed with the claim that ‘moderate Muslims’ abhor and reject the acts of terrorism that are constantly committed in the name of their religion, so why would they object to a wanted poster featuring Islamic terrorists who supposedly have twisted and hijacked their peaceful religion? Why would ‘moderate Muslims’ provide cover for jihad terror?”

My organization, the American Freedom Defense Initiative (AFDI), believed that this public awareness message was critical to national security and should run. We are constantly being clubbed with the claim that “moderate Muslims” abhor and reject the acts of terrorism that are constantly committed in the name of their religion, so why would they object to a wanted poster featuring Islamic terrorists who supposedly have twisted and hijacked their peaceful religion? Why would “moderate Muslims” provide cover for jihad terror? Why, indeed.

Comparison of original FBI ad and AFDI ad.

Comparison of original FBI ad and AFDI ad.

“We will never give up fighting for the freedom of speech and we will never stop telling the truth about the global jihad. We will appeal to the US Supreme Court.”

AFDI submitted a virtual copy of the FBI ad to run on Seattle transit. The cowards at Seattle King Metro refused to run the ad, claiming that it was disparaging to Muslims. Reality is disparaging to Muslims?

We sued Seattle King Metro. Predictably, the liberal fascists in Seattle sided with the supremacists. We appealed to the clowns on the notorious 9th U.S. Circuit Court of Appeals. And now they, as expected, ruled in favor of sharia and supremacism.

Of all the free speech legal battles I am embroiled in, this one is the most absurd. It illustrates the crippling submission and capitulation of government authorities to Islamic supremacist demands. Read the rest of this entry »


FTCA Act Update: Supreme Court Eases Rules To Sue Federal Government For Malpractice

supreme-court-ext

The justices, voting 5-4, ruled in two cases the deadlines for filing such lawsuits can be extended if plaintiffs tried their best to comply or simply failed to learn about important information before a deadline.

WASHINGTON (AP) — The Supreme Court on Wednesday made it easier for people to sue the federal government for negligence, in a decision that could affect military veterans with claims of medical malpractice.

“One case stemmed from a fatal traffic accident on Interstate 10 in Phoenix in which a car passed through a safety barrier into oncoming traffic. The plaintiff, Marlene June, represents the child of one of two people killed in the crash.”

The justices, voting 5-4, ruled in two cases the deadlines for filing such lawsuits can be extended if plaintiffs tried their best to comply or simply failed to learn about important information before a deadline.

“June claimed that the Federal Highway Administration made her wait more than two years before she was allowed to depose officials and uncover evidence that the barrier had failed a crash test.”

Justice Elena Kagan wrote the majority opinion that combined the cases and upheld rulings by the 9th U.S. Circuit Court of Appeals that said the deadlines were somewhat flexible under the federal law that deals with lawsuits against the government.

White-House-w-Fence

The Obama administration argued that Congress intended the deadlines to be firm and that the government should not leave itself open to old claims indefinitely.

“The other case involved a Hong Kong woman who sued the Immigration and Naturalization Service after she was detained in Oregon, strip-searched and deported.”

But Kagan said Congress did not clearly indicate it wanted those deadlines to be iron-clad when it passed the Federal Tort Claims Act. “The time limits in the FTCA are just time limits, nothing more,” Kagan wrote. Judges have discretion to extend the deadlines, she said. Read the rest of this entry »


Free Speech’s Shrinking Circle of Friends

censored-hand-over

Liberals and even some conservatives embrace the ‘heckler’s veto’ threat to the First Amendment

Barry A. Fisher writes: An essential freedom-of-speech paradigm was established in 1949 by the Supreme Court in Terminiello v. Chicago. In that case a vitriolic, racist speaker spoke to an auditorium packed with supporters. Outside the auditorium was what was described as “ ‘a surging, howling mob hurling epithets’ at those who would enter and ‘tried to tear their clothes off.’ ” The police blamed the mob’s action on the speaker, Arthur Terminiello, a Catholic priest under suspension by his bishop. He was convicted of disturbing the peace and fined.

“University of Chicago law professor Harry Kalven Jr. would later coin the term “heckler’s veto” to describe what would have happened had the court decided otherwise. First Amendment rights could be “vetoed” by others who create a public disturbance that forces the silencing of the speaker.”

The Supreme Court, in a 5-4 decision, reversed the conviction and ruled that Terminiello’s speech was protected by the First Amendment. The court said that the police, instead of taking action against the speaker, should have protected him and controlled the crowd, including making arrests if necessary. University of Chicago law professor Harry Kalven Jr. would later coin the term “heckler’s veto” to describe what would have happened had the court decided otherwise. First Amendment rights could be “vetoed” by others who create a public disturbance that forces the silencing of the speaker.

hammer-censored

Sony ’s recent crisis over the film “The Interview”—along with the domestic political correctness and anti-hate speech movements, various international agreements and globalization itself—is leading the country precisely toward a heckler’s veto.

There is growing support, including among academics and racial and religious advocacy groups, that what they define as hate speech…Law professors have concocted influential concepts like ‘outsider jurisprudence,’ ‘critical race theory,’ ‘critical feminist theory’, and ‘storytelling’ theory to define some kinds of politically incorrect speech as not speech at all, but ‘mechanisms of subordination.'”

Protesters have silenced speakers on several occasions this year, sometimes with the law’s support. In February a panel of the Ninth Circuit Court of Appeals upheld a California high school’s decision to prohibit students from wearing American-flag T-shirts on Cinco de Mayo “to avert violence.” In August a panel of the Sixth Circuit Court of Appeals upheld the ejection of an anti-Islam Christian group from an Arab festival in Dearborn, Mich., on the theory that the group’s speech would incite festivalgoers to violence. (In October the full court agreed to reconsider the decision.)

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In December protesters against the non-indictment of a police officer in Ferguson, Mo., stormed into an auditorium at the University of California, Berkeley, and shut down a speech by Internet entrepreneur Peter Thiel . And during the past academic year, protesters caused the cancellation of commencement addresses by former U.S. Secretary of State Condoleezza Rice at Rutgers University, and International Monetary Fund Director Christine Lagarde at Smith College. Read the rest of this entry »


BREAKING: California Concealed Gun Ruling Stands: State Can’t Intervene in Appeal

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LA Times reports: A federal appeals court decided Wednesday that California has no legal right to challenge a ruling that prevents counties from imposing strict requirements on carrying concealed weapons in public.Concealed-Carry-Women2

The decision was another victory for gun rights advocates, but it may not be the last word. The state can appeal. If the state and other groups ultimately lose, counties throughout California will be required to issue permits for concealed weapons to residents who meet background checks and want the weapons for self protection.

[Also see New Court Decision Likely Ends California’s Restrictions on Conceal Carry Permits]

In a 2-1 ruling, the U.S. 9th Circuit Court of Appeals denied an attempt by Atty. Gen. Kamala D. Harris, a gun control group and law enforcement associations to intervene in a case that struck down San Diego County’s policy of tightly restricting the carrying of concealed guns.

[Also see – More Californians may carry concealed guns after ruling]

The panel that issued Wednesday’s decision was the same one that ruled 2-1 in February in favor of gun owners. Read the rest of this entry »


Hawaii Now a Shall-Issue State

awaiidefensefoundation.org

awaiidefensefoundation.org

Gun owners (or law nerds) will be familiar with the distinction between “may issue” and “shall issue”. It’s an important distinction (worthy of a post dedicated to that topic) that’s essential to understanding concealed carry laws, fortunately, it’s outlined here. Is your state a “shall issue” state? If not, it should be.

woman-gun-practice

For NRO’s  The Corner, Charles C. W. Cooke reports:

Hawaii, a state that has long been disgraced by some of the strictest gun-control laws in the country, now has “shall-issue” concealed-carry — for now, at least. Per Guns.com:

In a decision released Thursday by the U.S. 9th Circuit Court of Appeals, in the case of Baker v. Kealoha, the court followed the lead of the recent Peruta case to declare Hawaii’s restrictions on firearms carry unconstitutional under the Second Amendment.

The case was heard by the same trio of judges who sat on the earlier Peruta and Richards cases in California, which challenged the state’s restrictive ‘may issue’ policies that required concealed carry permit applicants to show “good cause” to warrant a permit. The judges, Diarmuid O’Scannlain, Sidney Thomas and Consuelo Callahan, heard Baker in December 2013 and issued their findings Thursday…

woman-gun1

Read the rest of this entry »


Want Fewer Guns on California Streets? Open Carry May Be the Answer

Very few gun owners want to carry openly displayed guns. The police hassle you, stores refuse to serve you and some people won't talk to you. Criminals might even target you, seeking to steal your expensive sidearm. (Jerome Favre / Bloomberg / February 22, 2014)

Very few gun owners want to carry openly displayed guns. The police hassle you, stores refuse to serve you and some people won’t talk to you. Criminals might even target you, seeking to steal your expensive sidearm. (Jerome Favre / Bloomberg / February 22, 2014)

Letting people tote their guns around on their hips sounds dangerous. But think again.

Adam Winkler  writes:  What’s the best way to minimize the number of guns on California’s streets? That’s the question confronting gun control supporters after this month’s ruling by the U.S. 9th Circuit Court of Appeals striking down San Diego’s restrictions on carrying handguns in public. That case was brought by gun owners who applied for but were denied permits to carry concealed weapons.

[Adam Winkler is a professor of law at UCLA School of Law and the author of “Gunfight: The Battle Over the Right to Bear Arms in America”. It’s available at Amazon]

San Diego will undoubtedly appeal the decision in the hope of saving its restrictive policy for awarding concealed carry permits. Lawmakers who support gun control might want to consider another option: Rewrite state law to allow people to carry guns openly.

For many in the gun control community, that will seem like a crazy idea. State law bans ordinary civilians from carrying openly displayed firearms. And gun control advocates don’t want to see more gun enthusiasts showing up at Starbucks or the local movie theater with guns hanging on their hips like Gary Cooper in “High Noon.”

Yet if they don’t want too many guns in public, open carry may be the answer.

Read the rest of this entry »


Bench Update: Ninth Circuit Holds Second Amendment Secures a right to Carry a Gun

Gun rights activist Holly Cusumano, 18, waves a flag during a rally for the 2nd Amendment at the Utah State Capitol in Salt Lake City on Saturday, March 2, 2013. (AP Photo/Rick Bowmer)

(AP Photo/Rick Bowmer)

Eugene Volokh reports:

So holds today’s Peruta v. County of San Diego (9th Cir. Feb. 13, 2014) (2-1 vote). The court concludes that California’s broad limits on both open and concealed carry of loaded guns — with no “shall-issue” licensing regime that assures law-abiding adults of a right to get licenses, but only a “good cause” regime under which no license need be given — “impermissibly infringe[] on the Second Amendment right to bear arms in lawful self-defense.”

Read the rest of this entry »


More on the Court Win: For First Amendment Libel Law Purposes, Bloggers = Media

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More on the Ninth Circuit decision from The Volokh Conspiracy:

 writes:  So holds today’s Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014) (in which I represented the defendant). To be precise, the Ninth Circuit concludes that all who speak to the public, whether or not they are members of the institutional press, are equally protected by the First Amendment. To quote the court,

The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352.

Read the rest of this entry »


BENCH UPDATE: Bloggers Have First Amendment Protections, Federal Appeals Court Rules

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GRANTS PASS, Ore. (AP) Jeff Barnard reports:  A federal appeals court ruled Friday that bloggers and the public have the same First Amendment protections as journalists when sued for defamation: If the issue is of public concern, plaintiffs have to prove negligence to win damages.

The 9th U.S. Circuit Court of Appeals ordered a new trial in a defamation lawsuit brought by an Oregon bankruptcy trustee against a Montana blogger who wrote online that the court-appointed trustee criminally mishandled a bankruptcy case.

The appeals court ruled that the trustee was not a public figure, which could have invoked an even higher standard of showing the writer acted with malice, but the issue was of public concern, so the negligence standard applied.

Read the rest of this entry »