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California Open Carry Lawsuit - Nichols v. Brown

Open Carry

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#181 Charles Nichols


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Posted 19 July 2018 - 12:44 PM

Has anyone heard anything about this case or the Hawaii one? It seems like we should hear something sooner or later.

It is unlikely that there will be a decision in my appeal until there is a decision in Young v. Hawaii. 9th Circuit Advisory Committee Note to Rule 25-2(3) encourages the parties to a case to notify the court if the court has not issued a decision within 9 months after being taken under submission for a decision.  The three-judge panel assigned to my appeal vacated the submission of my case for a decision pending a decision in Young v. Hawaii and so that clock stopped ticking in my appeal.  Young v. Hawaii was taken under submission for a decision at the conclusion of oral argument on February 12, 2018.  If there is not a decision by November 12, 2018, then both sides are encouraged to notify the court.


I used to keep track of how long it took the 9th circuit court of appeals to render a decision in Second Amendment cases at this link.  Notably, both the presiding Judge (Ikuta) and Senior Judge O'Scannlain have both written extensive Second Amendment decisions.  It took five months and 18 days for Judge Ikuta to publish her decision in Jackson v. San Francisco.  Granted, that was the appeal of a preliminary injunction which had expedited priority.  It took eleven months and 24 days for the three-judge panel decision to be published in Peruta v. San Diego.  Judge O'Scannlain wrote that decision.  There was a dissent by Judge Thomas (now the Chief Judge) which may have delayed the time it took to be published.


The question is much simpler this time around.  If we have learned anything in the ten years since the Heller decision it is that the lower courts have almost invariably acted as if the Heller (and McDonald, and Caetano) decision never happened.  Both judges Ikuta and O'Scannlain have published decisions which conflicted with the Supreme Court decisions in Heller and McDonald.  The en banc court in Peruta took concealed carry off the table.  The threshold Second Amendment question in both my appeal and in Young is whether or not the Second Amendment extends outside the doors to our home.


If two of the three judges assigned to Young's appeal says that it does then he very likely gets his handgun Open Carry permit.


I would not be surprised if there were a decision today nor would I be surprised if there were a decision six months from now but given the narrowness of what Mr. Young can win on appeal (he is constrained by his Complaint), I would be a bit surprised if we are still waiting for a decision well into next year.


FYI, of all the appeals to be decided by Judges Ikuta, O'Scannlain and Clifton the week of February 12, 2018, four appeals (including Young v. Hawaii) are still pending a decision.

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