Wednesday, June 28, 2017

Peruta Goes Down. Supreme Court Remains a Crap Shoot

In an article today at the American Thinker entitled Supreme Court Declines to Affirm Second Amendment Rights, Robert Arvay says:
The United States Supreme Court has declined to affirm the constitutional, Second Amendment rights which are guaranteed to citizens. They did so by rejecting an appeal from a lower court. That court had ruled that the state of California can impose severe restrictions on issuing permits to carry firearms. In refusing to hear the appeal, the lower court ruling remains in effect.
The case, to which Mr. Arvay refers is of course Peruta v. California. A Washington Examiner article goes into more detail. For the Examiner, Ryan Lovelace writes:
The question the Supreme Court refused to hear is whether the Second Amendment gives people the right to carry handguns outside the home for self-defense, including concealed carry when open carry is forbidden by state law.
David Kopel explains in the Washington Post article entitled Peruta v. San Diego Analysed that:
The four Peruta dissenters did not disagree with the specific doctrinal point about concealed carry. Indeed, Judge Smith’s dissent pointed out that the majority’s compilation of precedents on concealed carry was unnecessary. “If the issue before us is truly whether California can, in isolation, prohibit concealed carry, a simple memorandum disposition citing to Heller would be sufficient. A formal opinion, much less the gathering of our en banc panel, would not be necessary to answer the issue framed by the majority.”
According to the dissenters, the Second Amendment expressly guarantees the right to bear arms; legislatures may regulate but not prohibit the right. So in the 19th-century cases, the legislature could choose to ban concealed carry while not even requiring a permit for open carry. The dissenters wrote that today, legislatures ought to allowed to reverse that preference: to restrict open carry, while allowing concealed carry under a fair and reasonable licensing system. (Citing Eugene Volokh, “Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and A Research Agenda,” 56 UCLA L. Rev. 1443 (2009).)
As Justice Thomas said, and I am paraphrasing, most people in government in high office are protected by police, who are armed. But for the average man on the street, having a team of armed guards at their disposal is clearly beyond their means. The Second Amendment means that government must allow the carrying of arms. But in the case of California, one can not carry openly, even unloaded, and one can not carry concealed if the Sheriff of your county refuses to give anyone a concealed carry permit. Effectively, you have been "legally" stymied from bearing arms, and the Second Amendment has been effectively rendered null.  Before the concealed carry revolution of the mid 1980s, the Second Amendment had been rendered null and void in most of the country.  In most cases, a concealed carry license was not granted, and while open carry was techically allowed, you could count on it that you would be arrested and charged with something if you did.  Here in North Carolina it was cited as Going Armed to the Terror of the People. While the statute had well defined elements, these would be discounted such that simply arming oneself would be enough for a conviction.

The refusal of ceritorari by the Supreme Court allows San Diego County to continue its practice of not issuing permits, even though California law allows permits, and even though many counties in California effectively are shall issue. As Mr. Arvay writes:
That said, it remains amazing that basic Constitutional rights could possibly be so easy to suppress. While some rights that are not even in the Constitution are enforced, there seems to be significant antipathy regarding the right to keep and bear arms -- a right that “shall not be infringed.”
I note again that everyone, with few exceptions, who is in power is loathe to advocate for the carrying of arms by the average guy. After all, who wants to be killed over doing what he percieves as his job. Besides, and this is the important point, while gun rights groups do get out a lot of votes, they don't contribute much to a candidates campaign finances. Indeed, here in North Carolina, almost everyone working for Grass Roots North Carolina is a volunteer. Unlike the Demanding Moms and Everytown efforts of Mr. Bloomberg, we have no paid lobbists working for GRNC. Because there are no big bucks coming from GRNC or from NRA, we constantly have to remind them that we are watching, and we will remember in November.

Meanwhile, as always, getting justice from the Supreme Court is always a crap shoot.  It often depends on which side of the bed Justice Kennedy awoke that day.  But in this case, the side of Justice had too few soldiers in the field.

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