Good News and Bad News for the Second Amendment in California
By Charles Nichols
Today, the sixth of December 2012 the 9th Circuit Court of Appeals heard oral arguments in three separate cases.
Two from California and one from Hawaii. Ironically, parties from both sides in all three cases agree that the Second Amendment extends outside of the home. They differ on the how and where that right applies to the carrying of firearms in public.
Peruta v. San Diego
First up to bat was Peruta v. San Diego an NRA/CRPA case in which the plaintiffs are seeking a permit to carry a concealed handgun in public. The attorney for the Sheriff and County of San Diego County argued that we have a right to openly carry a firearm in public but not a right to carry a loaded handgun concealed in public. He remarked that there were "other" lawsuits challenging California's ban on openly carrying a loaded firearm in public. There is only one. That case is Nichols v. Brown and is brought by Charles Nichols, President of California Right to Carry.
The attorney for Peruta argued that the court should avoid deciding whether there is a right to carry a loaded handgun openly or concealed. He argued that the court should avoid the question entirely and simply rule that the policy of the Sheriff to limit the issuance of concealed carry permits to persons who show an extreme need was unconstitutional.
Richards v. Prieto
Next up was Richards v. Prieto where the attorney for the Sheriff and County of Yolo County argued that allowing persons to openly carry firearms in unincorporated county territory where the discharge of a firearm is not prohibited and a provision in state law which allows persons in counties with fewer than 200,000 people the theoretical possibility of obtaining a license to openly carry a loaded handgun in public does not "substantially burden" one's Second Amendment right.
He went on to say that transporting an unloaded handgun in a fully enclosed locked container in one's automobile (not the glove box) is all a Second Amendment right one's needs in public. He argued that the Second Amendment does not extend to public places including streets and sidewalks in incorporated cities and applies only to private property where the owner has given permission to openly carry an unloaded handgun.
Baker v. Kealoha
The last case to be heard was a concealed carry case out of Hawaii, Baker v. Kealoha, where the attorney for Hawaii argued that yes, the Second Amendment applies outside of the home but the state can limit that right to certain select persons such as security guards in the scope of their employment. The attorney for Baker was clearly in over his head and conceded at the end of the oral arguments that he shot himself in the foot by seeking a Preliminary Injunction at this time.
All of these arguments depend upon the outcome of a case to be heard on Monday, December 10th in the Federal Courthouse in Pasadena. Although it is the last of the four cases to be heard, it was filed first and the outcome of that case (Mehl v. Blanas) will be the one that sets the binding precedent unless it is declared moot. Mehl is a concealed carry case out of Sacramento. The one hope is that Mehl will be rendered moot because the Sheriff of Sacramento has now changed his policy to allow for the issuance of concealed carry permits by merely stating that one wants to carry for the purpose of self-defense.
Openly Carry A Knife In California
The California courts recently held that one has a right to openly carry a knife under the Second Amendment but not the right to carry a knife concealed. Judge Callahan in oral arguments asked rhetorically if one ever heard the expression about bringing a knife to a gun fight? She also asked if one was familiar with the word "carjacking?"
Two other judges sat on the three judge panel. One was O'Scannlain who authored the now vacated "substantial burden" framework which concluded that only gun laws which placed a substantial burden on one's Second Amendment right could be challenged. The other was Thomas who questioned whether the California cases should be sent back to the District Courts in light of California's newly enacted Open Carry bans.
The Overriding Question
The overriding question all three judges struggled with is how does one decide whether or not a gun law is a violation of the Second Amendment? What kind of analysis should they use?
Since all three cases are concealed carry cases, the court can simply duck the question as the 1st Circuit Court of Appeals did in Hightower v. Boston and the 4th Circuit Court of Appeals did in US v. Masciandaro. The US Supreme Court said in its landmark 2008 decision that states can ban concealed carry if they want to do so stating that Open Carry is the right guaranteed by the US Constitution.
Open Carry is the question the 9th Circuit Court of Appeals will not be able to dodge next year when Nichols v. Brown, the challenge to California's 1967 ban on openly carrying loaded firearms in public, comes before them.
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