Helpful Court Of Appeals Decision in Dangerous Right to Carry Firearms Case Clears the Way for Rulings in Better Cases

July 11, 2013 – In 2008, the U.S. Supreme Court confirmed that the Second Amendment right to keep and bear arms protects an individual right, and in 2010 the Court said it prohibits state and local government infringement of that right. Since then, multiple cases have been filed all over the country challenging the constitutionality of laws limiting the issuance of licenses to carry a firearm in public. Several such legal challenges are currently pending in the Ninth Circuit Court of Appeals. Some of these cases have been thoroughly researched, thoughtfully crafted, and well-executed. Unfortunately, other cases were ill-conceived, poorly prepared, and litigated unwisely. On July 8, the Ninth Circuit issued its first opinion in one of these pending “carry cases” – Mehl v. Blanas . Unfortunately, Mehl was one of the ill-conceived and poorly presented lawsuits. Among other flaws, the case included a Second Amendment claim even though it was filed four years before the Supreme Court confirmed that the Second Amendment protects a fundamental, individual right and despite law at the time precluding such an argument. Self-defense civil rights lawyers and Second Amendment advocates dreaded the possibility that Mehl might be the first carry case decided by the Ninth Circuit. Fortunately, the Ninth Circuit’s unpublished decision unanimously disposed of the Mehl case on grounds that did not reach the substantive legal questions and so the decision has no harmful influence as legal precedent. This means that the properly litigated carry cases can move forward, and are now likely to be the first to address the legal issues associated with the right to carry in the Ninth Circuit. One of those cases is Peruta v. Gore , an NRA-supported case that was brought on behalf of the CRPA Foundation and individuals who were denied carry licenses by San Diego Sheriff William Gore. The Peruta oral argument took place just days before the Mehl oral argument back in mid December of 2012. Former U.S. Solicitor General, Paul Clement , who argued before the U.S. Supreme Court in both Heller and McDonald, argued Peruta for the CRPA Foundation. Another legitimate case, Richards v. Prieto , was filed by the Second Amendment Foundation and Calguns Foundation and was argued the same day. Other lawyers also representing the CRPA Foundation in Peruta from the law firm Michel & Associates, P.C. , recognized the potential harm that could result if the Mehl case was decided first, so they filed an amicus curiae (friend of the court) brief in Mehl , highlighting the Mehl case’s many flaws. The CRPA Foundation was the only pro-Second Amentment group to file such a brief in the Mehl case, with support from the NRA. The Court then granted the CRPA Foundation’s request to allow its attorney C.D. Michel to participate in Mehl ’s oral argument. In an unusual turn of events, caused by counsel for plaintiffs in Mehl arriving an hour late to court (yes, you read that correctly), the Court requested that Mr. Michel argue first. In that argument , attorney Michel repeatedly pointed out that the Second Amendment claims in the Mehl case were unclear and premature, and argued the Court should not rule on the merits without first determining exactly what that claim was. The arguments made in the CRPA Foundation’s amicus brief and at oral argument by attorney Michel may have worked to derail the Mehl case and avoid a terrible decision. These arguments may have been what prompted the panel’s detailed probing of counsel for the plaintiffs in Mehl on that very topic when he finally arrived to the courthouse, resulting in the Court noting the following: At oral argument, plaintiffs clarified that they are not challenging California’s concealed-carry ban or licensing scheme as violative of the Second Amendment. Plaintiffs’ counsel stated: “This is more of an equal protection case. But the Second Amendment issue comes into play because it involves a fundamental right under the Equal Protection Clause. So thankfully, the Court avoided the substantive Second Amendment issue in Mehl . This leaves the Court with more well-prepared cases like Peruta to address the scope of the Second Amendment right to bear arms outside the home.

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Helpful Court Of Appeals Decision in Dangerous Right to Carry Firearms Case Clears the Way for Rulings in Better Cases

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