We have been waiting nearly 11 months for the 9th Circuit Court of Appeals to publish its decisions in two Federal lawsuits seeking to require the County Sheriffs of San Diego and Yolo Counties to issue permits to carry concealed handguns. It took only six days for the Court of Appeals to issue its latest decision which once again held that convicted felons do not have a right to keep and bear arms.
For the sake of argument let us assume that the 9th Circuit Court of Appeals does what no other Circuit Court of Appeals has done and that is to conclude that states can ban firearms from being openly carried (Open Carry) and must allow for the carrying of concealed handguns in public. Never mind that the US Supreme Court said just the opposite, that Open Carry is the right guaranteed by the Constitution and concealed carry is not.
Not Much Of A Victory Is Even Possible
So having assumed that the plaintiffs in these cases win, it won’t be much of a victory. Even if they prevail in the Court of Appeals and win everything they asked for in the district courts, the Sheriffs will still be allowed to say when people with their permits can carry a concealed handgun, where it can be carried, what kind of handgun can be carried as well as any other restrictions on the permit the Sheriffs choose to make.
You see, the lawyers that brought the lawsuits forgot to challenge that part of the law which provides for the issuance of concealed carry permits with restrictions. If the Sheriffs want to limit persons to carrying unloaded, single-shot flintlock pistols and limit their permits to their front yards every other blue moon then they can do so.
But let us assume that they go back to Federal Court and in another five years somehow obtain a decision which requires the Sheriffs to issue unrestricted concealed carry permits.
It still won’t matter.
Local Laws Can Now Nullify Carry Permits
Thanks to a recent decision by the California Court of Appeals, cities and counties are free to enact local laws which nullify carry permits.
How did that happen you may well ask? Well, the Chairman of the Calguns Foundation (Gene Hoffman) filed a lawsuit in state court challenging a local ordinance by San Mateo County regulating the carrying of firearms in their parks and recreation areas. The laws were pretty straightforward, unless you were at one of the shooting ranges in a park or recreation area then you had to carry your firearms unloaded either openly or in a locked container when going to or from the shooting range or on a trail.
Gene Hoffman has a concealed carry permit and he wanted to wander around San Mateo County parks and recreation areas while carrying a loaded concealed handgun. So he sued the county claiming that the county ordinances are preempted by state law. Which means that, absent any restrictions listed on the permit by the county sheriff or police chief that issued the license, his permit was valid throughout the state.
Both the trial court and the court of appeals disagreed. The courts reasoned that since county sheriffs and police chiefs can place restrictions on a permit then so can local governments.
Jeopardy For Gun Owners
Anyone who has a permit to carry a firearm, loaded or unloaded, openly or concealed, must now check the local laws of every city and county he finds himself or risk arrest, prosecution fine, imprisonment and potentially his right to even possess a firearm let alone to carry one in public.
The Calguns Foundation in conjunction with the Second Amendment Foundation (SAF) jointly filed one of the two lawsuits seeking concealed carry permits in Yolo County. The lawsuit seeking concealed carry permits in San Diego County was brought by the California Rifle and Pistol Association (CRPA) which is the official state organization of the National Rifle Association (NRA).
So, even if they “win” in the court of appeals it will be a hollow victory.
Mr. Nichols lawsuit, unlike the ones brought by the NRA/CRPA/SAF/CalGuns, argues that the government can neither require a permit to openly carry a firearm in non-sensitive public places nor can it place conditions on openly carrying a firearm that county sheriffs and police chiefs will still be free to place on concealed carry permits if the so called gun-rights groups prevail.
A hearing on this motion for partial summary judgment is scheduled for December in the Federal Courthouse on Spring Street in Los Angeles.