Four years ago this month, November 30, 2011 to be precise, I filed a Federal Civil Rights lawsuit in the Federal Central District Court of California which seeks to strike down California’s 1967 ban on openly carrying loaded firearms in public for the purpose of self-defense.
My decision to challenge California’s ban on openly carrying loaded firearms in public was not some spur of the moment decision on my part. It all began more than a year earlier in 2010. I had asked the National Rifle Association, the Second Amendment Foundation, the CalGuns Foundation, the Gun Owners of California/America, The Mountain States Legal Foundation, the National Association of Gun Rights and prominent lawyers from both Conservative and Libertarian organizations both before and after filing my lawsuit to represent me or to at least assist me in my lawsuit.
Not a single one of them was interested. Instead, they all threw their support in favor of challenges to concealed carry laws in California and in other states.
They lost them all.
The reason they lost, from a legal perspective, is because there has never been either a state or Federal court which has held there is a right to carry a weapon concealed under the Second Amendment. More to the point, state courts have explicitly held that there is no right to carry weapons concealed since 1831 and state courts have upheld prohibitions on concealed carry dating back over 200 years.
In 1897, the US Supreme Court likewise said “[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Although the Second Amendment was not at issue in that case, it was in 2008 when the Supreme Court published its first in-depth analysis of the Second Amendment in which it emphasized that:
“[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.'”
Lest there be any confusion, “secret advantages and unmanly assassinations” refers to concealed carry and went on to say in its 2008 decision that:
“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.”
The Supreme Court cited two ante-bellum state court cases which it said “perfectly captured” the meaning of the Second Amendment right to keep and bear arms. Both held that Open Carry is the right guaranteed by the Second Amendment and held that concealed carry is not a right and can therefore be banned.
In the late 1970s, when I studied law in college, my professor said that the only thing better than 100 years of precedent supporting your case is a recent appellate decision affirming those 100 years of precedent. When it comes to prohibitions on concealed carry, there are nearly 200 years of precedent. When it comes to prohibitions on the use of concealed weapons, we have precedents going back over 300 years which held that the use of concealed weapons was murder when they were used in circumstances were the death of one’s opponent would otherwise be manslaughter, such as in mutual combat.
In 2010, the United States Supreme Court again affirmed what it had said in 1897 and again in 2008 by not simply saying that the Second Amendment applies to all states and local governments but by explicitly holding that all states and local governments were bound by its definition of the Second Amendment from its decision in 2008.
Back in the day when I studied law there was an old adage that went “Lawyers are doctors who weren’t smart enough to get into medical school.”
The meaning of that may be lost on today’s generation but simply put it means that lawyers aren’t very smart but they nonetheless think of themselves as gods.
The Second Amendment lawyers perfectly fit that old adage. Their incompetence is exceeded only by their arrogance.
This shouldn’t be surprising. There aren’t very many competent lawyers out there. The competent ones tend to gravitate to lawsuits where there is a multi-million dollar payday waiting for them, leaving a large pool of unqualified ambulance chasers for the rest of us who don’t have deep pockets.
There is no “payday” waiting for me should I prevail in my California Open Carry lawsuit. I am not an attorney and therefore I am not entitled to attorney fees and since California does not allow persons who aren’t attorneys to hire paralegals pretty much the only costs of my lawsuit I will be able to recoup are 9 cents per page of the briefs I filed in the district court, but only for a single copy of those briefs, and partial reimbursement for postage.
By comparison, NRA lawyer Paul Clement, who bills his clients around $1,300 an hour will get paid by the NRA when he loses.
It is very likely that I will win my California Open Carry lawsuit in the 9^th Circuit Court of Appeals. The defendants in my lawsuit, Governor Brown and Attorney General Harris, have taken the position these last four years that there is no right under the Second Amendment for us to so much as step one foot outside of our homes with a loaded firearm. For that matter, the defendants have not even conceded that there is a right to even possess a loaded firearm in one’s home, let alone carry it in one’s home.
This June, before an eleven judge panel of the 9^th Circuit Court of Appeals the California Solicitor General finally conceded that not only is there a Second Amendment right to openly carry a firearm beyond the curtilage of one’s home, he said it is impossible to read the US Supreme Court’s 2008 decision in District of Columbia v. Heller to say that the Open Carry right doesn’t extend to public places. The solicitor general was careful to point out that the Second Amendment right does not extend to concealed carry in public.
I am now waiting for the 9th Circuit to publish its opinion in that case. If the 9th Circuit accepts the concession of the California Solicitor General and says so in its decision then my appeal can be won by filing an appropriate motion.
If the 9th Circuit Court of Appeals simply says that there is no right to carry a weapon concealed in public and leaves it at that then my appeal will go on for a few more years.
My case could have already been before the US Supreme Court by now. Unfortunately the NRA asked the court of appeals to stay the appeal of my preliminary injunction and it was stayed, by an assistant clerk.
Appeals of a preliminary injunction are given priority status. Now that there has been a final judgment from the district court in my case, the appeal of my preliminary injunction is now moot and I have to wait in line with all of the other civil cases. Fortunately, appeals of civil cases are heard in numerical order by the district they were filed in.
Regardless of what the 9th Circuit Court of Appeals says in the concealed carry cases pending before it, once the decision in the Peruta v. San Diego concealed carry lawsuit is released, my California Open Carry appeal moves to the head of the line.
We can only hope that happens before we lose one or more of the justices of the Supreme Court who gave the Second Amendment back to us. The Second Amendment was restored with a single vote in both 2008 and 2010.
We are one heart attack or retirement away from losing that 5-4 majority. When that majority is lost then the Second Amendment window closes.
And when that happens, you’ll have the so called gun-rights groups to blame for attacking the Second Amendment instead of defending it in Federal Court.