The Future of Open Carry in California Looks Bright

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By Charles Nichols – President of California Right To Carry

On June 16, 2015 before an en banc panel of eleven judges of the 9th Circuit Court of Appeals, Circuit Judge Carlos Bea asked the California Solicitor General a yes or no question. Does the core right of the Second Amendment extend beyond the home? After hemming and hawing for a moment the Solicitor General conceded that it is difficult to read the Heller decision and come to the conclusion that the Second Amendment does not apply outside the home.

The Solicitor General added that it is crucial in this case (Peruta v. San Diego/Richards v. Prieto) to read the Heller decision to mean that there is no right to carry weapons concealed in public.

“[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

“Like most rights, the right secured by the Second Amendment is not unlimited … For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816

en banc panel
The en banc panel of eleven judges of the 9th Circuit Court of Appeals in Peruta v. San Diego/Richards v. Prieto

On November 30, 2011 I filed a Federal Civil Rights lawsuit seeking to overturn California’s 1967 ban on openly carrying loaded firearms in public. I subsequently amended my lawsuit to challenge California’s new bans on openly carrying modern, unloaded handguns and long guns in public.

Thanks to two California Appellate Court decisions which held that the private property exemption to the 1967 ban meant that one could “have” a loaded firearm on his property but not carry a loaded firearm on his property and another which held that the private property exemption might apply to some Californian’s whose private residential property was fully enclosed by a tall, sturdy fence or other significant barrier to entry by the public, all that was (and is) necessary for me to prevail in my Open Carry lawsuit is for the 9th Circuit Court of Appeals to conclude that I have the right to openly carry a loaded firearm on the doorstep of my home. Even if that loaded firearm is merely a flintlock rifle or shotgun.

The Solicitor General not only conceded that the “core right” of the Second Amendment extends to the area surrounding one’s home (the curtilage) the Solicitor General conceded that the core right of the Second Amendment extends beyond the curtilage of one’s home.

We now wait for the en banc decision in Peruta v. San Diego to be published. If the en banc decision accepts the concession by the California Solicitor General only in part, that the core right of the Second Amendment includes the curtilage of one’s home then I win my Open Carry lawsuit. I will have to file an appropriate motion but other than that, there will be no need for either me or the Governor and Attorney General to file any briefs or argue before a three judge panel, let alone an en banc panel.

On the other hand, the en banc panel in Peruta v. San Diego could reject the Solicitor General’s concession and say that the Second Amendment is limited to the inside of the home but if it extends beyond the home, there is no right to carry a concealed weapon in public. The 2nd, 3rd, and 4th Circuit Court of Appeals did this tap-dance routine and cert was denied in all three of those cases.

As anyone who bothered to read the dissent to the denial of cert in Jackson v. San Francisco well knows, the US Supreme Court will not hear a Second Amendment case until the Federal Appellate Courts (or state Supreme Courts) disagree on the Second Amendment right to the degree that it creates a split that only the US Supreme Court can resolve.

If I lose my appeal then there is a clear split between the 7th Circuit and the 9th Circuit on the Second Amendment. Do you remember that 1967 ban on openly carrying loaded firearms in public, a ban which the NRA helped write and has been defending these past five years along with the California Gun-Free School Zone Act of 1995? Well, California copied and pasted its 1967 ban from an Illinois ban the 7th Circuit struck down in 2012.

When Peruta/Richards lose their en banc appeal, there will not be a circuit split. The 7th Circuit decision in Moore v. Madigan made it perfectly clear that, as per the Heller decision, Illinois can ban concealed carry and anything that can be banned is not a right.

If SCOTUS is going to hear a Second Amendment carry case it will be an Open Carry case unless and until some Federal court of appeals or state supreme court holds that the Second Amendment guarantees a right to carry a concealed handgun in public.

Every state court and every Federal court which has had a concealed carry case come before it has held that there is no right to carry a concealed weapon under the Second Amendment whereas Federal and State Supreme Courts have held that there is a right to openly carry a firearm for the purpose of self-defense in public under the Second Amendment.

Moreover, unlike the brain-trust of Second Amendment lawyers hired by the so-called gun rights groups whose sole argument is that, contrary to longstanding precedent, states can ban Open Carry, I did not limit my lawsuit to the Second Amendment. I raised multiple challenges completely independent of the Second Amendment. And I only need to prevail with one of my challenges for me to win my California Open Carry lawsuit.

Simply put, if I lose then multiple circuit splits are created not only regarding the Second Amendment but the Fourth and Fourteenth Amendments as well.

And do you really think that even the most dyed in the wool liberal on either the 9th Circuit Court of Appeals or the US Supreme Court is going to uphold a 1967 ban on openly carrying loaded firearms which was enacted specifically to prevent Blacks and other minorities from openly carrying loaded firearms for the purpose of self-defense?