by Bill Blum
Long Beach attorney Chuck Michel has built a successful career by challenging firearms regulations – and winning.
California – -(Ammoland.com)- C.D. “Chuck” Michel won big against what he calls the “gun grabbers” last February when a three-judge panel of the Ninth U.S. Circuit Court of Appeals reversed a trial court ruling in one of the most significant Second Amendment cases of his career.
Not only did the 2-1 majority invalidate San Diego County’s restrictive policy for obtaining a concealed-carry handgun permit, it went on to declare that the personal right to keep and bear arms extends outside the home.
Michel, a Long Beach-based contract attorney for the California Rifle and Pistol Association (CRPA) – the statewide affiliate of the National Rifle Association – has been the lead plaintiffs attorney in Peruta v. San Diego (742 F.3d 1144 (9th Cir. 2014)) since April 2010. In 2011 former Solicitor General Paul D. Clement filed an amicus brief on behalf of the NRA, and he later argued the case for the appellants.
“We got everything we asked for from the court,” says Michel, who drafted the pleadings.
In a 69-page opinion, Judge Diarmuid O’Scannlain, one of the circuit’s most conservative members, crafted a meticulous analysis of the Second Amendment and pre-Civil War gun-ownership rights. He concluded that the county’s interpretation of “good cause” to obtain a concealed-carry permit – documenting circumstances showing that the applicant was uniquely in harm’s way – infringed the constitutional right to “bear Arms.”
O’Scannlain wrote, “[T]he right is, and has always been, oriented to the end of self-defense. Any contrary interpretation of the right, whether propounded in 1791 or just last week, is error.” (Peruta, 742 F.3d at 1155 (emphasis by the court).)
One other federal circuit had explicitly issued such a holding before – Moore v. Madigan (702 F.3d 933 (7th Cir. 2012)) – but not in so detailed and definitive an opinion.
From Michel’s perspective, the broad sweep of O’Scannlain’s prose also vindicated the NRA’s steady and deliberate approach to litigation. In the wake of the U.S. Supreme Court’s landmark decision recognizing an individual’s right to own firearms (District of Columbia v. Heller, 554 U.S. 570 (2008)), gun-rights groups had rushed to clarify the scope of permissible regulation. The NRA’s contentious rival – the Second Amendment Foundation in Washington state – had brought a similar challenge to concealed-carry policy in California’s Yolo County. Three weeks after the Ninth Circuit’s decision in Peruta, the same panel invalidated Yolo’s policy. But it did so in an unpublished three-page decision that cited Peruta as controlling precedent. (Richards v. Prieto, 560 Fed. Appx. 681 (9th Cir. 2014).)
When the sheriff of San Diego County declined to petition for rehearing of Peruta, others attempted to step into the breach. But in November the Ninth Circuit denied intervenor status to Attorney General Kamala D. Harris, the Brady Campaign to Prevent Gun Violence, and the California Police Chiefs and Peace Officers’ Associations. (Peruta v. County of San Diego, 771 F.3d 570 (9th Cir. 2014).) Still, Judge Sidney R. Thomas’s strong dissent in Peruta gave Michel cause for concern.
In December, two days after the Montana jurist began a seven-year term as Chief Judge, Michel’s worries were borne out: The Ninth Circuit called for briefing – due Christmas Eve – to determine whether Peruta should be reheard en banc. If review is granted, Thomas will lead a tribunal that includes ten other judges chosen at random.
No one knows, of course, how the en banc process will conclude.
“The Circuit consists of roughly two-thirds Democratic appointees and one-third Republican,” says Michel. “But judges don’t always vote along political lines. And our position is very persuasive.”
Should the respondents lose an en banc ruling, Michel promises he won’t back down. He’ll appeal Peruta all the way to the U.S. Supreme Court – very likely joined by libertarians and other advocates of individual gun rights….