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Defending Statutes

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HolderDaisy.jpgTwo weeks ago, a divided panel of the Ninth Circuit declared California's law on carrying guns in public to be unconstitutional in Peruta v. San Diego, No. 10-56971.  Judge O'Scannlain's opinion begins, "We are called upon to decide whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense."  He and Judge Callahan answer yes.  Judge Thomas dissents.

The San Diego Sheriff announced he would not seek rehearing en banc.  The California Attorney General has now moved to intervene and petitioned for rehearing en banc.

In my view, the AG is entirely correct to do this regardless of where one stands on the underlying question.  The proper operation of our system of separation of powers requires a defense of statutes when they are challenged judicially, and it is the Attorney General's duty to make that defense as long as one can reasonably be made.  It is dereliction of duty for AGs to refuse to defend statutes merely because they agree with the plaintiffs on close questions of constitutional law or, even worse, merely because they oppose the policy behind the statute.  The United States Attorney General notoriously failed to defend the anti-Miranda statute in the Dickerson case back in 1999.  That was very wrong, even though the case ultimately ended with the statute being struck down.

In this case, I have no doubt that Ms. Harris supports the policy behind the statute, so the disagreement issue is not presented.  However, I expect she will be criticized for defending it, so I wanted to state up front that her decision to make the case for the statute's constitutionality is correct, in my view.

Oh, BTW, the case is a slam dunk for rehearing en banc.

1 Comment

Going to be difficult as Harris is not a defendant. What is being challenged is the policy by the San Diego County Sheriff, not the law itself. Harris is not taking any action and can't be a party when there is no issue for the State of California, the AG, or a California statute. Remember, other Sheriffs and Police Chiefs issue CCWs without the restrictive policies that the San Diego Sheriff had. Specifically, the policy that included a "need" for the weapon. Here the Sheriff said the need had to be more than general self-defense. The law stands, but the policy is unconstitutional. Therefore Harris cannot be a party as the State of California does not issue CCWs and CCWs are issued in a Constitutional manner by other Sheriffs and Police Chiefs.

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