Second Amendment Must Wait Longer In 9th Circuit

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On June 26, 2008, the United States Supreme Court published a decision in District of Columbia v. Heller which held that the Second Amendment right was an individual right unconnected with service in a state militia.

Two months and eight days after that decision was published, California attorney Gary Gorski filed a Federal lawsuit on behalf of his clients seeking concealed carry permits.

The Federal district court judge ruled against him and Mr. Gorski filed notice of his appeal on August 24, 2009.  As of this writing in the afternoon of April 5, 2016, Mr. Gorski’s appeal is still stayed by the 9th Circuit Court of Appeals.

Mr. Gorski’s lawsuit is not the only Second Amendment case languishing in the 9th Circuit but his is the oldest.  These cases range from Hawaii to Idaho and most of them involve the Second Amendment right to carry firearms in public for the purpose of self-defense.

All of these cases are either stayed by an explicit order or have simply languished without movement for years.

outside the court
Outside court in San Francisco

Case in point is my Federal lawsuit which seeks to overturn California’s 1967 ban on openly carrying loaded firearms in incorporated cities and in prohibited places of unincorporated county territory which I subsequently amended to challenge California’s more recently enacted bans on openly carrying modern, unloaded firearms.

Today, the court of appeals extended the stay in my appeal, Charles Nichols v. Edmund Brown, Jr., et al, to July 20, 2016.  My lawsuit was filed in November of 2011.

The delay is ostensibly because we are waiting for an eleven judge panel (en banc panel) of the 9th Circuit Court of Appeals to issue its decision in two concealed carry cases: Peruta v. San Diego (appeal filed on 12/16/2010) which is an NRA lawsuit and Richards v. Prieto which is a lawsuit backed by the Second Amendment Foundation and the CalGuns.nuts Foundation. The Richards appeal was filed on 5/19/2011.

I am writing this on April 5, 2016.  Mr. Gorski has been waiting for a final decision in his case for six years, seven months and 12 days and there is no prospect of his case, or any other Second Amendment case either on appeal or in the district courts of the 9th Circuit, being resolved anytime soon by the Federal courts in this circuit.

However, for those of you who seek to carry a loaded handgun concealed there is the possibility that the California Supreme Court could grant your wish within 90 days or so.  On Thursday, the California Supreme Court will hear oral arguments in a case which asks whether or not it is legal to carry a loaded handgun in a container (in this particular case it was carried in a backpack) so long as the handgun is not carried concealed beneath or within the clothing a person is wearing at the time.

The question before the California Supreme Court isn’t a Second Amendment question.  The California Supreme Court has already held in a post Heller decision that there is no Second Amendment right to carry a weapon concealed in public.  A California Supreme Court decision which cited the Heller decision in support of its decision because the US Supreme Court in its Heller decision said that there is no right to carry a weapon concealed in public.  Amazing how that works.

The question before the California high court is simply whether or not on/upon the person” includes a container carried by a person or whether it is limited to the clothing a person is wearing.

Unlike the Federal courts, the California Supreme Court has a 90 day deadline to issue its decision.

The irony is that most, if not all, of the concealed carry lawsuits which seek a permit to carry a loaded handgun concealed will likely collapse without a Federal Court decision because the 9th Circuit Court of Appeals will dismiss the appeals as “moot” if Wade prevails before the California Supreme Court.  This is particularly true of the Peruta/Richards cases which are holding up every other Second Amendment case, including mine. Even though my case is an Open Carry case which the Supreme Court in Heller said:

“[A] right to carry arms openly: ‘This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.'”  District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809

The stay in my California Open Carry appeal expires 19 days after the deadline for the California Supreme Court to come to its decision in the People v. Wade case, which is 106 days from today.  Given that the last stay in my case was issued for 60 days and happened before the California Supreme Court scheduled oral arguments in the Wade case, it is not unreasonable to conclude that California Supreme Court deciding to schedule oral arguments when it did had an effect on the duration of my new stay.

Particularly so, given I’m the one who told the 9th Circuit Court of Appeals about oral arguments being scheduled in the Wade case, the 90 day deadline within which the California Supreme Court must issue its decision and, significantly, the likelihood that the decision by the California Supreme Court could moot the Peruta/Richards appeals.