What Lies Ahead for the Second Amendment?

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“Our Constitution was made only for a moral and religious people. It is wholly inadequate for the government of any other.” John Adams 1798

Open Carry

California: On November 9, 2016, I filed my opening brief with the 9th circuit court of appeals in my California Open Carry lawsuit, Nichols v. Brown. Unless California Governor Brown and California Attorney General Harris decide to use their one time 30 day extension of time to file their answering brief, their brief is due on December 19, 2016. My reply brief will be due two weeks later unless I use my one time 30 day extension of time to file.

Once my reply brief is filed then my appeal will be “fully briefed” which means it will be ready to be heard before a panel of 9th circuit judges. Whether or not there are three judges or eleven judges in that panel will depend upon whether or not the Court grants my petition for my case to be initially heard before an en banc (eleven judge) panel of 9th circuit active judges. My petition is due by December 19, 2016.

My appeal was filed on May 27, 2014, and has been stayed because of the NRA’s concealed carry appeal. With the death of the NRA concealed carry lawsuit in this circuit, the stay in my appeal ended when I filed my opening brief on November 9, 2016. Because appeals are prioritized based on their filing date and not on the date in which the appeal became fully briefed, my appeal will be taken under submission for a decision next year and we will very likely have a decision by the end of 2017.

The NRA, via its official state organization the California Rifle and Pistol Association, filed a frivolous “Open Carry” case in the Federal Central District of California on August 17, 2016.

Putting aside the fatally flawed Complaint which does not even claim that any of its members intend on openly carrying firearms, loaded or unloaded, the Plaintiffs seek concealed carry permits which they are not entitled to under the Peruta decision and to the extent that one can discern an Open Carry challenge, they have not properly raised the challenge and so do not have standing to challenge the California Open Carry bans.

One of their “Open Carry” challenges is to prohibit the state from issuing handgun Open Carry licenses. If they were successful, then only concealed carry permits would be available in California.

Banning Open Carry is the NRA’s definition of supporting Open Carry.

The NRA isn’t even in a hurry to get a decision in this case they can appeal. The defendants filed their expected motions to dismiss back on October 7, 2016, but the hearing on the motions to dismiss won’t be heard until February 13, 2017. After which the district court judge has four months within which to decide on the motions to dismiss, motions which will undoubtedly be granted, the NRA will have to amend its Complaint and the case starts over from the beginning.

And that assumes that the case won’t be stayed pending a decision in my California Open Carry appeal. The NRA lawsuit is Flanagan et al v. Harris et al.

Hawaii: There is a “carry case” out of Hawaii, Baker v. Kealoha, which should prove to be “interesting.” It certainly has been entertaining up to now. How many lawyers do you know say they shot themselves in the foot by filing the appeal?

It has been 60 days since the last brief was sent to the panel of judges. The three judge panel in this case (Baker) is the same three judges from the sharply divided three judge panel decision in Peruta v. San Diego/Richards v. Prieto which was vacated by an en banc panel.

This case, Baker v. Kealoha, is a textbook case of incompetence and judicial bias.

It is well established law that one cannot file a lawsuit seeking a license one was never denied unless one was prevented from applying for the license in the first place or there is some other well-plead fact that to apply would be futile.

In this case, Baker applied for a concealed carry permit. He could have applied for a handgun Open Carry license but didn’t. To make matters worse for Baker, he sought a concealed carry permit because he said he needed it for his job. A job for which he is no longer employed. This is yet another insurmountable obstacle for Baker.

This leaves the decision in the hands of two judges who would have, had it been left to them, prohibit the mere filing of an Open Carry lawsuit. If they are going to issue an injunction against anything, they are limited to striking down the laws which prohibit Baker from openly carrying a loaded firearm in public.

Which also explains why it is taking them so long to reach a decision. Should they do the unexpected and strike down Hawaii’s Open Carry ban then the decision will certainly be revisited by an en banc court.

The more likely outcome is that the Baker preliminary injunction appeal will be remanded back to the district court without the court of appeals panel either issuing an injunction or without the panel issuing instructions to the district court to issue an injunction. Baker will have to wait for a final judgment in his case to file a new appeal and by then we will have a decision in my California Open Carry appeal.

There is another carry case out of Hawaii in which one of Baker’s lawyers is the attorney of record. Young v. Hawaii is one of those cases in which the Plaintiff challenged ALL of the laws (e.g., a couple of cases filed out of New York not worth mentioning), in this case the State of Hawaii revised statutes pertaining to the possession and carrying of firearms as well as challenging Hawaii’s prohibitions on the possession of certain weapons, such as switch-blades and butterfly knives.

This appeal is so screwed-up that Mr. Young will be lucky if his case is remanded back to the district court for a do-over.

Florida: It has been 174 days since the Florida Supreme Court took the case of Dale Lee Norman v. State under submission for a decision. The Court listed this case on its “High Profile” webpage. Most of those high profile cases have been decided but the Court took a couple of years before deciding some and there are older cases still waiting for a decision.

Don’t be surprised if it is another year or two before this case is decided. If Norman loses then he can appeal the decision to the US Supreme Court. His loss would create what is known as a SCOTUS Rule 10 split which is the primary grounds for SCOTUS to grant a cert petition. And so even if Mr. Norman loses before the Florida Supreme Court, he has an excellent case to appeal to the US Supreme Court.

Idaho: This appeal is limited to the Army Corps of Engineers managed lands in Idaho. Curiously, the Obama administration lawyers did not argue that the Second Amendment is limited to the home. Instead, they argued that the Corps managed land is a “sensitive place” under the Heller decision where firearms can be banned.

The 9th Circuit has tentatively decided to schedule oral arguments for February at which time it will be President Trump’s justice department lawyers appearing on behalf of the government. And that assumes that the new lawyers aren’t instructed to drop their appeal. The case is Nesbitt v. Army Corp of Engineers.

There is another challenge to the Army Corp of Engineers ban out of the 11th circuit court of appeals which the government won in the district court but is likely to suffer a similar fate in the court of appeals, GeorgiaCarry.Org, Inc., et al v. U.S Army Corps of Engineers, et al.

California Concealed Carry

Today, the National Rifle Association sent out an alert informing the public that its concealed carry lawsuit, Peruta v. San Diego, which failed before an en banc panel of 9th circuit judges, is “Supreme Court Bound.” The NRA asked for donations to help make concealed carry shall-issue in California.

The implication of the NRA alert is that because the vacancy on the United States Supreme Court will be filled by President-Elect Donald Trump, there will be four US Supreme Court justices who will vote to grant the NRA’s cert petition and that there will be five US Supreme Court justices who will vote to overturn: two prior US Supreme Court decisions (Robertson and Baldwin) which explicitly said that concealed carry is not a right, a third US Supreme Court decision which applied the Second Amendment to the states (McDonald), a decision which explicitly said that it was the right defined in the Heller decision which applies to the states, and also overturn the most recent US Supreme Court decision (Caetano) which unanimously overturned a unanimous state high court decision from Massachusetts because the state court’s decision conflicted with the Heller decision.

The NRA also failed to mention in its alert that the US Supreme Court has turned down every single concealed carry appeal, both civil and criminal.

By the way, all nine justices on the US Supreme Court were in agreement that concealed carry is not a right when the Court issued its decision in District of Columbia v. Heller back in 2008.

There is another legal barrier to the US Supreme Court granting the NRA’s cert petition but suffice it to say that if you believe that the US Supreme Court is going to grant the NRA’s cert petition in the concealed carry appeal of Peruta v. San Diego, or that the current line-up of judges is going to reverse itself, then there are a couple of New York bridges you might be interested in buying.

National Concealed Carry Reciprocity

Presidential candidate Trump was no doubt sincere in his desire that concealed carry permits be recognized in every state but as President Trump he will soon discover, there are significant obstacles between wanting and having. One of those obstacles is insurmountable. His first significant obstacle is getting a bill passed by Congress for him to sign. Contrary to the belief of some, the US Senate did not eliminate the filibuster. Nor did the Senate eliminate the other procedural obstacles which can be raised by the Democrat opposition led by Senate minority leader Chuck Schumer of New York.

And even if the parliamentary obstacles can be overcome, there is no guarantee that a majority of senators will pass a bill, let alone a bill even making it out of committee.

But let us assume that a bill makes it through Congress and is signed by President Trump. The new law would still have to survive the inevitable court challenges and it needs only one district court judge in one of the Federal circuits to strike the law down.

That, coupled with the fact that the Congress does not have the Constitutional authority to enact a national concealed carry reciprocity law, pretty much guarantees that your concealed carry permit will remain invalid in states and localities which refuse to recognize your permit.

Supreme Court Nominees

President-elect Donald Trump has published a list of potential nominees. After the election, he said that his nominee will come from that list. However, the vetting process has not yet begun. One of the nominees on the list tweeted that neither he, nor any of the other members of the list, has been contacted by the FBI to begin the necessary background checks.

It appears that President-elect Trump, as he indicated in a speech before the election, is going to wait until he is sworn in before he begins the vetting process. That will add months to the delay in confirming his eventual nominee and pretty much guarantees that whomever he selects will not be confirmed before the end of the current Supreme Court term which in turn pretty much guarantees that no Second Amendment cert petitions, including the Peruta v. San Diego cert petition, will be granted until the new justice takes the bench.

Several more vacancies are likely to open up should President Trump be reelected. There might even be a vacancy or two in his first term. Justices Ginsburg, Breyer and Kennedy are advanced in age and Justice Thomas has statistical genetics weighing against him.

If Justice Kennedy approves of President Trump’s nominee to fill the vacancy left by the death of Justice Scalia then he may decide that now is a good time to retire. Conversely, Justices and Ginsburg will have to be carried out feet first.

Our Greatest Obstacle

Our greatest obstacle is that the so called gun-rights groups are led by immoral men. These groups need gun-control laws and the threat of new gun-control laws (real or imagined) in order to persuade gullible members of the public to open their wallets and give them money.

These are the same hollow-men who will be whispering their poison in President Trump’s ear.

President Trump assumes office on January 20, 2017. His first Second Amendment test will be what he does with the Nesbitt v. Army Corps of Engineers appeal. If his lawyers argue that the Army Corps of Engineers ban is constitutional then we have lost and the leadership of the so called gun-rights groups have won.

But only a few of you will know this because the general public does not read legal briefs or watch oral arguments.

Neither do reporters. Not that they would be inclined to report even if they did.