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San Diego Backing Off; Concealed Carry May Still be Appealed

By William Peacock, Esq. on February 24, 2014 | Last updated on March 21, 2019

Two weeks ago, the Ninth Circuit shocked the legal world by holding, contrary to many circuits with more conservative credentials, that the U.S. Constitution guarantees the right to keep and bear arms, which in practical terms, must guarantee the right to bear them in public -- i.e., concealed or open carry.

Our gut reaction was en banc appeal. And because the panel's 2-1 majority aligned along conservative-liberal lines, there was some question about what an entire en banc court might hold.

That question may remain unanswered, as the San Diego Sheriff's Office, in a press release, announced that would not petition for an en banc rehearing of the case.

Political Move?

We're spit-balling here, but San Diego is a pretty conservative county.

While it's possible that the Sheriff's Office may have been convinced by the merits of the court's "exhaustive look at the history of jurisprudence surrounding the Second Amendment, and more specifically what it means to 'bear arms,'" (their words), maybe, the office thinks dropping the appeal better reflects the wishes of their constituency.

And, of course, there is the not-insignificant cost of petitioning, briefing, and arguing an en banc appeal.

The language of the press release, mentioning sua sponte en banc and legislative remedies, while declining to appeal, certainly seems like it's reaching out to both sides of the debate. 

Sua Sponte En Banc or Supreme Court?

Even with the Sheriff's Office declining to press the matter, the press release correctly notes that a sua sponte en banc rehearing could happen. Per Federal Rule of Appellate Procedure 35, a single judge can call for a vote on whether or not to hear the case sua sponte, if the "proceeding involves a question of exceptional importance."

David Kopel, writing for the Volokh Conspiracy blog, notes that the press release is "scrupulously silent" about a Supreme Court certiorari petition, which must be filed with 90 days. It'd be strange for the county to punt on what would seem to be a favorable en banc situation in order to file a Hail Mary with the High Court, but it is certainly possible. 

And, of course, we'd be remiss not to mention the parallel cases in other circuits. Though the Supreme Court passed on the Fourth Circuit's concealed carry case earlier this term, and the Fifth Circuit's case this morning, it still has a chance to take on the Third Circuit's decision in Drake v. Filko as early as this fall.

The Third and Fourth circuits, unlike the Ninth, ruled in favor of "good cause" requirements for concealed carry.

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