Articles

7-30-2018 – When Will We Be Able to Openly Carry a Firearm in the 9th Circuit?

6-20-2018 – The Second Amendment is in a Coma ten years after the Heller decision

5-13-2018 – NRA Loses Fake Open Carry Lawsuit, Files Three More Concealed Carry Lawsuits

3-4-2018 – Is There a Right to Keep and Bear Arms Outside of our Home?

1-13-2018 – The Guns of February, A Story of Two Three-Judge Panels

12-13-2017 – California Open Carry Lawsuit to be Heard by 9th Circuit on February 15, 2018

11-10-2017 – The End of California Concealed Carry

10-15-2017 – Governor Brown Signs Bill Allowing Guns Inside of Gun-Free School Zones

10-12-2017 – Is There a Right to Keep and Bear Arms? 9th Circuit to Decide in 2018

9-12-2017 – NRA Open Carry Lawsuit Opposes Open Carry

9-3-2017 – Supreme Court Long Conference on September 25, 2017

8-14-2017 – A Declaration That Open Carry Is the Right

7-28-2017 – Transcript Released in NRA’s Fake Open Carry Lawsuit

7-24-2017 – 50th Anniversary of California’s Loaded Open Carry Ban

7-12-2017 – Can we Save Our Right to Keep and Bear Arms?

6-27-2017 – Supreme Court Decides to Wait for Another Second Amendment Case

6/15/2017 – The Evil Practice of Carrying Weapons Secretly

6/6/2017 – NRA Lawyer says Odds are Supreme Court will NOT take Concealed Carry Case

6/2/2017 – The NRA Lost Another Second Amendment Appeal Today

5/29/2017 – Lead Plaintiff in Supreme Court Concealed Carry Appeal says Courts are Corrupt

5/23/2017 – Peruta Concealed Carry Lawsuit has Waited 2,768 Days – Supreme Court says Wait Longer

5/20/2017 – Second Amendment Case Peruta vs. California May Strike-Out at Supreme Court

5/03/2017 – Did the NRA Take a Dive in its Fake Open Carry Lawsuit?

5/01/2017 – Supreme Court Again Silent on Second Amendment

04/22/2017 – Supreme Court Math and Concealed Carry in Peruta v. California

04/14/2017 – Federal Judge Upholds Nonexistent Gun Ban

04/12/2017 – Concealed Carry, Incest, Gay Marriage and the Supreme Court

04/05/2017 – Justice Neil Gorsuch and the Second Amendment

3/29/2017 – The Next Second Amendment Handgun Carry Case to Go Down in Flames

3/28/2017 – Federal Judge Tells NRA to Put Up or Shut Up in Open Carry Lawsuit

3/22/2017 – Supreme Court Justice Sotomayor Finally Recognizes the Second Amendment

3/13/2017 – Another Second Amendment Appeal Shot-Down by the 9th Circuit

3/10/2017 – US Supreme Court to Decide Concealed Carry Petition in Two Weeks

3/5/2017 – The Florida Supreme Court Just Handed The US Supreme Court a Second Amendment Case It Can’t Refuse

2/23/2017 – California Asks Supreme Court to Wait For Nichols v. Brown Open Carry Appeal

2/15/2017 – NRA Got Spanked for Valentine’s Day!

2/3/2017 – President Trump’s Supreme Court Nominee Neil Gorsuch

1/24/2017 -A Concealed Carry Case SCOTUS Can’t Refuse

1/23/2017 -President Trump’s Judicial Opportunity and Conundrum

1/13/2017 -NRA Tells Supreme Court Open Carry is Perverse

1/11/2017 – NRA Drops Supreme Court Concealed Carry Appeal

12/30/2016 – NRA Asks US Supreme Court To Hear Two Concealed Carry Lawsuits

12/10/2016 – National Concealed Carry Snake Oil Law Will Fail

11/29/2016 – What Lies Ahead for the Second Amendment?

11/10/2016 – The Second Amendment and President Trump

10/03/2016 – A Federal 9th Circuit Judge Finally Finds a Right to Bear Arms in Public

9/28/2016 – Are You Protected by the Fourth Amendment if You Carry a Firearm?

9/20/2016 – Two Concealed Carry Cases Fire Blanks in U.S. Court of Appeals for the District of Columbia Circuit

9/8/2016 – Another Second Amendment Appeal Crashing and Burning in 9th Circuit

8/24/2016 – Concealed Carry Snake Oil and Kool-Aid Peddlers Leave Town for DC

8/18/2016 – The NRA Files Legal Challenge To California Open Carry Bans – But Not Really

8/17/2016 – The Battle for the Second Amendment Moves to Hawaii

8/15/2016 – There is No Right to Concealed Carry – 9th Circuit Denies Full Court Petitions

8/5/2016 – Did California Lie to 11 Federal Judges in Second Amendment Lawsuits?

7/15/2016 – God Save The US From The Second Amendment Lawyers

7/8/2016 – NRA Segregation Now, Tomorrow, and Forever Position Must Fail

7/4/2016 – Try Recalling California’s Anti-Gun Politicians Before Starting Your Revolution

6/27/2016 – NRA Head Wayne LaPierre Really, Really Hates the Second Amendment

6/24/2016 – Judges Who Uphold Bans on Concealed Carry Are Not the Same as Judges Who Look the Other Way When Police Murder People in the Street

6/15/2016 – Where is the NRA’s California Open Carry Lawsuit?

6/13/2016 – What’s Next for the Right to Carry Firearms in Public?

6/8/2016 – Florida Supreme Court Justices Voice Contempt for the Second Amendment

6/5/2016 – Florida Supreme Court to Hear Second Amendment Carry Case with National Ramifications

5/17/2016 – The Second Amendment and the Concealed Carry Problem

5/11/2016 – Federal Court of Appeals Goes Berserk During Second Amendment Gun Case Hearing

5/10/2016 – California Supreme Court Shoots Itself In Foot Over Gun Case

4/25/2016 – Second Amendment Foundation Files Another Concealed Carry Lawsuit: May Backfire

4/13/2016 – Has the NRA Come to Bury the Second Amendment or to Defend It? –

4/6/2016 – Second Amendment Must Wait A Bit Longer In 9th Circuit

3/26/2016 – Concealed Carry of Concealable Firearm in a Vehicle Now a Crime of Moral Turpitude

3/21/2016 – Supreme Court decision wasn’t about stun guns – It was about the Second Amendment decision in District of Columbia v. Heller which is bad news for concealed carry

3/7/2016 – How to Stop Anti-Gun Bills in California from Becoming Law

3/3/2016 – The California Supreme Court Case Which Could Upend the Gun-Groups Concealed Carry Lawsuits

2/24/2016 – The Second Amendment – Checkmate in Four Moves?

2/10/2016 – Why California’s Waiting Period to Purchase a Firearm Will Be Upheld

2/3/2016 – Florida House of Representatives Passes Handgun Open Carry Bill

1/27/2016 – The NRA Thinks Not Getting Caught In A Lie Is The Same Thing As Telling The Truth

12/11/2015 – Why Were the San Bernardino Shooting Victims Unarmed?

11/20/2015 – Attorney Alan Gura May Have Fumbled Another Second Amendment Case

11/20/2015 – HELP WANTED: Competent Second Amendment Lawyer – Inquire Within

11/9/2015 – The Supreme Court may have Finally Found its Next Second Amendment Case

9/2/2015 – Full Derp Battle over Concealed Carry in District of Columbia

9/1/2015 – National Rifle Association Drops Lawsuit against San Francisco

8/31/2015 – The Future of the Second Amendment in California and Hawaii

8/25/2015 – Yes, America, the Second Amendment is a Universal Right!

8/14/2015 – Will this be the Supreme Court’s Next Second Amendment Case?

7/3/2015 – The Future of Open Carry in California Looks Bright

6/16/2015 – State of California Concedes Second Amendment Extends Outside the Home

6/8/2015 – The Second Amendment is Now in the Hands of these Eleven Judges

6/8/2015 – Supreme Court Won’t Hear Second Amendment Cases Until there is a Circuit Split

5/29/2015 – NRA Opposes Open Carry – NRA Now Takes Credit for New Texas Handgun Open Carry Law

5/26/2015 – Four Years Ago Today: Is Open Carry The Right Guaranteed By The Second Amendment

5/18/2015 – Why the Second Amendment Keeps Losing in Court

5/2/2015 – Black Panther Party Invades California Capitol – 48 Years Ago Today

5/1/2015 – The NRA Rearranges Deck Chairs on the Titanic

4/22/2015 – Chief Judge of 9th Circuit Court of Appeals Grants Motion of Lone Voice Defending the Second Amendment Open Carry Right

4/11/2015 – An Open Letter to the Orange County Register’s Editorial on Concealed Carry

4/03/2015 – Another Shoe Drops on the California Concealed Carry Lawsuits

2/27/2015 – Federal Judge Says No Second Amendment Right To Own Firearms

12/6/2014 – The First Shoe Drops On California Concealed Carry Lawsuits

11/30/2014 – Open Carry Gunfight At The California Corral: Start Of Year Four

11/30/2014 – California Open Carry Gunfight Begins Its Fourth Year

11/12/2014 – California Concealed Carry Permits – The Fat Lady Still Hasn’t Sung in Peruta v. San Diego

10/17/2014 – It may be Legal to Carry a Handgun in the Nation’s Capitol by Christmas

10/3/2014 – Another California Concealed Carry Lawsuit Loses before a Federal Judge

8/18/2014 – District of Columbia asks Court for More Time to Enact New Handgun Carry Ban

8/13/2014 – California Concealed Carry Case Peruta v. San Diego – Poised to Move or Stuck in the Mud?

7/30/2014 – Federal Judge Reluctantly Stays his Ruling in DC Handgun Ban

7/28/2014 – The DC Handgun Carry Decision – Throwing Victory into the Jaws of Defeat

7/26/2014 – Ban on Carrying Firearms in Public is Unconstitutional says DC Judge

7/21/2014 – The non-repeal of D.C., Gun-Control

7/2/2014 – US Supreme Court Still Silent On Second Amendment

6/28/2014 – Federal Judge Says Minorities Barred From Bringing Civil Rights Lawsuits

6/7/2014 – The NRA Supports Open Carry Except When The NRA Opposes Open Carry

6/2/2014 – NRA Lawyer Says California Concealed Carry Decision Likely To Be Overturned

6/1/2014 – NRA leadership Comes Out Of The Closet In Its Opposition To Open Carry

Please
donate $10, $25, $50 or $100 to the legal fund to restore your
right to openly carry a loaded firearm in California.

Click
here to donate to the legal fund

(Credit
or Debit cards – Visa, Mastercard, Amex, Discover or eCheck)

 

GoFundMe PayPal

Please donate $10, $25, $50 or $100 to the fight to restore your right to openly carry a loaded firearm in California.

Click here to donate.

Piryx

(Credit or Debit cards – Visa, Mastercard, Amex, Discover or eCheck)

BitCoins 1AdtAJfcdBkA777fwtVhmCwSwCKGTFrgGz Press@CaliforniaRightToCarry.org

So, When will you be able to Openly Carry a Firearm in the 9th Circuit?

Share

Well, it is already legal for you to openly carry a firearm in most of the 9th circuit except California, Hawaii and a city here and there.  For that matter, Florida, Illinois, and the District of Columbia (which are outside of the 9th circuit) are the only states with flat bans on openly carrying firearms in public, hunting, target shooting and (in Florida) fishing notwithstanding.

Some states have various restrictions, such as Oklahoma which requires a license to openly carry a handgun but those licenses are only available to residents of Oklahoma.  New York bans the Open Carry of handguns but not long guns but allows New York City to enact its own long-gun Open Carry ban, so no Open Carry in New York City.  Maryland and New Jersey don’t ban the Open Carry of long guns but allow local governments to enact their own bans so no Open Carry of a long gun in Baltimore, or pretty much anywhere in New Jersey.  Maryland and New Jersey require a license to carry a handgun openly or concealed but don’t issue many licenses because they require that the applicant show a good reason beyond a general desire to carry a handgun for self-defense.

Which brings us to the recent 9th circuit court of appeals decision in Young v. Hawaii.  It took ten years and a month, nearly to the day, for the 9th circuit court of appeals to discover what the United States Supreme Court told us in its landmark decision on the Second Amendment, District of Columbia v. Heller way back in June of 2008.  The Heller decision told us that Open Carry is the right guaranteed by the Constitution and that concealed carry is not a Second Amendment right.  Two years later, in McDonald v. Chicago, the Supreme Court held that the Second Amendment right defined in Heller applies to all state and local governments.

This long delay isn’t entirely the fault of the judges in this circuit.  Mostly, but not entirely.

The problem is that legislatures are free to enact unconstitutional laws, police are allowed to make arrests for violating unconstitutional laws, prosecutors are free to prosecute violators of unconstitutional laws, and judges are free to allow people to be convicted, fined and imprisoned for violating unconstitutional laws.

It was not always this way.  Unfortunately, in the 1960s the US Supreme Court gave qualified immunity to police, and in the 1970s gave absolute immunity to prosecutors and judges.

The only way to get around their immunity is for someone to successfully bring a lawsuit which results in the unconstitutional law being overturned.  Once the law is overturned, these folks no longer get to hide behind their court invented immunity.  Most states no longer allow private criminal prosecutions but they can be sued for monetary damages should they enforce a law which has been overturned and, of course, they could be held in contempt of court.  They know this and so an injunction, or even a declaration, is worth far more than its weight in gold.

The problem is that Federal judges cannot overturn laws on their own.  Somebody has to bring a lawsuit challenging a law for it to be overturned.

California enacted a ban on openly carrying a loaded firearm in public for the purpose of self-defense in 1967.  The NRA helped write that law and since April of 2010, the NRA has been in Federal court arguing to uphold that ban.

The NRA is not alone.  The NRA’s official state organization, the California Rifle and Pistol Association, is the plaintiff representing the NRA in its California lawsuits.  The Second Amendment Foundation (SAF) in conjunction with the CalGuns Foundation filed a separate lawsuit which also sought to uphold California’s Open Carry bans.  The Gun Owners of America/California and pretty much every so-called gun-rights group filed briefs in support of their lawsuits opposing Open Carry.

I am the first and only person challenging California’s Open Carry bans.  The NRA will tell you that it filed a lawsuit challenging California’s Open Carry bans in 2016 but what they won’t tell you is that they aren’t challenging California’s Open Carry bans.  They mention the bans in their lawsuit but none of the plaintiffs have standing to challenge the bans because they refused to articulate a plan, let alone a concrete plan, to violate the bans.  Incredibly, three of the plaintiffs, including the lead plaintiff, disavowed any desire to openly carry a firearm anywhere, let alone in violation of California’s Open Carry bans.

The NRA argues that states can ban Open Carry in favor of concealed carry and since California has banned Open Carry they are entitled to concealed carry permits.

The NRA made that very same argument in its Peruta v. San Diego concealed carry lawsuit which lost in the 9th circuit court of appeals.  The Supreme Court denied the NRA’s cert petition.

Mr. Young did not challenge Hawaii’s licensing law nor did he explicitly challenge Hawaii’s de facto Open Carry ban (Hawaii law does not prohibit him from obtaining a license, the police chief denied him a license).  Mr. Young asked for a license to carry a handgun openly or concealed.  He didn’t care which one he got, he was denied a permit to carry openly or concealed.

This was very fortunate for Mr. Young and will be for me as well in my California Open Carry lawsuit if the Young v. Hawaii decision stands.

There have been a Baker’s Dozen or more of lawsuits that I know of which were filed in the wake of the Heller decision.  All of them sought concealed carry permits.  All of them lost because contrary to the claims the so-called gun-rights lawyers made in court, the US Supreme Court did not say that states can ban Open Carry in favor of concealed carry.  The Supreme Court did not say that states can choose between Open and concealed carry.

The Supreme Court said that concealed carry is not a Second Amendment right.

The Heller decision was not the first Supreme Court decision to say this.  In 1897 the Supreme Court said that concealed carry is not a Second Amendment right and state courts have been saying that concealed carry is not a right for nearly 200 years.

Like it or not, Open Carry is and always has been the Second Amendment right.

I filed my California Open Carry lawsuit in November of 2011.  Mr. Young filed his lawsuit in June of 2012.  For a variety of reasons, including pure luck, Mr. Young’s appeal was argued and submitted for a decision three days before mine.

The 9th circuit court of appeals has a judge made rule that unless a prior decision conflicts with a Supreme Court decision, or its holding was made in passing and without serious consideration then subsequent three-judge panels of the 9th circuit court of appeals are bound by prior three-judge panel decisions until that prior decision is overturned by an en banc panel of eleven judges of the 9th circuit court of appeals, reversed by the US Supreme Court, or a subsequent decision of the Supreme Court casts doubt on that prior decision.

And so 12 days after I argued my appeal (the first time in over 20 years a non-lawyer representing himself was allowed to participate in oral argument) the submission of my appeal for a decision was vacated pending a decision in Young v. Hawaii.

The decision in Young v. Hawaii was published on July 24, 2018 at 10:00 AM.  My appeal is now once again submitted for a decision.  Moreover, the decision in my appeal will bind subsequent three-judge panels of the 9th circuit court of appeals as I just described.

On its face, the Young v. Hawaii decision entails that I win my multi-faceted Second Amendment claim and, by the State of California’s concession during my oral argument, I win my Fourth Amendment claim as well.  Open Carry will be restored to California and the police will not be given the unbridled discretion to stop you to see if you are violating a law merely because you are openly carrying a firearm.  Nor will the police be allowed to arrest you merely for asserting your Fourth Amendment right.

Mr. Young is not an attorney.  He wrote his lawsuit without an attorney and represented himself in the district court.  Because of defects in his complaint, he will not immediately get a license to openly carry a handgun in Hawaii.  If his 9th circuit decision stands then once the Mandate in his appeal is issued his case will return to the district court for further proceedings.  This is not a criticism of Mr. Young.  The courts have laid out a vast minefield designed to keep unconstitutional laws in place.

A couple of those defects are that Mr. Young did not challenge the Hawaii license requirement.  And, on appeal, “Young[‘s attorney did] not address the additional limitation in section [HRS] 134-9 providing that an open carry license may only be granted “[w]here the urgency or the need has been sufficiently indicated.”

And so there will be additional proceedings in the district court once the Mandate has issued in his case should the Young v. Hawaii decision stand.

Or the Hawaii police chief could simply give Mr. Young a license to carry a handgun, openly or concealed, and his lawsuit becomes moot (it goes away).  Anyone else in Hawaii who wants a handgun carry license would have to file a separate lawsuit should they apply for a handgun Open Carry license and be denied the license.

I suspect that the Hawaii attorney representing the chief of police does not know this given his abysmal performance in oral argument.  We can only hope that the arrogance of the left prevails over wisdom and an appeal is filed and/or the appeal is reheard en banc and the Supreme Court grants cert.

The District of Columbia was faced with the same predicament in December of 2015 when it lost an appeal involving the carrying of handguns in public.  The District was pressured by other states such as California, Maryland, New York and New Jersey not to file an appeal to the Supreme Court because a decision by the Supreme Court could knock down bans on the carrying of firearms nationwide.

Given that the Hawaii Attorney General has already said that he is going to urge the Hawaii chief of police to file an appeal (the State of Hawaii can’t file an appeal) the pressure is now on the Hawaii Police Chief.

Fortunately, I knew what I was doing when I filed my complaint in my California Open Carry lawsuit.  Forty years ago, I studied law in college and spent fourteen months studying the law again before filing my lawsuit.

Not that I had planned on representing myself.  I had not even intended in being a plaintiff in my lawsuit.  Why I wound up representing myself both in the district court and on appeal is a topic for another day but lack of money and the inability to find a competent attorney willing to challenge California’s Open Carry bans were significant factors.

Suffice it to say, there are no defects in either my Complaint or in my appellate briefs, particularly my opening brief which is the brief by which one wins or loses his appeal.

I did challenge California’s licensing laws as-applied to Open Carry but that challenge was secondary.  My primary challenge is to California’s Loaded and Unloaded Open Carry bans.  I gave the court of appeals two options when it comes to licensing.  First, I challenge the requirement that one have a license to openly carry a handgun for self-defense.  In fact, no such license exists in California if one resides in a county with a population of 200,000 or more people.  The US Supreme Court has told the lower courts that facially invalidating an unconstitutional law is preferable than a piecemeal invalidation because when a court engages in piecemeal invalidation it acts as a legislature, which is not permissible.

The US Supreme Court has also said that when a license is offered, and even if that license is not required to exercise a fundamental right (i.e., marriage) then the state cannot deny a license.  The argument I made in regards to licensing is that the court can either strike down California’s license laws in their entirety but if they don’t then they must: 1) strike down the geographic prohibitions on the license, strike down the “good cause,” and “good moral character,” requirements and all of the other ancillary statutes related to the licenses as they apply to Open Carry licenses.

And so, the three-judge panel assigned to my case can invalidate California’s two handgun licensing laws for open and concealed carry, or it can make California handgun Open Carry licenses “shall issue.”  As licensing is an alternative challenge, the court cannot escape ruling on the constitutionality of California’s Open Carry bans.

And since California’s Open Carry bans are just that, statutory bans and not a policy choice of some police chief or county sheriff, they will be overturned if the Young v. Hawaii decision stands.

The Young v. Hawaii defendants have 14 days from July 24, 2018, to file a petition for rehearing/rehearing en banc in the 9th circuit court of appeals (or a motion for an extension of time).  Likewise, they have 90 days to file their cert petition with the Supreme Court.  If the Young v. Hawaii appeal is reheard before an en banc panel of eleven judges then it will likely be two years before we have an en banc decision.

Two years from now we will have President Trumps replacements on the 9th circuit court of appeals and hopefully one or more Supreme Court justices from the left replaced.

If the Young v. Hawaii decision is reversed en banc then I likely lose my Second Amendment claim because the three-judge panel assigned to my appeal is bound by the en banc decision in Young v. Hawaii.  I will then file my en banc petition before a very different set of 9th circuit judges than would be deciding Mr. Young’s appeal if his appeal is taken en banc now.  And should my en banc petition be denied and should I have to file a cert petition with SCOTUS, I may have an even better lineup of Supreme Court justices than we have now.

In closing, I will say that I read the Young v. Hawaii decision with some amusement, and great satisfaction, given that Mr. Young’s three-judge panel of judges adopted the argument I made in my briefs and oral argument in my California Open Carry lawsuit.  My argument was, and is, that Open Carry is the right guaranteed by the Constitution and that concealed carry is not a right and can, therefore, be banned.  Not because I say so but because the US Supreme Court conducted an in-depth historical analysis of the Second Amendment in the Heller case and came to that conclusion.  In short, my argument is that the 9th circuit court of appeals is bound by the Heller decision and the McDonald decision which applied the Heller decision’s definition of the Second Amendment right to the states.  But if the court refuses to adopt the historical analysis conducted in Heller and McDonald and choose instead to engage in judicial interest balancing then strict scrutiny applies to my case because the laws I challenge are bans AND the Open Carry bans fail any level of scrutiny, including rational basis review, for the reasons I gave in my opening brief on appeal.

Mr. Young’s attorney had argued on appeal that states can choose between Open and Concealed carry but cannot ban both. The three-judge panel assigned to Mr. Young’s appeal disagreed with his argument in its decision.

I was particularly pleased to read legal arguments I made, and the cases I cited, in my briefs and other filings with the court repeated in the Young v. Hawaii decision.

The very same arguments, the very same citations.  Moreover, the Young v. Hawaii decision reads as if it were directed at the three-judge panel assigned to my appeal.

It’s nice to know that someone read my briefs.

Share