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California Open Carry Lawsuit - Nichols v. Brown

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#1 Charles Nichols

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Posted 17 June 2016 - 01:15 PM

My name is Charles Nichols.  I am the President of California Right To Carry, a California non-profit association of Open Carry advocates.

 

I received a Google alert that my lawsuit had been mentioned at this site and so I thought I would introduce myself and answer questions you might have about my lawsuit.

 

I don't want to get into a debate about concealed carry.  Whatever rumors you may have heard about my position on concealed carry are probably true given that I have been voicing those opinions for the past six years.

 

I am the lone plaintiff in a Federal Civil Rights lawsuit challenging:

 

1)  California's 1967 ban on openly carrying loaded firearms in public.*

2)  California's 2012 ban on openly carrying modern, unloaded handguns in public.**

3)  California's 2013 ban on openly carrying modern, unloaded long guns in public.**

4)  Two statutes of the California Penal Code which provide for the issuance of licenses to openly carry loaded handguns in counties with a population of fewer than 200,000 people.***

 

* A 1976 California appellate court decision held that one can "have" but not "carry" a loaded firearm on private property if that property falls within an incorporated city or unincorporated county territory where the discharge of a firearm is prohibited - the two areas where the 1967 ban applies.  Which translates to no carry of a loaded firearm even one inch outside your door.

 

** Exempt from the unloaded Open Carry bans are unloaded antiques as defined by Federal law.  However, California's Gun-Free School Zone Act applies to all firearms, antique and modern.  If one is within a restricted area extending 1,000 feet from a K-12 public or private school then handguns, including antiques, must be unloaded and in a fully enclosed locked containers.  The CA GFSZ "does not prohibit or limit the otherwise lawful transportation of any other firearm, other than a pistol, revolver, or other firearm capable of being concealed on the person, in accordance with state law."

 

*** According to the lawyer who has been writing California's gun-control laws for 30 years, the "Murray Bill" did not originally have a population limit for the issuance of licenses to openly carry loaded handguns.  The population limitation was added at the request of the NRA.  Nonetheless, the licenses were valid statewide until 2009 when nearly every NRA endorsed and supported legislator voted to limit the validity of the licenses to the county of issuance.  Governor Schwarzenegger signed that bill into law.

 

I had written a much longer introduction answering expected questions but there seems to be a limit to the number of lines one can include in a post and so...

 

Are there any other questions about my California Open Carry lawsuit?

 

Please forgive any typos, I have been up all night.



#2 Lou

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Posted 17 June 2016 - 01:32 PM

Welcome to Illinois Carry. As you can see we follow pending litigation very closely.

Best wishes for a courtroom victory.

People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf. -  George Orwell

A gun is like a parachute. If you need one, and don't have one, you'll probably never need one again. 


#3 Charles Nichols

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Posted 17 June 2016 - 02:06 PM

Welcome to Illinois Carry. As you can see we follow pending litigation very closely.

Best wishes for a courtroom victory.

Thank you.

 

It may take a bit for me to become familiar with this forum interface though.



#4 Lou

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Posted 17 June 2016 - 02:33 PM

Well ypu posted your into in the proper forum so you're on the right track


People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf. -  George Orwell

A gun is like a parachute. If you need one, and don't have one, you'll probably never need one again. 


#5 Patriots & Tyrants

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Posted 17 June 2016 - 02:38 PM

Welcome Sir. You should offer to do an AMA sometime over on Reddit.

#6 Charles Nichols

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Posted 17 June 2016 - 03:05 PM

Welcome Sir. You should offer to do an AMA sometime over on Reddit.

I'm going to be pretty busy this summer.  I must have my opening brief, addendum and excerpts of record ready to file on July 20th.  As you might have expected with the en banc Peruta decision, every thing I have prepared for my appeal needs to be rewritten and repackaged.  That is not a bad thing.  It is labor intensive but the en banc Peruta decision has immensely simplified my appeal.  I maintain a status page of my lawsuit at my website.  Check in on it from time to time and when you see that I have posted the phrase "My appeal is now fully briefed" remind me about the AMA -> http://blog.californ...rg/?page_id=739



#7 tkroenlein

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Posted 17 June 2016 - 03:15 PM

Thanks for the info. Looking forward to the 9th eating some crow with regards to their decision in Peruta. Sent from my iPhone using Tapatalk

#8 Charles Nichols

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Posted 17 June 2016 - 03:47 PM

Thanks for the info. Looking forward to the 9th eating some crow with regards to their decision in Peruta. Sent from my iPhone using Tapatalk

The Peruta decisions had a very strange alignment of circuit judges.  The Democrats put on their Justice Scalia hats and played the originalists and held fast to Justice Scalia's decision in Heller, whereas the Republicans wore Justice Breyer's "living document" hat and had no qualms about rewriting the Second Amendment to mean what they wanted it to mean.  It is Orwellian. 



#9 Gamma

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Posted 17 June 2016 - 04:47 PM

Are you specifically wanting "open carry", or just some form of carry to be available to you without a draconian/impossible licensing scheme for concealed carry?
Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#10 MrTriple

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Posted 17 June 2016 - 05:47 PM

I'm laughing at how wonderfully IRONIC this lawsuit is in the wake of Peruta. Even if it's not your intent (I don't believe it is) this'll nonetheless have people seriously rethinking Peruta. I wonder how quickly they'll "fall in love" with shall-issue concealed carry as a result?
"The point of [so-called "assault weapon" bans]...is not to ban firearms that are dangerous, it's to ban firearms that gun owners want to own because the people making the laws don't like gun owners. If we want to buy non-semiauto AR-style rifles, they'll ban those too, and for the same reason."

-Hapless

#11 Charles Nichols

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Posted 17 June 2016 - 05:51 PM

Are you specifically wanting "open carry", or just some form of carry to be available to you without a draconian/impossible licensing scheme for concealed carry?

My original post shows my priorities.  I want unlicensed Open Carry. I do not want concealed carry in any shape or form either personally or from a litigation standpoint.  The state's attorney tried to turn my case into a concealed carry case just after I first filed. I slapped him down hard.  He also tried to shoehorn by case into a challenge to the California Gun-Free School Zone Act of 1995 a couple of times.  I slapped him down hard then as well but in his last attempt he shot himself in the foot for the following legal-babble reason I'll give below so that you can skip it.  California does not require a license to openly carry firearms in public.  It never has.  I have challenged a permit requirement just in case the state were to enact a statewide Open Carry licensing scheme.  I have challenged all of the ancillary provisions and statutes connected to the two statutes which provide for the issuance of permits in counties with a population of fewer than 200,000 people.  If I am successful on all points then Open Carry licenses will be available to everyone who isn't a prohibited person or a minor and they will be either free or cost no more than the administrative cost of doing the background check for first time buyers or online check for those who already possess a handgun.

 

And I was smart enough to emphasize that I am only challenging the licensing statutes as they apply to Open Carry.  Ironically, under 9th Circuit binding precedent, now that the Peruta en banc court has held that there is no right to concealed carry, one could strike down the entire licensing scheme as it applies to concealed carry.  Legally, I could make that challenge in my appeal but I probably won't.  A few of my long time supporters have concealed carry permits.

 

And now for the legal-babble you can skip over if you haven't already left.

 

The state filed what is known as a Motion for Judgment on the Pleadings (MJP) which the district court granted.  Unfortunately for the state, the state's attorney made supplemental filings outside of his motion, including his last attempt to shoehorn a challenge to the CA GFSZ and a contrived challenged to my Statement of Uncontrovered Facts (SUF).  The challenge to my SUF required the district court to deny the state's MJP because an MJP cannot be granted if there are facts in dispute.  The MJP was granted.  I objected to the supplemental findings which the court overruled.  Under the Federal Rules of Civil Procedure (FRCP), which appellate judges view as more important than the Constitution for some reason, when filings are made (other than a challenge to the SUF) outside of the pleadings then the MJP is converted into a Motion for Summary Judgment (MSJ) AND the district court MUST hold a motion hearing on the newly converted MSJ.

 

The district court did not hold the hearing.

 

Instead of my appealing an MJP, I am appealing a defective MSJ.  This helps me two ways.  If I were appealing an MJP the court of appeals could contrive something which would allow it to kick my case back to the district court, which I may or may not want depending upon the SCOTUS situation at the time.  If the SCOTUS situation is favorable then I can advance my appeal of the MSJ onto SCOUTUS.  However, if the SCOTUS climate is unfavorable and the panel of judges which were assigned to my appeal is unfavorable, the court of appeals is bound by the FRCP and if I want to move my case back to the district court I can point out that I was entitled to, but denied, a motion hearing on the newly converted MSJ which the district court was required to conduct.

 

But didn't  :laugh:

 

Okay, now I am even more sleep deprived.  I might not answer any more questions for today but if I do, it is not my fault if they read like Vogon poetry.



#12 Charles Nichols

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Posted 17 June 2016 - 06:05 PM

I'm laughing at how wonderfully IRONIC this lawsuit is in the wake of Peruta. Even if it's not your intent (I don't believe it is) this'll nonetheless have people seriously rethinking Peruta. I wonder how quickly they'll "fall in love" with shall-issue concealed carry as a result?

Well, if I don't win on my challenge to the Open Carry licenses or Loaded Open Carry, the only way for me to lose on the Unloaded Open Carry is for the court of appeals to conclude that there is no right to bear arms under the Second Amendment.

 

A loss on any of the first three challenges gives me a SCOTUS Rule 10 split which the court will probably want to avoid.  It might believe that given one can't throw a rock in an inhabited area without it landing in a school zone, it will give me my first three and deny my challenge to the licensing statutes in order to avoid the split.

 

At that point it is up to the people of California.  The state will be in a similar situation to Texas before it passed its concealed carry law for handguns except California's gun-free school zones also prohibit antique handguns.

 

That leaves only the Open Carry of long guns, loaded long guns if one wishes as long guns can be legally transported through school zones (but not schools or school grounds) and the GFSZ statute doesn't care if they are loaded or unloaded.

 

We saw how quickly Texas got the Open Carry of modern handguns legalized by folks walking around with long guns.  It's up to folks in California if they want to exert similar pressure.

 

It's not my concern what Californian's do afterward should my lawsuit be successful.



#13 MrTriple

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Posted 17 June 2016 - 06:27 PM

I'm laughing at how wonderfully IRONIC this lawsuit is in the wake of Peruta. Even if it's not your intent (I don't believe it is) this'll nonetheless have people seriously rethinking Peruta. I wonder how quickly they'll "fall in love" with shall-issue concealed carry as a result?

Well, if I don't win on my challenge to the Open Carry licenses or Loaded Open Carry, the only way for me to lose on the Unloaded Open Carry is for the court of appeals to conclude that there is no right to bear arms under the Second Amendment.
 
A loss on any of the first three challenges gives me a SCOTUS Rule 10 split which the court will probably want to avoid.  It might believe that given one can't throw a rock in an inhabited area without it landing in a school zone, it will give me my first three and deny my challenge to the licensing statutes in order to avoid the split.
 
At that point it is up to the people of California.  The state will be in a similar situation to Texas before it passed its concealed carry law for handguns except California's gun-free school zones also prohibit antique handguns.
 
That leaves only the Open Carry of long guns, loaded long guns if one wishes as long guns can be legally transported through school zones (but not schools or school grounds) and the GFSZ statute doesn't care if they are loaded or unloaded.
 
We saw how quickly Texas got the Open Carry of modern handguns legalized by folks walking around with long guns.  It's up to folks in California if they want to exert similar pressure.
 
It's not my concern what Californian's do afterward should my lawsuit be successful.

I'm curious, because I thought that California outlawed open carry in the '60's, namely as a result of open carry protest actions by the Black Panthers (which racist antis used as justification for an open carry ban)?
"The point of [so-called "assault weapon" bans]...is not to ban firearms that are dangerous, it's to ban firearms that gun owners want to own because the people making the laws don't like gun owners. If we want to buy non-semiauto AR-style rifles, they'll ban those too, and for the same reason."

-Hapless

#14 Charles Nichols

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Posted 17 June 2016 - 07:12 PM

 

 

I'm laughing at how wonderfully IRONIC this lawsuit is in the wake of Peruta. Even if it's not your intent (I don't believe it is) this'll nonetheless have people seriously rethinking Peruta. I wonder how quickly they'll "fall in love" with shall-issue concealed carry as a result?

Well, if I don't win on my challenge to the Open Carry licenses or Loaded Open Carry, the only way for me to lose on the Unloaded Open Carry is for the court of appeals to conclude that there is no right to bear arms under the Second Amendment.
 
A loss on any of the first three challenges gives me a SCOTUS Rule 10 split which the court will probably want to avoid.  It might believe that given one can't throw a rock in an inhabited area without it landing in a school zone, it will give me my first three and deny my challenge to the licensing statutes in order to avoid the split.
 
At that point it is up to the people of California.  The state will be in a similar situation to Texas before it passed its concealed carry law for handguns except California's gun-free school zones also prohibit antique handguns.
 
That leaves only the Open Carry of long guns, loaded long guns if one wishes as long guns can be legally transported through school zones (but not schools or school grounds) and the GFSZ statute doesn't care if they are loaded or unloaded.
 
We saw how quickly Texas got the Open Carry of modern handguns legalized by folks walking around with long guns.  It's up to folks in California if they want to exert similar pressure.
 
It's not my concern what Californian's do afterward should my lawsuit be successful.

I'm curious, because I thought that California outlawed open carry in the '60's, namely as a result of open carry protest actions by the Black Panthers (which racist antis used as justification for an open carry ban)?

 

The California legislature in 1967 banned the Loaded Open Carry of firearms because Blacks running around with guns and confronting police (from a legal distance) and confronting local politicians annoyed a lot of White police officers and annoyed a lot of White local politicians.  What clinched the deal was 30 of the Black Panthers staging an impromptu demonstration at the state capitol with firearms (perfectly legal at the time) because they discovered that then Governor Ronald Reagan was hosting a press event on the same day that the Mulford Act of 1967 was being heard in the Assembly Public Safety Committee.  The lone Sargent of Arms barred entry to the committee building and so they delivered their protest in the main lobby which may or may not be called a rotunda.  

 

That was on May 2, 1967.  The bill was converted into "emergency legislation" (goes into effect upon passage instead of first of the year) went through five readings and, if I recall correctly was signed into law by Governor Reagan on, or around, July 22, 1967.

 

It was legal to carry matching ammunition with you and to load the firearm if one had a "reasonable" fear of serious bodily injury.  In 1981, a legislature which had a lot more Republicans in it than today, endorsed and supported by the NRA, raised the threshold for loading the firearm to "grave, immediate danger" and only for the brief interval of time between notifying the police and their arrival.

 

It is still legal to "use" a loaded firearm to defend oneself if one is in danger of serious bodily injury but it is illegal to "carry" the firearm loaded.  Those of us of a certain generation recognize that as a Catch-22.

 

By the way, one of those California legislators who voted to raise the threshold at which one can carry a loaded gun was H.L. Richardson, the Founder of the Gun Owners of America.

 

The GOA and its state organization, Gun Owners of California, filed an Amicus brief in support of the Peruta Richards concealed carry lawsuits which in turn argued to uphold California's Open Carry bans as well as supporting California's Gun-Free School Zone Act of 1995.  The overturning of which the NRA said would be drastic.

 

There are lots of so called gun-rights groups out there which claim to support Open Carry and oppose gun-free school zones when they are speaking in public but once they get into a Federal court...

 

I have now gone so long without sleep (still much to do) that I should begin to see leprechauns in 5...4...3...2...1



#15 GTX63

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Posted 17 June 2016 - 07:41 PM

Great read and California on top of it!

I'll be following your progress. Godspeed.



#16 kurt555gs

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Posted 18 June 2016 - 08:38 AM

Illinois joins California as one of only 5 states that prohibit open carry. For me the ability to open carry is THE most important 2A issue we face in this state. Best wishes and good luck. 


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Posted 18 June 2016 - 09:21 AM

Welcome to Illinois carry. Please keep us up to speed on your case. Definitely going to follow your progress.

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#18 skinnyb82

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Posted 18 June 2016 - 09:58 AM

Welcome to Illinois carry. Please keep us up to speed on your case. Definitely going to follow your progress.
KING

You give people too much credit. They live in a bubble, this won't cross their minds. It's a fact that unless an issue directly affects the overwhelming majority of Americans, then the populace will be completely ignorant as to the subject to matter (see how gays are buying guns and applying for permits in record numbers). They won't be rethinking Peruta but thinking about how to squash the argument for open carry while cramming unconstitutional legislation down the throats of Californians. I mean, look at this Gunpocalypse crap they're trying to ram through. No grandfathering, ban of all firearms with detachable mags (my Savage bolt rifle has a detachable box magazine so it's automatically an assault weapon.....uh ok), ammo crap, you name it and Newsom wants it.

The en banc court holds the Second Amendment does not protect concealed carry but left the door open to O'Scannlain's reasoning that banning UOC (or OC of any kind) while simultaneously denying carry permits because the Sheriff is in a bad mood...is, in fact, the destruction of a right. What slays me is they convene an en banc court which I believed was only to address Kamala's petition to intervene. Apparently the judges decided that they'd go after the entire panel ruling, beginning with a flawed historical analysis, then wringing its hands and saying "Well, we believe there is no right to carry concealed. Open carry MAY be protected but who knows, not gonna deal with that because Plaintiffs forfeited the pleading." Look at that moonbat court. Judge Reinhardt, enough said. Thank GOD he wasn't on the en banc court. Wish Judge Kozinski had been drawn to sit on it. His dissent would've drawn quite a bit of attention as, when he strongly believes in something, he will make it abundantly clear (as evidenced by his statement in Rowan where, in a an opinion authored by Kozinski, he unambiguously states that the defendant's counsel went above and beyond the definition of "ineffective counsel" and is so inept that he should be barred from practicing law.)

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#19 THE KING

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Posted 18 June 2016 - 10:44 AM

Skinny

Didn't expect that big of a response for welcoming someone to the forum. Hope his case goes well for him.

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#20 tkroenlein

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Posted 18 June 2016 - 01:02 PM

Skinny
Didn't expect that big of a response for welcoming someone to the forum. Hope his case goes well for him.
KING


LOL. I'm thinking skinny might have quoted the wrong post. I hope.

#21 Charles Nichols

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Posted 18 June 2016 - 05:13 PM

 

Welcome to Illinois carry. Please keep us up to speed on your case. Definitely going to follow your progress.
KING

<snip>

The en banc court holds the Second Amendment does not protect concealed carry but left the door open to O'Scannlain's reasoning that banning UOC (or OC of any kind) while simultaneously denying carry permits because the Sheriff is in a bad mood...is, in fact, the destruction of a right. What slays me is they convene an en banc court which I believed was only to address Kamala's petition to intervene. Apparently the judges decided that they'd go after the entire panel ruling, beginning with a flawed historical analysis<snip>

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The "destruction of the right" comes from the Heller decision which in turn cited State v. Reid (1840). Click on the case name and you will be taken to the full decision.  When you read the Reid decision, you will find that the Reid Court had considered the hypothetical case of Open Carry being banned but concealed carry allowed and still concluded that would be unconstitutional because it is bans on Open Carry which result in the "destruction of the right" and bans on concealed carry are perfectly constitutional. Id at 619.

 

Where did the dissent in the en banc Peruta v. San Diego decision say that the majority's decision was based on a "flawed historical analysis"?  If anything, it was the minority's historical analysis which was flawed and not just because the minority read the Reid decision to say that concealed carry fell within the scope of the right to bear arms.

 

But put aside the question of guns if you can and assume that either of the Peruta decisions had been about something you don't care in the least about.  The logic of the majority in the vacated 3 judge panel decision which was ultimately the same logic used in the minority en banc decision should terrify you.  They concede that there is no right to concealed carry and they concede that historically Open Carry is the right (which the Heller Court, after conducting an historical inquiry, said was the Second Amendment right).

 

They would destroy the Second Amendment right to openly carry firearms for the purpose of self-defense because (some) people don't like Open Carry and would prefer to carry concealed and because the police might harass people who openly carry firearms.  There are a number of ways in which the latter can be prevented, but a judge who would rewrite the constitution for any reason, let alone the frivolous reason that (some) people don't like Open Carry, should not be a judge.

 

The logic of the en banc minority should terrify you.  Under their logic, the government can ban any fundamental right in exchange for something which is not a right.  For example, and all day sucker or a shiny new nickel.

 

I would point out that our lives are also a fundamental right.  Is your life worth more than a nickel, albeit a shiny one?  Mine is. 



#22 THE KING

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Posted 18 June 2016 - 05:22 PM

Skinny
Didn't expect that big of a response for welcoming someone to the forum. Hope his case goes well for him.
KING



LOL. I'm thinking skinny might have quoted the wrong post. I hope.

Skinny
Didn't expect that big of a response for welcoming someone to the forum. Hope his case goes well for him.
KING



LOL. I'm thinking skinny might have quoted the wrong post. I hope.


I was thinking the same thing but wasn't sure.

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#23 Charles Nichols

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Posted 18 June 2016 - 06:41 PM

Illinois joins California as one of only 5 states that prohibit open carry. For me the ability to open carry is THE most important 2A issue we face in this state. Best wishes and good luck. 

Thank you, but if you factor in long guns, that number drops. For example, in 1962 South Carolina enacted its handgun ban which applies today to the Open Carry of handguns, but not long guns.  New York state does not ban the Open Carry of long guns (notwithstanding those it has banned from being possessed) and it doesn't even require a permit for them to be carried in public.  There is a provision of the NY State law which provides for the carrying of loaded antique handguns, with a permit, but the last time I checked the website of the designated state issuing authority, there was no application on the website.  Which is a de facto ban on the Open Carry of handguns in New York state (with the possible exception of unloaded antique handguns).

 

New Jersey requires a permit to carry a handgun, openly or concealed, and one can openly carry a long gun (loaded or unloaded) in public "where it is permitted."  The state statute, as far as I could determine, never defined what was meant by where it is permitted.  Were that language to be used in any other law implicating a fundamental right (and most that don't) it would be struck down for vagueness/violating due process.

 

Hawaii bans the Open Carry of long guns in public for the purpose of self-defense.  Sadly, there is a case (Young v. Hawaii) which was brought pro se by a fellow who challenged ALL of Hawaii's gun laws HRS 134.  He is now represented on appeal by a newly minted lawyer (i.e., a 3rd year law student who passed the bar exam) and that newly minted lawyer made a lot of rookie mistakes in his appeal.  Suffice it to say that the lawyer asked for the one thing that a court cannot give and that is an Order compelling that a new law be written.  You may recall that in Moore v. Madigan that the decision was stayed in order to give the State of Illinois time to write and enact a new law.  As for handguns, Hawaii provides for the issuance of either a permit to carry concealed or a permit to carry openly.  Hawaii does not issue concealed carry permits.  Hawaii does issue handgun Open Carry permits but the police chiefs have interpreted the state statute to apply only to persons employed by others (e.g., security guards).  The same lawyer in Young v. Hawaii is also a lawyer in Baker v. Kealoha.  Baker appealed the denial of a preliminary injunction which his attorney appears to have abandoned.  That case, like others (including mine) was stayed because of the Peruta appeal.  Baker's attorney said on another forum that he is going to file something (he did not say what) but for a couple of reasons, that preliminary injunction appeal gets booted back to the district court for a do-over.  Long story short, the Hawaii ban on the Open Carry of long guns and the de facto ban on the Open Carry of handguns is going to be around until the 9th Circuit recognizes Open Carry as a right AND a competent lawyer challenges the Open Carry bans.

 

Illinois - I suspect you guys know better than I do what the Open Carry situation in your state is.  What it is now isn't very important to by California Open Carry lawsuit.  What is important is your Open Carry bans (loaded and unloaded) which were struck down by the 7th Circuit in 2012.  Given that they pretty much mirrored the bans I am challenging in California, the Moore v. Madigan decision is one of the circuit splits which will result should I lose in the 9th Circuit.

 

Florida - Everybody knows that Florida bans Open Carry, both of handguns and long guns.  If you haven't heard already, the Florida ban is currently waiting for a decision by the Florida Supreme Court in Norman v. State.

 

Did I miss a statewide law banning Open Carry (with or without a permit)?  There is always going to be a city or county somewhere which has enacted its own ban.  But given that the courts are supposed to take a particularly close look at local ordinances, especially when those ordinances implicate a fundamental right, they aren't particularly relevant.

 

Edit:  I forgot to mention California.  The California ban on carrying firearms loaded, openly or concealed, applies to cities and unincorporated territory where the discharge of a firearm is prohibited.  The ban on carrying a firearm concealed, loaded or unloaded, applies statewide and by default, even in the home.  The only exceptions to the concealed carry ban are by statutory exception and judicial construction.  Keep in mind that California became a state in 1850 when nobody thought there was a right to concealed carry and concealed carry is what criminals and cowards did.  No California court or legislature has moved an inch from that.  In 2012, the California Supreme Court held that there is no right under the Second Amendment to concealed carry which would have been another SCOTUS Rule 10 split had the Peruta en banc panel concluded otherwise.  The unloaded Open Carry bans do not apply outside of incorporated cities except for the unloaded handgun ban which applies to unincorporated county territory where the discharge of a firearm is prohibited.  And neither of the unloaded Open Carry bans applies to unloaded antiques as defined under Federal law.  But given that California's Gun-Free School Zone Act of 1995 has a prohibition zone which extends 1,000 feet from every K-12 public or private school and applies to handguns, antique and modern, regardless of whether or not they are loaded then the only thing which one can safely say falls outside of California's bans on carrying firearms are unloaded antique long guns.  Coonskin caps are not required (yet) when openly carrying unloaded antique long guns.


Edited by Charles Nichols, 18 June 2016 - 06:52 PM.


#24 kwc

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Posted 18 June 2016 - 07:00 PM

What is important is your Open Carry bans (loaded and unloaded) which were struck down by the 7th Circuit in 2012.  Given that they pretty much mirrored the bans I am challenging in California, the Moore v. Madigan decision is one of the circuit splits which will result should I lose in the 9th Circuit.


I noticed you hinted at this indirectly on your web site as well. Can you cite the text in the Moore decision that strikes down the ban on open carry in Illinois? I don't recall seeing that, or perhaps I just missed it.

Edited by kwc, 18 June 2016 - 07:54 PM.

"Let us not become weary in doing good, for at the proper time we will reap a harvest if we do not give up." - Galations 6:9 (NIV)

"If you can't explain it to a six-year old, you don't understand it yourself." - Albert Einstein (paraphrased)

#25 Charles Nichols

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Posted 18 June 2016 - 07:59 PM

 

What is important is your Open Carry bans (loaded and unloaded) which were struck down by the 7th Circuit in 2012.  Given that they pretty much mirrored the bans I am challenging in California, the Moore v. Madigan decision is one of the circuit splits which will result should I lose in the 9th Circuit.


I noticed you mentioned this on your web site as well. Can you cite the text in the Moore decision that strikes down the ban on open carry in Illinois? I don't recall seeing that, or perhaps I just missed it.

 

Judge Posner, who wrote the Moore decision, is a vocal critic of the Heller decision. Nonetheless, he said:

 

" And a state may be able to require "open carry"—that is, require persons who carry a gun in public to carry it in plain view rather than concealed. See District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783..." Id at 938.

 

Judge Poser could have written that states may require that guns be carried concealed, or that states may choose between concealed and Open Carry, as per the Heller decision, but he did not.

 

There is another constitutional constraint to concealed carry overlooked by the vast majority of those who have never studied the law and by those lawyers who have filed concealed carry lawsuits and that is even if there were a right to concealed carry under the Second Amendment as that right was understood by the Framers of the Second Amendment and by those who voted to enact the Second Amendment in 1791, it is the understanding of the Second Amendment as it was understood by the Framers of the Fourteenth Amendment and those who voted that amendment into law which is controlling when state laws are at issue.  Nobody, in 1868 when the 14th Amendment was enacted, thought there was a Second Amendment right to concealed carry.

 

On a related note, even those who claim that there is a Second Amendment right to concealed carry in places like the District of Columbia, the Heller decision considered a challenge to a DC law and clearly stated that concealed carry can be banned.  Moreover, it stated that Open Carry is the right guaranteed by the Constitution.  And not forgetting that all four justices in the dissent agreed with the majority in Heller that there is no right to concealed carry, either under the Second Amendment or under the Federal common law right to carry firearms.

 

Back when the world was young and unicorns still roamed the earth, one of the law classes I took in college was taught by a cantankerous old lawyer who said that the only thing better than having one hundred years of precedents on your side is to have a recent decision affirming those binding precedents.

 

That was my guiding light throughout my California Open Carry lawsuit.  There is absolutely no Second Amendment argument made in my case which cannot be directly mapped to the Baldwin, Heller, McDonald and now Caetano decisions.

 

In my district court case, the state did not even cite the Peruta 3 judge panel decision in Peruta.  It was the district court which took it upon itself to cite the Peruta decision in issuing judgment against me.  Unfortunately for the State of California, it was given an opportunity to object to the Peruta decision being dispositive against me.  Instead the state concurred.

 

Which was yet another missed opportunity for the state's attorney to argue on appeal for my case to be remanded.  If only he had objected, instead of concurring, that the 3 judge panel decision in Peruta was dispositive in deciding my case.     :laugh:



#26 kwc

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Posted 18 June 2016 - 08:11 PM

Judge Posner, who wrote the Moore decision, is a vocal critic of the Heller decision. Nonetheless, he said:
 
" And a state may be able to require "open carry"âthat is, require persons who carry a gun in public to carry it in plain view rather than concealed. See District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783..." Id at 938.


You stated in your opening post that you don't want to get into a debate about concealed carry, so I won't go down that path.

As for the quote above from Posner, I understood he was simply observing, per Heller, that a state may require someone to carry openly if it allows carry in public at all. IMHO, Posner doesn't appear to be striking down the ban on open carry in Illinois, although many of us would be thrilled if he had done so.

Edited by kwc, 18 June 2016 - 08:13 PM.

"Let us not become weary in doing good, for at the proper time we will reap a harvest if we do not give up." - Galations 6:9 (NIV)

"If you can't explain it to a six-year old, you don't understand it yourself." - Albert Einstein (paraphrased)

#27 Charles Nichols

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Posted 18 June 2016 - 08:44 PM

 

Judge Posner, who wrote the Moore decision, is a vocal critic of the Heller decision. Nonetheless, he said:
 
" And a state may be able to require "open carry"âthat is, require persons who carry a gun in public to carry it in plain view rather than concealed. See District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783..." Id at 938.


You stated in your opening post that you don't want to get into a debate about concealed carry, so I won't go down that path.

As for the quote above from Posner, I understood he was simply observing, per Heller, that a state may require someone to carry openly if it allows carry in public at all. IMHO, Posner doesn't appear to be striking down the ban on open carry in Illinois, although many of us would be thrilled if he had done so.

 

The laws that Judge Posner struck down in 2012 applied to firearms carried openly and concealed.  There was a brief period from midnight of the day the new Illinois law was enacted until the moment that new law went into effect that afternoon/evening.  In which it was legal to carry, without a permit, a loaded or unloaded firearm, openly or concealed.  And that ability to carry would have remained had your legislature not enacted the new law.  Or at least one could not be arrested, prosecuted fined or imprisoned for violating the laws that were struck down.  I don't know if Illinois has preempted local laws or if there were any local laws in which the same conduct is prohibited. By the way, your new Open Carry ban was incorporated into a law which the NRA and your NRA state organization lobbied heavily to enact despite the protestations by the NRA that it supports Open Carry -> https://youtu.be/WqeVj7A3bwg

 

In any event, your understanding has been advanced in court time and again by the NRA and the SAF in conjunction with other organizations, and it has been rejected as a matter of law.  I'll take this opportunity to again point out that neither the majority in the vacated (dead) divided, three judge panel decision in Peruta or the minority in the en banc panel decision said that there is a right to concealed carry and none of the Circuit judges claimed that the prevailing en banc majority decision was incorrect in its historical analysis.  Instead, they claimed that the Second Amendment right, which has historically been understood to only protect Open Carry, can be tossed in the trash because (some) people today don't like Open Carry.

 

You may have noticed that the en banc minority never cited a single case which supported its conclusion that a constitutional right (open carry) can be banned in favor of something which is not a right (concealed carry).  Instead, they cited the Reid decision for the proposition that a ban on both concealed and Open Carry results in the "destruction" of the right despite the Reid Court explicitly considering the hypothetical case in which Open Carry was banned in preference to concealed carry.  The Reid Court held that in such a scenario, the right to bear arms would still be destroyed and that hypothetical law would be unconstitutional.

 

The en banc minority decision conflict with the Heller and McDonald decisions ran very, very deep.

 

The en banc court's interpretation accords with mine except that it does not recognize the travelers while on a journey exception (or any exception as it applies to the general public), an exception to the prohibition on concealed carry which was firmly established in 1868.  But as neither I nor any of the plaintiffs in the concealed carry lawsuits sought to carry concealed solely while actually on a journey, my slight quibble with the en banc decision is irrelevant.

 

Particularly so given that it is the en banc decision which is law and my opinion and fifty cents won't buy a cup of coffee.  :-)  



#28 kurt555gs

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Posted 18 June 2016 - 09:37 PM

Fifty cents at Starbucks and the 9th's en banc decision will buy the same thing.


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#29 kwc

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Posted 18 June 2016 - 10:04 PM

I don't want to get into a debate about concealed carry.


Despite your stated intentions, you seem unable to restrain yourself. ;)

The laws that Judge Posner struck down in 2012 applied to firearms carried openly and concealed.  


Thank you.

Yes--the Court held that there is a Constitutional right to bear arms outside of the home. IMHO the ruling was agnostic with respect to method. So technically, I guess you could say Posner struck down the ban on open carry, although saying he struck down the ban on public carry would be more accurate.

.

Edited by kwc, 18 June 2016 - 10:29 PM.

"Let us not become weary in doing good, for at the proper time we will reap a harvest if we do not give up." - Galations 6:9 (NIV)

"If you can't explain it to a six-year old, you don't understand it yourself." - Albert Einstein (paraphrased)

#30 Charles Nichols

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Posted 18 June 2016 - 10:49 PM

Fifty cents at Starbucks and the 9th's en banc decision will buy the same thing.

How do you figure that?*  The 9th Circuit en banc court gave me the most important thing I asked for in my motion to become an Amicus and in my Amicus brief.  The en banc court limited its holding to concealed carry.

 

I had also asked that the Peruta decision be remanded back to the district court in order to give the Peruta plaintiffs an opportunity to challenge the laws which they had argued to uphold - California's Open Carry bans as well as California's Gun-Free School Zone Act of 1995.

 

The en banc court did me a favor by publishing a decision which ended their case in this circuit.  Now the NRA will have to start from the very beginning in the unlikely event that the NRA decides to challenge California's Open Carry bans and California's GFSZ.

 

Five will get you ten that if the NRA does file such a lawsuit, it will open by saying that Open Carry can be banned and that firearms can be banned in some distance from the grounds of a K-12 public or private school but not 1,000 feet from them, or at least not 1,000 feet from all of them.

 

The NRA did the same thing with its challenge to the San Francisco magazine and ammunition ban.  The NRA said that magazines can be banned, but ten rounds is too small a limit.  The 9th Circuit court of appeals took the NRA at its word and said well, you told us that magazines can be banned and so we are upholding the SF ban.

 

* If you are referring to the concurrence which said it would apply intermediate scrutiny to the concealed carry law if it were protected under the Second Amendment, the concurrence made no mention of Open Carry.  But let us infer such an implication.  The three Open Carry bans do not have "good cause" exceptions and I wasn't so foolish to exclude that argument in my case not to mention the documented death threat against me which the Sheriffs' CCW policies in Yolo and San Diego counties recognized as "good cause" for being issued a license.

 

The fourth law I am challenging is California's handgun Open Carry licensing laws which are provisions of two CCW laws.  It's prohibition is statutory as well.  California has state preemption.  Local police chiefs and county sheriffs are prohibited from issuing their own licenses to carry (openly or concealed).  The two state licensing statutes which apply to me prohibit every sheriff and every police chief from issuing a handgun open carry license to me and to everyone else similarly situated to me who reside and work in counties with a population of more than 200,000 people.  Whereas those who are otherwise similarly situated in every other respect in the counties within which one can apply, can theoretically obtain a handgun Open Carry license.

 

For me to lose on appeal, it will be necessary for me to: 1) Thoroughly screw up my Appellant Opening Brief to such an extent that the court of appeals cannot even liberally construe a constitutional challenge or an ask for relief which it cannot give (or direct the district court to give) and 2) The 9th Circuit Court of Appeals must conclude that there is absolutely no right to carry a firearm beyond the doors of our home and 3) If the court of appeals concludes that there is a right to openly carry a firearm beyond the doors of our home for the purpose of self-defense then its prohibition on the carrying of firearms for the purpose of self-defense applies to all incorporated cities and all unincorporated county territory where the discharge of a firearm is permitted, and 4) If the 9th Circuit Court of Appeals holds that the Second Amendment applies even one inch outside of the doors to my home then there is that pesky 14th Amendment equal protection violation thingy the court will have to get around and under its own binding prior precedents (not to mention those by SCOTUS) it can't get around it.

 

For those of you who think I can't write a brief to paint the court into a corner, just read judge Otero's final judgment in my case.  According to his decision, there is no right to carry a loaded firearm outside the door of one's home, firearms and persons carrying firearms, fall completely outside the scope of the Second and Fourth Amendments, even if those firearms are carried in a place where carrying them is not prohibited.

 

There were many other conclusions he came to which conflict with SCOTUS and 9th Circuit precedent but my favorite one is that the only way for a minority to challenge these laws is for them to allege in a Complaint that the laws have been enforced against them because of their race.  For the benefit of those who are unaware, if someone, including a minority is charged with violating the criminal laws at issue in my complaint (and pretty much every law on the books) he cannot have his criminal case removed to Federal court and hasn't been able to do so since 1971.

 

That means a person who would allege that the law was enforced against him because of his race must raise that challenge in state court (the same state which passed the racist law to begin with) and if convicted, which he would be, he can only challenge his incarceration through a long, expensive Habeas petition, which must go through the state courts before it can go into the Federal courts.  And after that, he must wait until any period of probation or parole has expired before he can bring a 1983 Civil Rights challenge to the law he was convicted of violating.

 

This is why ALL of the Federal courts and not just the 9th Circuit allow one to bring pre-enforcement challenges to criminal laws.  Which means so long as they dot their 'I"s and cross their "T's correctly in their Complaint, anyone can challenge the constitutionality of a law BEFORE it has been enforced against them.

 

Besides, had judge Otero bothered to read my briefs instead of rubber-stamping the judgement written by the magistrate judge, he would have noticed that I plead that the 1967 ban was racially motivated, that it has been disproportionately enforced and that its enforcement, I alleged has injured me.

 

Our maybe judge Otero read my briefs and that is why he completely foreclosed any race based pre-enforcement challenge?   :laugh:







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