In its petition for a Full Court rehearing of the en banc concealed carry decision of Peruta v. San Diego, the NRA makes the same legal arguments that were made in support of laws prohibiting minorities from: traveling in Whites Only rail cars, drinking from Whites Only water fountains, attending Whites Only public schools and even sitting at lunch counters reserved for Whites Only. The NRA’s segregation now, segregation tomorrow, and segregation forever position must fail.
According to the National Rifle Association Petition
- THE EN BANC PANEL DECISION UNNECESSARILY INTRUDES ON THE PREROGATIVES OF THE STATE
“In sum, the majority’s decision turns an issue that could have been resolved through regulatory changes by local legislative and executive officials into one in that in all likelihood will require federal judges to strike down a state statute. Principles of federalism, separation of powers, and constitutional avoidance all caution against such an approach. It is not too late to avoid this untenable result. Full court rehearing should be granted.” NRA petition of Full Court rehearing at pages 18-19.
That “state statute” the NRA says will “in all likelihood” be struck down is California’s racially motivated ban on openly carrying loaded firearms in public which was enacted by the California legislature and which is a ban which the NRA helped write in 1967.
It had always been legal to openly carry loaded firearms in public in California for the purpose of self-defense until Black men and women began openly carrying firearms in public in the winter and spring of 1967. This annoyed many White police officers and many White politicians so they banned it. The ban included a provision allowing police officers the unbridled discretion to stop Blacks for absolutely no reason in order to inspect their firearms to see if they are unloaded which the police did until the members of the Black Panther Party for Self-Defense simply gave up openly carrying firearms. The California legislature has legalized racially motivated harassment.
The NRA Sponsored a Bill Banning Chinese and Latinos From Owning Handguns
In 1923, the California legislature passed a law prohibiting Chinese and Latinos from even possessing concealable firearms (i.e., handguns) even in their home. The NRA sponsored that bill. In 1923, Blacks were an infinitesimally small percentage of California residents. By 1967, this had changed and there is no reason to believe that the NRA would not have supported a ban on Blacks possessing handguns in 1923 as well.
My mother was of mixed White and Native American descent. Unfortunately, neither she nor half of her brothers and sisters could pass as White. Born in 1926, she spent the first few decades of her life in an America where she had to sit at the back of the bus and this was despite an Act of Congress recognizing all Native Americans as American Citizens. A law passed two years before she was born.
As the late US Supreme Court Justice Antonin Scalia explained in his landmark opinion in District of Columbia v. Heller, the Second Amendment is merely the codification of a pre-existing right which has always guaranteed the right to openly carry firearms in public. The one thing that all nine Supreme Court justices agreed upon in the Heller decision was that there is no right to carry a weapon concealed in public and that was the only thing the en banc court in Peruta v. San Diego held in its decision – There is no right to carry weapons concealed in public. The en banc court left the Second Amendment right to openly carry firearms question to be decided by some other panel of 9th Circuit judges in some other case. Barring some unforeseen circumstance that case will be mine – Charles Nichols v. Edmund Brown Jr., et al.
Shame on the NRA Lawyers
Three NRA lawyers signed the petition for rehearing the en banc Peruta v. San Diego before the Full Court (currently 26 Circuit judges).
One of those lawyers is Paul D. Clement, a former United States Solicitor General.
One would think that Mr. Clement, who graduated magna cum laude from Harvard Law School where he was the US Supreme Court editor of the Harvard Law Review would be someone well versed in the legal arguments made by those who fought to uphold racist laws and would have recognized that the petition he put his name to makes those same racist arguments again in support of California’s racially motivated gun-control laws?
Either his education was lacking or the NRA pays him well enough to look the other way.
Neither reason is a justifiable excuse.
Hopefully, a majority of the active circuit judges on the 9th Circuit Court of Appeals will be better read and recognize that the position the NRA has taken in its petition for a rehearing have long since been discredited and they will reject the petition. States and local governments do not have the “Prerogative” to ban a fundamental right, especially when that ban is racially motivated.