Sheriff, I Think It’s Time

Eric Andersen Eric Andersen 19 Comments

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If I could have one wish it would be that our lives were more peaceful and less politicized.

In order for peace to become a reality we must have a law system that allows persons with different beliefs about government and religion to live side by side.  I am not aware of a better blueprint for this than the ideas codified in the Declaration of Independence and the U.S. Constitution.  I think the wisdom of Jefferson shined most brilliantly when he penned these seven words.

“ . . . the Laws of Nature and Nature’s God”

In seven words he aggregates the essence of some of our greatest political thinkers, from Cicero to Locke, from Augustine to Blackstone on the role of law and government in a free society. In seven words he establishes the legal foundation for believer and unbeliever to coexist in peace under an ethic that transcends them both.

What the nonbeliever observes in nature the believer sees specifically revealed in his/her Bible . . . all men are created equal (rule of law, limited government, freedom) and property rights (8th Commandment – one of God’s “Top 10”).

It is therefore paramount in a county that truly desires peace that their top law enforcement, or “peace” officer, understand the significance of these ideas and have a deep and unwavering commitment to upholding and defending such. Thus the reason for the oath we ask each of our electeds to take.  It is vital that our chief peace officer model submission to higher law in the same manner he wishes those in his jurisdiction to emulate.

It is for this reason that I expressed my disappointment in Sheriff Gore’s refusal to submit to the 9th Circuit Court ruling codifying the constitutionality and natural right of every San Diego County resident to carry a concealed weapon.  I expressed my disappointment on December 3rd before the County Board of Supervisors and I do so again here.

Commentary Before Board of Supervisors 

It is for this reason that I also express my disappointment in our Sheriff for continuing to expend tax payer dollars to challenge our natural rights as he did with another appeal on December 23rd. (Author removed previous clause assigning culpability to Board of Supervisors as this expenditure came from the Sheriff’s budget without oversight from the Board)

In a conversation on Sunday, May 4th from my home, the Sheriff expressed to me privately what he had expressed publicly, that when the 9th Circuit Court ruling was handed down he would “uphold and defend” it.

On November 12th the 9th Circuit Court of Appeals rejected an appeal from State Attorney General Kamala Harris for standing.  He now has the legal guidance he requested. There is no possibility he will be prosecuted for issuing more permits using self-defense as “good cause”.

Our Sheriff stated that San Diego isn’t a rural county like most of the counties in California who take self-defense as good cause. I believe he is mistaken on a fundamental point regarding law. Our natural rights are not a function of the county in which we reside.  They were determined before the county came into existence.

The Orange County Sheriff had an identical policy on concealed carry permits and is now “upholding and defending” this right as a result of the Peruta decision.  Our Sheriff has not.

Concealed carry permits are a subset of a more important discussion. What place are we assigning the great ideas of Jefferson, Madison et al? Have we progressed beyond their wisdom?  To our County Board of Supervisors and to our Sheriff I say be an example.  Be an inspiring example.  The blueprint created by men much wiser than ourselves is still a lock to produce a peace and prosperity beyond our best laid plans.   “If not us then who?  If not now, then when?”  I think it’s time.

*****

Eric Andersen is a member of Gun Owners of California, former Rock Church Citizen of the Year and serves as a member of the Central Committee in the 71st Assembly District for the San Diego County Republican Party.  He is also a Co-Founder of the San Diego County Republican Liberty Caucus and im2moro.com.  

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Comments 19

  1. I would ask Sheriff Gore to state the basis of his belief that, somehow, citizens of what he defines as “rural” counties have greater rights under the 2nd Amendment to the U.S. Constitution than do citizens of San Diego County. Even if the population density of the county had any relevance, which it does not, a great part of San Diego County is rural. What about the rights of the citizens who do not live in the urban parts of the County? In fact, Gore does not believe that legally armed citizens pose a threat to public safety. He knows that they do not. Criminals do not get carry permits. His opposition to citizens carrying firearms stems from his belief that only the police should have guns at all. Fortunately, the Constitution guarantees all citizens that right with the conditions mentioned by the U.S. Supreme Court in the Kelly case. As the Court found in Peruta, it is constitutionally untenable for the sheriff in each of California’s 58 counties to be a “king” with total discretion to grant or deny a carry permit application. At least, if Gore is not going to follow Peruta, he should be honest about his reasons.

  2. The 9th Circuit Court of Appeals like every other inferior Federal Court is bound by US Supreme Court decisions. Three times the US Supreme Court has said that concealed carry is not a right. The NRA lawyers argued before the Peruta Court that California can ban Open Carry if it wants to and, unsurprisingly, argued to uphold the 1967 ban on openly carrying loaded firearms the NRA helped write.

    We should know by the end of this month whether or not the two judge Peruta decision will be reheard by an en banc eleven judge panel of active judges on the 9th Circuit Court of Appeals.

    Peruta’s lawyer thinks that the odds are two to one that he will lose before an en banc panel. He also seems to think that when he does the US Supreme Court will hear his case despite the fact that SCOTUS has turned down every concealed carry cert petition.

    If the Peruta decision is upheld then it creates a split with every single Federal Circuit and every single state court which have held for nearly 200 years that there is no right to carry a weapon concealed. A Circuit split of this magnitude would likely persuade SCOTUS to hear the case but as Peruta’s lawyer has said, he is likely to lose. At which point the Peruta decision becomes yet another in a line of concealed carry cases which were denied cert by SCOTUS.

  3. Charles Nichols,

    How can both these statements be true?

    “US Supreme Court has said that concealed carry is not a right”
    “that SCOTUS has turned down every concealed carry cert petition.”

    I’m interested to see if you can produce a Supreme Court decision that ruled individuals have no right to bear arms. Can you?

    This case is about concealed carry. Not open carry. What Gore’s policy results in is no carry at all.
    Which makes this statement misleading at best.
    “NRA lawyers argued before the Peruta Court that California can ban Open Carry if it wants to”.

  4. Steve Kane, I had lunch with Gore before he was elected years ago. He was very honest with me on why he doesn’t want to issue. His personal opinion, the one he expressed to me that day, was that he doesn’t want citizens to carry guns. He couldn’t explain why law-abiding, trained gun owners shouldn’t be allowed to carry their firearms, but he wants to limit it to law enforcement and military.

  5. Michael A. Schwartz,

    It is sad that so many people have opinions which are different from US Supreme Court decisions and yet insist that their opinions are the same as what the High Court decided.

    Case in point is concealed carry. In 2008, the US Supreme Court held in District of Columbia v. Heller, 128 S. Ct. 2783 “that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.””

    SCOTUS also held that “Like most rights, the right secured by the Second Amendment is not unlimited…For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”

    The Court in McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 – Supreme Court (2010) held that “the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.” You should note that the Court said “the Second Amendment right recognized in Heller.” Whatever arguments folks might have on the meaning of the Second Amendment, the lower courts are bound by the Heller decision.

    Not only did the Heller Court not recognize a right to carry concealed, the Court said that concealed carry falls outside the scope of the Second Amendment just as SCOTUS did over a century before in Robertson v. Baldwin 165 U.S. 275 (1897).

    That is three US Supreme Court decisions against concealed carry. There was only one state court decision which held that concealed carry is a right. That early 19th century case was invalidated when the State of Kentucky changed its Constitution to allow for concealed carry to be banned.

    The NRA lawyers in Peruta v. San Diego did argue that California can ban Open Carry if it wants to. Perhaps you should read their briefs and the transcripts of the hearings before characterizing factual, provable statements as “misleading.”

    The briefs can be found at the website of Peruta’s lawyer here -> http://michellawyers.com/guncasetracker/perutavsandiego/

    If you haven’t heard about the concealed carry cases denied cert by SCOTUS try Googling: Kachalsky v. Cacace, Drake v. Filko, Woollard v. Gallagher, and NRA v. McCraw. There are many others but these are the ones brought by the NRA and SAF.

    And lets not hear anything from you about Drake and Woollard not being “concealed carry” cases. Alan Gura argued in these two cases (as he did in Kachalsky) that states can ban Open Carry even though the permits did not differentiate between concealed and open carry.

  6. Suggestion that the guy from Gun Owners of CA in San Diego and the guy from California Right To Carry have a discussion, a potential meeting of the minds. May we connect you?

  7. Thor’s Assistant:

    Not necessary, the head of Gun Owners of California has my email address.

    GOC/GOA filed an Amicus brief in support of Peruta v. San Diego, a case which argued that states can ban Open Carry.

    And yet the silence has been deafening when it comes to the GOC/GOA support of my lawsuit to overturn California’s loaded and unloaded Open Carry bans.

    GOC/GOA could have filed their own Open Carry lawsuit if they didn’t like mine, instead they chose to support a lawsuit arguing that states can ban Open Carry.

    Whatever the GOC/GOA might tell its membership about supporting Open Carry, they opposed Open Carry where it counts the most (Federal court).

  8. Charles Nichols,
    Aren’t those quotes from Heller dicta and not the holding of the case? As I recall those passages you quote are from the lengthy historical analysis of the Second Amendment not from that portion of the opinion that decided the issue in Heller. I don’t think Heller decided concealed carry or open carry. It wasn’t a case about the right to bear arms it was about the right to keep them. Heller was a narrow decision on possession inside the home. McDonald was the same and applied the Second Amendment to the states.

    What is the name and case number of your own case? Is it in state or federal court? I’d like to look it up.

  9. Post
    Author

    Note: I removed the paragraph assigning culpability to the Board of Supervisors for allowing tax payer funds to be expended on yet another “legal” challenge.

    Per Dianne Jacob’s office, this expenditure was from the Sheriff’s budget and monies from it are spent without BOS oversight. My error and my apologies to the Board of Supervisors.

  10. Eric, I am not refuting what you are said or did. I understand you are trying to be completely accurate and truthful.

    But for the Supervisor’s office to say there is no oversight? Both the Sheriff’s budget and the County Council’s budget come from the Board of Supervisors.

  11. Dave Rankin:

    District of Columbia v. Heller was about the definition of the Second Amendment. Was it a law which applied only to militias or did it guarantee to the individual the right to keep and bear arms for the purpose of self-defense?

    Having decided that the Second Amendment right to keep and bear arms is an individual right, the Heller Court then turned its sight on whether or not the challenged law was constitutional.

    Note, the “two cases” (Chandler and Nunn) which held that Open Carry is the right guaranteed by the Constitution and that concealed carry can be banned are the two cases which the Heller Court said “perfectly” capture the meaning of the individual Second Amendment right unconnected by the Militia clause. Note also that the Heller dissent also interpreted (twice) the majority decision to mean that concealed carry can be banned.

    And so “No” it was not “dicta” in the sense that must people understand the term (obiter or orbiter). For a real world definition of “dicta” in a Second Amendment case which is straight on point, read Peterson v. Martinez, 707 F. 3d 1197 – Court of Appeals, 10th Circuit (2013).

    In the 9th Circuit case of US v. Vongxay, the court made the distinction between orbiter/orbitor dicta which Vongxay had argued that felon in possession “dicta” in Heller was and “meaningful dicta.”

    My case does not turn on whether or not Heller’s citation to Chandler and Nunn are “dicta” under any definition. The 9th Circuit adopted a 2nd Amendment framework within which to evaluate 2nd Amendment cases (US v. Chovan) which is the same framework the 7th Circuit used to overturn identically worded bans to the ones I am challenging with the added bonus that the Illinois bans, unlike California’s bans, did not apply to one’s home.

    Everything one could possibly care to know about my lawsuit can be found at my website -> http://CaliforniaRightToCarry.org

  12. Post
    Author

    Mike, I understand your point and those were my initial thoughts as well. What I subsequently learned was that expenditure never came before the Board for approval nor did it need to.

    So my present understanding is that while the Supvs approve the Sheriff’s budget they don’t supervise transactions from such.

    If anyone is concerned that there aren’t an adequate number of officers or with their pay perhaps they could start by looking at what Gore is choosing to spend on this issue from his budget.

  13. If you oversee a budget and someone was using that money to do something you do not agree with and it was brought to your attention in the news, on blogs, and in person at a meeting…would you do something about it?

    What is really being asked is do Supervisors Jacob, Roberts, Horn, and Cox each support the anti-gun agenda of Sheriff Gore and County Council?

    They don’t seem to be discouraging it.

  14. Wow. Who wrote my last comment? A grammatical nightmare.

    Everyone, please go back and read my comment using an “is” everywhere there is a “was”. Can I get away with blaming this on autocorrect? More importantly….is it autocorrect? Or was it?

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