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State Can't Intervene in Order to Rehear Calif. Concealed Carry Case

By Mark Wilson, Esq. on November 13, 2014 | Last updated on March 21, 2019

Back in February, the Ninth Circuit struck San Diego's policy of denying concealed carry permits absent a showing of "good cause." General concern for one's own safety wasn't enough; an applicant for a concealed-carry license had to come up with a pretty good reason for needing to carry a gun around in public.

Judge Diarmuid O'Scannlain, relying on the U.S. Supreme Court's opinions in District of Columbia v. Heller (the Second Amendment protects an individual's right to own a gun) and McDonald v. City of Chicago (the Second Amendment applies to the states) found that, because those opinions were so rooted in "self defense" as an overarching theme of the Second Amendment, a generalized concern for safety was sufficient cause to apply for a concealed carry license.

If It Was So Important, Why Wait So Long?

The original appellees, and losers at the panel stage -- San Diego County and William Gore, the San Diego County Sheriff -- declined to move to hear the case en banc. Instead, the State of California and Brady Campaign to Prevent Gun Violence -- only amici up to this point -- petitioned for a rehearing en banc. Of course, only parties, not amici, can make such a motion, and the panel construed this as a motion to intervene. We wondered in March what would happen if the state tried to step in.

O'Scannlain, again joined by Judge Consuelo Callahan, denied the motion to intervene as untimely: "The movants sought intervention more than four years after this case began." None of the factors appeared to the majority to be in the intervenors' favor. There appeared to be no extraordinary reason why California and the Brady Campaign should be allowed to intervene, especially since they had those four years to do it.

Dissent: Just Let Them Intervene

As with the original opinion, Judge Sydney Thomas dissented. Though the case began as a simple decision about a San Diego County policy, "the case morphed into another challenge entirely, as the majority opinion instead considered the constitutionality of California's firearm regulatory framework." Thomas criticized the majority for trying to have it both ways. On the one hand, O'Scannlain expanded Peruta's challenge from the original, asserted claim against the county ordinance to include California's handgun regulatory scheme. And on the other hand, he claims that the constitutionality of a California statute isn't at issue, so the state has no interest here. "That the opinion primarily addressed state regulation of handguns could hardly be clearer," Thomas wrote.

It's also not fair to California, he continued, to penalize the state for not entering the litigation earlier, as "the plaintiffs were careful to argue that the case was about the County's policy, not state regulation." So why would the state have needed to intervene at that stage?

Finally, Thomas repeated his criticism from his panel dissent that the plaintiffs didn't comply with an FRCP requirement that a plaintiff whose pleading calls a state constitutional provision into question must "serve the state's attorney general with notice of the pleading and the constitutional question it raises." That never happened, meaning one allowable remedy is to "remand to the district court to allow intervention" -- or, in this case, let them intervene now.

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