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Poor Kamala's had a rough week...
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Judge Anthony Ishii denied her efforts to delay fixing the unconstitutional waiting-period system.
We could say it, but not better than the Court itself did yesterday: “Defendant [Harris] made various arguments to justify the waiting period, but the evidence did not actually support a 10-day waiting period....The [state’s] arguments were more in line with rational basis scrutinyâ€â€“ a weak form of judicial review that was expressly rejected in the U.S. Supreme Court’s landmark District of Columbia v. Heller decision – “than with intermediate scrutiny,†which forces governments to prove how a law impinging on a constitutional right serves an important purpose. In the case of the waiting period laws, Attorney General Harris couldn’t. "The Court notes that Defendant has not identified any error of law or any erroneous factual finding. The Court stands by its analysis and its findings that the waiting period laws violate the Second Amendment as applied to three classes of individuals."
Oh, and this zinger: “A bench trial has concluded, and a law that is actively being enforced has been found to be unconstitutional. The Court does not know how Defendant or the BOF prioritizes projects, but dealing with an unconstitutional law should be towards the top of the list.†Ouch.
She's going to have an uncomfortable time defending a gun-related speech ban.
On Monday, four gun dealers moved for a preliminary injunction in Tracy Rifle v. Harris, a First Amendment case that challenges a handgun display ban as unconstitutional. Said the dealers in the brief:
"The sale of handguns is not only legal—it is constitutionally protected. The First Amendment protects truthful, nonmisleading commercial speech promoting lawful products or services, but especially when the products or services are themselves protected by other constitutional rights, such as the right to abortion or the right to buy contraceptives. What is true for unenumerated constitutional rights must be at least as true for the enumerated right to bear arms, which includes the right to possess and acquire handguns."
Sounds right to us. Here's a fun question to ponder: how much non-gun speech will Kamala throw under the bus in order to defend this purely handgun-focused speech ban? We'll find out soon (more on this below).
The Ninth Circuit denied her attempts to intervene in Peruta v. Gore. Now she'll have a first-row seat as thousands of Californians exercise their fundamental rights.
When San Diego Sheriff Gore decided he was done fighting a losing battle, Harris decided to toss her hat into the Second Amendment ring. The Ninth Circuit tossed her hat back out -- and her requests to unravel the NRA's progress in Peruta right along with it.
Now we're just waiting for the mandate to issue and thousands of law-abiding Californians to apply for (and get) their carry license... much to her anti-gun heart's chagrin. We can't wait until she sees the DOJ's CCW counter spin up past 100,000....then 250,000... then over 1 million...
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Jeff Silvester, et al., v. Attorney General Kamala Harris
10-Day Waiting Period
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What it is: Federal Second Amendment challenge to California's 10-day waiting period (as applied to law-abiding gun licensees/known gun owners).
Where it's at: Ninth Circuit Court of Appeals. (Briefing schedule not yet set.)
Next step: Briefing and oral argument. The A.G. may yet again request a stay of the district court decision.
Bottom line: Does California's 10-day waiting period, as applied to those who have a Carry Concealed Weapons permit (“CCWâ€), those who already have a firearm, or those who have a firearm and a Certificate of Eligibility (“COEâ€), violate the Second Amendment? We think so, and so does the trial court -- and the judge has said so twice now.
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Tracy Rifle and Pistol, et al. v. Attorney General Kamala Harris, et al.
Statutory ban on the public display of handguns by licensed dealers.
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What it is: Federal First Amendment challenge to California's ban on the public on-premises display of handguns, including images of handguns and the word "handgun," by licensed gun dealers.
Where it's at: Plaintiffs recently filed their motion for preliminary injunction.
Next step: Hearing on January 29, 2015.
Bottom line: Does the First Amendment protect handgun-related commercial speech? We think it does.
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Peña, et al. v. DOJ Bureau of Firearms Chief Stephen Lindley
Handgun roster / microstamping
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What it is: Federal Second Amendment challenge to California's handgun "roster" and microstamping requirements.
Where it's at: On October 2, plaintiffs (including CGF) filed a notice of supplemental authority with the district court, pointing out the winning decision in Silvester v. Harris. Previously, both sides filed supplemental briefing on July 7 per the court's order. Both sides have moved for summary judgement, and all mandatory and supplemental briefing ordered by the court has been submitted.
Next step: Awaiting decision by Federal District Court Judge Kimberly J. Mueller.
Bottom line: Are gun control laws -- like California's handgun "roster" and microstamping requirements -- that limit access to arms in common use for lawful purposes unconstitutional? We think so, and this case will provide us with the answer from the courts.
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John Doe, et al. v. Attorney General Kamala Harris, et al.
DOJ policy that goes against the text of the Penal Code
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What it is: State law challenge to CA DOJ's enforcement practice of denying a "1-in-30" handgun purchase limit exemptions to gun buyers that possess both a Certificate of Eligibility (COE) and ATF FFL03 ("Curio and Relic") license.
Where it's at: Plaintiffs are conducting limited discovery. Following that, the case will move forward on motions.
Next step: Completion of discovery and filing of motion(s).
Bottom line: Can state agencies like the DOJ make up policies as they go, especially when those policies directly conflict with the express written text of the statutes? And, even if they somehow could, did DOJ's rulemaking follow the Administrative Procedures Act? We think not.
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Roy Vargas, et al., v. Los Angeles Sheriff John Scott (Lu v. Baca)
County rule forcing CCW applicants to first apply to local police department
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What it is: State law challenge to Los Angeles County Sheriff's Department policies and practices that require carry license ("CCW") applicants to pay costs, complete additional forms, and face additional time delays beyond what is allowed under the Penal Code.
Where it's at: CGF won at the trial court, but Los Angeles has appealed. Their opening brief is expected to be filed at the Second District Court of Appeal for the by the end of November.
Next step: Briefing by both sides at the Court of Appeal must be completed and then a hearing date will be set for oral arguments, which should take place sometime in 2015.
Bottom line: Can carry license issuing authorities require applicants to jump through unnecessary, burdensome hoops and comply with restrictive rules that go beyond the system established by the Legislature? We think the state law is quite clear here, but Los Angeles (and others) think they can get away with such behavior. Notably, published Court of Appeal decisions are binding on all trial courts throughout the state; unless the California Supreme Court (or another district of the Court of Appeal in a different case) decides to weigh in, this case should resolve some of the "pre-application" problems faced by Californians who want to exercise their right to bear arms for self-defense in public with loaded, operable handguns.
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Adam Richards, et al., v. Yolo County and Sheriff Ed Prieto
Self-defense as "Good Cause" for carry license
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What it is: Federal Second Amendment challenge to Yolo County Sheriff Ed Prieto's application of a "heightened good cause" standard for carry license ("CCW") applicants.
Where it's at: With the Ninth Circuit's recent denial of requests by Attorney General Kamala Harris to intervene and for an en banc (full court) rehearing in Peruta, the Ninth Circuit will now decide whether or not to grant Sheriff Prieto's request for an en banc rehearing in our Richards case.
Next step: The Ninth Circuit will need to decide if it will grant Sheriff Prieto's requests; they'll also need to address another request by Attorney General Harris to intervene in Richards.
Bottom line: The Ninth Circuit's Peruta decision got it right on the Second Amendment. They're just as correct now to deny Harris' requests to take over for Sheriff Gore. Does the fundamental, individual right to bear arms extend outside our homes? The Supreme Court said it did, and the Ninth Circuit reaffirmed it when it faithfully applied Heller and McDonald....but there's still some baseball left to play.
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IN CASE YOU MISSED IT:
Following the Ninth Circuit’s rejection of requests to intervene in the Peruta v. Gore carry license case by such anti-gun stalwarts as Attorney General Kamala Harris and the Brady Campaign, Riverside County Sheriff Stan Sniff doubled down on the concept of “discretion.†If you’ve at all followed his troubling [and, we argue, unlawful and unconstitutional] carry license policies and politician weasel-speak, this probably doesn’t come as a surprise. Sniff’s recent press release, captioned “Sheriff Sniff’s Observations on the Recent 9th Circuit Peruta Decision,†contains a few gems that we respond to below... READ MORE
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