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    Categories: Legal

Federal Judge Tells NRA to Put Up or Shut Up in Open Carry Lawsuit

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Federal Judge John A. Kronstadt has set a deadline of 11:59 PM, May 1st, 2017, for the NRA to amend its lawsuit seeking concealed carry permits to challenge California’s bans on openly carrying firearms in public for self-defense.

After the NRA’s loss last year before an en banc panel of the 9th circuit court of appeals in the case of Peruta v. San Diego which held that there is no right to concealed carry under the Second Amendment, the NRA filed another lawsuit in Federal court which argued that people have a right to carry firearms in public in some manner and since California has banned Open Carry, the Los Angeles County Sheriff must issue concealed carry permits.

Federal Judge Kronstadt soundly rejected the NRA’s argument and dismissed the case with prejudice against the Los Angeles County Sheriff and dismissed with prejudice the argument made by the NRA that a ban on Open Carry creates an entitlement for concealed carry permits.

The only thing the NRA will be allowed to challenge in its amended complaint is California’s Open Carry bans.

Judge John a Kronstadt.

And as proof that the gods have a twisted sense of humor, the NRA deadline for filing its amended complaint is one minute before the 50th anniversary of the Black Panther demonstration at the California State Capitol in which 30 of its members openly carried firearms into the State Capitol building (which was legal at the time) in protest of a bill which was being heard in committee that day which was explicitly written to prohibit them from openly carrying firearm in public.

The National Rifle Association not only endorsed the 1967 California Open Carry ban, the NRA helped write the ban.

The NRA has been in Federal court for the better part of a decade in the Peruta case arguing to uphold that ban as well as arguing to uphold the California Gun-Free School Zone Act of 1995, the overturning of which the NRA said would be “drastic.”

You won’t read about that in the mainstream press but you can read the NRA briefs at my website.

It has been over 30 days since Judge Kronstadt dismissed the NRA lawsuit. The NRA still has not filed its amended complaint.

Tick tock.

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The NRA filed a cert petition in the Peruta v. San Diego concealed carry lawsuit on the very last day before its deadline to file its petition with SCOTUS. That petition is scheduled for the SCOTUS conference of March 31, 2017. Nobody believes that the US Supreme Court will grant the petition except for a few folks who have imbibed the NRA Kool-Aid.

Frankly, I don’t think the NRA lawyers are capable of challenging California’s Open Carry bans even if they wanted to. In its lawsuit before Judge Kronstadt, Flanagan et al v. Harris et al (now v. Becerra) the NRA purported to challenge California’s Open Carry bans but the NRA failed to allege any challenge to California’s Open Carry bans in its now dismissed complaint.

The courts do not require one to break a law in order to challenge a law but the 9th circuit has a fairly high pleading threshold in order to establish standing to challenge a law. One cannot simply say that a law is unconstitutional, no matter how obvious, and expect the law to be overturned.

At a minimum, the plaintiffs challenging a law must articulate a concrete plan to break the law and that concrete plan must be independent of the actions of a third party.

In its now dismissed complaint, not a single one of the plaintiffs articulated a concrete plan to so much as step one inch outside the door of his home while openly carrying a loaded or unloaded firearm in violation of California’s Open Carry bans.

As such, even if Judge Kronstadt had not dismissed the NRA lawsuit now, the lawsuit would have been dismissed on appeal for lack of standing.

As I said, I don’t think the NRA lawyers are either capable or willing to file a lawsuit challenging California’s Open Carry bans.

Given that the NRA has supported California’s Open Carry ban going back nearly 50 years, if I were Judge Kronstadt I would question whether or not the NRA or its official state organization the California Rifle and Pistol Association even has standing to challenge the bans.

Charles Nichols: Charles Nichols is the president of California Right To Carry, in Redondo Beach California, a proponent of open carry. Charles follows court cases relating to The Second Amendment and tells us what they really mean.