Month: December 2014

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Sua Sponte Call For Peruta En Banc Hearing

December 4, 2014 by 5 Comments

Under the General Orders of the 9th Circuit Court of Appeals, any judge in the circuit may call sua sponte for an en banc rehearing of a case. What this means translated into ordinary language, any judge, active or senior, within the 9th Circuit, can make the call for a en banc rehearing on his own behalf without any request from either the plaintiff or defendant.

And this is just what has happened in the case of Peruta v. San Diego. The parties involved have been ordered to file briefs within 21 days saying why or why not this case should be given an en banc rehearing. Amicus briefs may also be submitted within this 21 days period.

Professor Eugene Volokh, while surprised that this happened with Peruta, notes the reasoning behind this call.

This sort of “sua sponte” call for rehearing en banc, even without a petition, is a pretty well-settled procedure, though not one that’s often used. Opinions of three-judge panels in the Ninth Circuit are binding on all future three-judge panels, and can only be reversed by en banc rehearing (or, of course, by the Supreme Court). As a result, even if the parties are content with the result of an opinion, and don’t seek rehearing, each judge has his own interest in the precedents set by his colleagues. Judges are therefore allowed to seek en banc rehearing (which will be granted if a majority of active judges agree to rehear the case), regardless of whether the parties file petitions for such rehearing.

Given the strong Second Amendment rationale in the Peruta decision by Judge O’Scannlain, I’m guessing some of the more liberal judges on the 9th Circuit don’t want to be bound by it. After all, the 9th Circuit has a reputation as the most liberal circuit. Only 18 out of the 38 current active judges – those not having senior status – were appointed by Republican presidents.

Voting on whether or not to grant an en banc rehearing will be by all of the active judges on the 9th Circuit. If a majority approves the rehearing then, under 9th Circuit rules, a panel consisting of the Chief Judge and 10 other active judges will sit en banc and rehear the case. The 10 judges are chosen at random from among the active judges on the Circuit. The Chief Judge as of December 1st is Judge Sidney Thomas – the dissenter in the Peruta case and a Bill Clinton appointee from Montana.

I should emphasize that the Peruta case hasn’t gone to an en banc rehearing yet but that it could go to one if a majority of the judges call for it. We shall see.

H/T Sebastian

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And Now You Know The Rest Of The Story

December 2, 2014 by 3 Comments

The late radio broadcaster Paul Harvey used to have a feature called, “The Rest of the Story”. He’d end the feature with the tagline, “And now you know the rest of the story.” I saw the tweet below from Shannon Watts of Everytown Moms for Illegal Mayors yesterday. Just like Al Sharpton demands “Justice!”, Shannon demands “Gunsense!”.

This is not just some Walmart store. This is my Walmart store. The one that is a five minute or less drive from my house. The one at which I buy ammo if it is in stock. In other words, I know the store and I know the gun counter. Both ammo and firearms are kept in a locked case and only certain employees have the key.

The story as reported involved the theft of an AR-15 and 150 rounds of ammunition from the locked case on the Tuesday before Thanksgiving. The thief purportedly shoved the rifle down his pants and just walked out.

And now for the rest of the story.

Donald Alan Skelton, 33, was arrested on Thursday as he went back to the same Walmart. According to records from the NC Department of Public Safety, Skelton was released from prison in February. His criminal record goes back to at least 2008 and includes convictions for felony breaking and entering and for being a felon in possession of a firearm.

For this theft, Skelton was charged with larceny of a firearm, misdemeanor larceny, and possession of a firearm by a felon. He is being held in the Buncombe County Detention Center under an $11,000 bond.

Watts got 28 retweets and 7 favorites from this tweet. How the theft of a firearm by a convicted felon relates to “gunsense” and the call for universal background checks is beyond me.

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Oh, Canada! Please Keep The Liberals As The Loyal Opposition

December 1, 2014 by 6 Comments

I would think most people would want important decisions left in the hands of elected representatives and not in the hands of faceless bureaucrats. After all, a politician can be turned out of office while the bureaucracy lives on forever.

Not so the Liberal Party in Canada. They are quite upset that Stephen Harper and his Conservative government want to remove the power of the Royal Canadian Mounted Police to make determinations on which firearms should be prohibited. As can be seen in the poster they put up on Facebook, they consider it “unacceptable”.

The Liberal Party is the official opposition in the Canadian Parliament and is led by Justin Trudeau. His father, the late Pierre Trudeau, was Prime Minister of Canada from 1968-1979 and from 1980-1984. While serving as Justice Minister, the elder Trudeau introduced Bill C-150 which established a good deal of the gun control in Canada including the non-restricted, restricted, and prohibited categories of firearms.

Their official statement in opposition to Bill C-42 says, in part:

“First, it eliminates the need for owners of prohibited and restricted firearms to have a transportation license to carry those guns in their vehicles. This means they could freely transport handguns or automatic weapons anywhere within their province, whether to a grocery store or a soccer field.

“Secondly, it would take the power to classify firearms out of the hands of the police – the experts in keeping Canadians safe – and put it in the hands of politicians like Stephen Harper. And it would allow those decisions to be made without Parliamentary approval or oversight.

“We think Canadians will agree that this is wrong.

Somehow I doubt Canadian gun owners would consider this wrong.

Bill C-42, the Common Sense Firearms Licensing Act, was introduced in October by Minister for Public Safety Steven Blaney (middle picture in the poster).  The bill had its Second Reading on November 26th.

Here is a quick outline of what Bill C-42 would do from the Canadian Shooting Sports Association.

  • Create a six-month grace period at the end of the five-year licence period to stop people from immediately becoming criminalized for paperwork delays around license renewals;
  • Streamline the licensing system by eliminating the Possession Only Licence (POL) and converting all existing POLs to Possession and Acquisition Licences (PALs);
  • Make classroom participation in firearms safety training mandatory for first-time licence applicants;
  • Amend the Criminal Code to strengthen the provisions relating to orders prohibiting the possession of firearms where a person is convicted of an offence involving domestic violence;
  • End needless paperwork around Authorizations to Transport by making them a condition of a licence for certain routine and lawful activities;
  • Provide for the discretionary authority of Chief Firearms Officers to be subject to limit by regulation;
  • Authorize firearms import information sharing when restricted and prohibited firearms are imported into Canada by businesses; and,
  • Allow the Government to have the final say on classification decisions, following the receipt of independent expert advice.

This bill is, from what I can gather, a start. Neither the Coalition for Gun Control nor the National Firearms Association are altogether happy with Bill C-42. The former opposes the bill because it relaxes some gun control measures. The latter has decided not to endorse the bill because it doesn’t address what they consider the many significant problems with Canada’s firearms regulation. These include decriminalizing firearms possession, addressing regulations that classify firearms by their appearance, and eliminating the punitive safe storage requirements from the criminal code.

Like all bills reforming existing gun controls, it doesn’t go far enough. However, if passed, at least Canada can say it is no longer the New Jersey of the North when it comes to firearms transport.