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9th Circuit to Decide Right to Carry Handgun Concealed in Public

9th Circuit Court of Appeals in San Francisco

This Thursday, the 9th Circuit Court of Appeals in San Francisco will hear oral arguments in three separate cases where the plaintiffs claim that the US Supreme Court really didn't mean it when it said that weapons had to be carried openly in public.

Quoting from the landmark 2008 US Supreme Court decision on the Second Amendment: "[T]he Louisiana Supreme Court held that citizens had 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."

If that wasn't clear enough, the High Court explicitly stated "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose...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."

California's Licensing Scheme

Two of the cases to be heard on Thursday challenge California's licensing scheme which leaves it to local police chiefs and county sheriffs to decide whether or not to issue a permit to carry a concealed handgun in public. The third case is out of Hawaii and likewise challenges that state's similar discretionary licensing scheme.

All three cases are brought by opponents of Open Carry. Notably, the Second Amendment Foundation (SAF), the National Rifle Association (NRA) through its state organization the California Rifle & Pistol Association (CRPA), the CalGuns Foundation and Christopher Baker of Hawaii Concealed Carry.

States Can Ban Open Carry

The lawyer for SAF/CalGuns is Alan Gura who has already lost two cases before the Federal 1st and 2nd Circuit Courts of Appeal. His argument in support of concealed carry varies depending upon which Federal Appellate Court he is arguing before and whether he is appearing as the attorney for a plaintiff or as an Amicus. His one constant theme is that states can ban Open Carry.

The NRA/CRPA attorney, Chuck Michel, in his briefs before the 9th Circuit Court of Appeals argues that if the court does not force California to issue concealed carry permits then it will result in the overturning of California's 1967 ban on openly carrying a loaded firearm, as well as California's 1967 Gun Free School Zone ban. In his opening brief, Chuck Michel says that would be "drastic."

The NRA endorsed the ban on openly carrying loaded firearms in 1967 and is now arguing to uphold that ban today. Something the NRA fails to mention to its members when asking for donations to defend Open Carry.

4th Lawsuit Seeking Permit to Carry Handgun Concealed

The NRA will be hearing a 4th lawsuit seeking a permit to carry a handgun concealed the following week in its Pasadena Courthouse.

At last count, there were around ten lawsuits seeking concealed carry permits pending before the 9th Circuit Court of Appeals. There is only one lawsuit seeking to overturn California's 1967 ban on openly carrying loaded firearms in public. That lawsuit was brought by Charles Nichols, President of California Right to Carry. The Chief Magistrate Judge for the Federal Central District of California filed a report with the Federal District Court Judge assigned to his case recommending that the motion to dismiss by Attorney General Kamala Harris be denied. AG Harris has until Tuesday to file an objection.

Regardless of the outcome before the District Court judge, the Open Carry lawsuit is ultimately going to be decided on appeal.

Which Has The Stronger Case?

The Open Carry lawsuit which argues that the US Supreme Court meant exactly what it said in that Open Carry is the right guaranteed by the Constitution and that concealed carry can be prohibited or the Concealed Carry lawsuits which argue that the US Supreme Court was just kidding when it said that people who carry weapons concealed do so for "secret advantages and unmanly assassinations?"

Before the current 9th Circuit Court of Appeals term ends next June we will have that answer after which it will be up to the US Supreme Court to weigh in on whether its 2008 and 2010 decisions on the Second Amendment were written in jest.

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