In 50 years there has only been one lawsuit challenging the constitutionality of California’s ban on carrying loaded firearms in public as applied to firearms openly carried for the purpose of self-defense. Charles Nichols v. Edmund Brown, Jr., et al No.: 14-55873 which is currently being considered for oral argument before the 9th circuit court of appeals during the week of November 6, 2017.
July 28, 2017, marks the 50th anniversary of “Assembly Bill 1591 – The Mulford Act of 1967” being signed into law.
One of the new “crimes” created by the bill was a ban on openly carrying loaded firearms in public. A ban which exempted hunters.
Over the years, the California courts would interpret the ban on openly carrying loaded firearms in public to include a ban on carrying loaded handguns concealed. California had already made it a crime to carry a handgun concealed without a permit in public, most recently in 1923, a law which is still in effect today.
It was not until 2012 that the California Supreme Court “discovered” a law which had been on the books since 1872 which prohibits multiple punishments for the same act. Consequently, someone can be punished for carrying a concealed handgun without a permit regardless of whether or not the handgun is loaded or he can be punished for carrying the handgun loaded without a permit, but he can’t be punished for doing both. Permits to openly carry a handgun are not available to the general public in counties with a population of 200,000 or more people
Long guns are not concealable weapons in this state and so if one carries a loaded long gun concealed or openly he can only be punished for carrying a loaded firearm.
In 1976, the California courts decided that the exception for having a loaded firearm on one’s property did not apply to carrying a loaded firearm on one’s property.
That’s right. Under California law, a man can throw a loaded firearm outside the door or window of his home onto his private property without breaking the law. But once one so much as touches the loaded firearm, he is in violation of the law.
Welcome to California, the Land of Fruits and Nuts.
Effective January 1, 2012, it became illegal to openly carry an unloaded handgun in the same “public places.” One year later to the day it became illegal to openly carry an unloaded long gun in incorporated cities.
There was a chance that the 1967 ban might not have become law. On May 2, 1967, 30 Black men and women (members of the Black Panther Party for Self-Defense) marched into the state capitol building openly bearing arms to protest AB-1591, a law which was introduced specifically to disarm them.
Needless to say, the bill sailed through the Assembly.
However, there was still some resistance to the bill in the State Senate. The bill had sat in committee in the Senate since June 8th without any movement until the last week of July. Why didn’t the bill die in committee?
On July 23, 1967, the Detroit Riots broke out. This Nation would not see a deadlier riot until the Los Angeles Riots in 1992. The riots lasted from July 23rd to July 27th.
AB-1591 was converted to emergency legislation, meaning the law would go into effect immediately upon passage. The bill was passed by the State Senate on July 27th and presented to the governor on July 28th.
The governor signed the bill that same day.
By the way, the National Rifle Association helped write the bill and endorsed its passage.
1967 Loaded Open Carry Ban
The NRA spent the better part of this last decade defending its 1967 Loaded Open Carry ban as well as the two recently enacted bans on Unloaded Open Carry in its concealed carry lawsuit – Peruta v. San Diego, which met its demise when the US Supreme Court denied its cert petition under the name Peruta v. California.
Should you ever read the briefs filed in the Peruta case, available at my website for free, then you will notice that the NRA argued in support of California’s Gun-Free School Zone Act of 1995 in addition to arguing in support of its Loaded Open Carry ban.
You know, the law which makes it a crime to possess a handgun within 1,000 feet of a K-12 public or private school.
The NRA opposes Open Carry and the NRA supports gun-free school zones. One would think the mainstream press would jump on that story?
But that would require these reporters to expend the effort to read the NRA’s Opening Brief on appeal and reporters are nothing if not lazy.
Also, reporting the truth isn’t what reporters are paid to do. Not to mention that reporters and their news organizations oppose the Second Amendment. The NRA is the largest, most powerful proponent of anti-gun laws in this country. Why expose them?
So Called Gun-Rights Organizations
The NRA is not the only so called gun-rights organization to oppose Open Carry. The Second Amendment Foundation and the CalGuns Foundation had their own lawsuit attacking Open Carry in their quest for shall-issue concealed carry permits. That case, Richards v. Prieto, died alongside the Peruta v. California case.
And let us not forget all of the other so called gun-rights groups which filed Amicus briefs in support of Peruta/Richards quest to uphold California’s Open Carry bans.
My California Open Carry lawsuit was filed in November of 2011. If oral argument takes place in my appeal this November then November will mark my sixth year of litigation against California’s Open Carry bans, both loaded and unloaded.
Last Friday, I filed with the court of appeals a letter called a “Notice of Supplemental Authority” which included excerpts from the legislative file of AB-1591 which I obtained from the state archives and filed with the district court.
These excerpts do not paint a pretty picture of the 1967 California legislature. These excerpts present undeniable proof that the legislative motivation behind California’s 1967 Loaded Open Carry ban was animus, racial animus.
The district court judge in my case recognized that I had provided proof of animus but denied my motion for a preliminary injunction because I had not provided proof of disproportionate enforcement and because the language of the Loaded Open Carry ban is “race neutral.”
In my notice of supplemental authority filed last Friday I reminded the court of appeals that disproportionate enforcement has not been required to overturn a law if the motivation is animus and that has been the law since a US Supreme Court decision published in 1996.
In the same notice I also cited a 2013 decision of this circuit which held that “[W]here, as here, the defendant [government] is willing to harm certain similarly-situated individuals who are not members of the disfavored group in order to accomplish a discriminatory objective, while preserving the appearance of neutrality,” will not save a law from being struck down.
I won’t know which three judges are assigned to my appeal until the Monday of the week before oral argument. If no oral argument takes place then I won’t know who the judges are until the decision is posted.
Let us assume that these three judges are the most rabid haters of the Second Amendment ever to be born. My appeal has them stuck between the proverbial rock and a hard place.
Because of the way I framed my appeal these judges must decide the Second Amendment questions I presented in my appeal and they must decide if the Open Carry bans survive any level of “judicial scrutiny” including the lowest level which is most favorable to the government, rational basis review.
For me to lose my appeal then not only must my Second Amendment claims fail but the panel of judges assigned to my appeal must conclude that animus, including racial animus is a rational basis for upholding the Open Carry bans.
And I haven’t even mentioned my Fourth Amendment claim. The reason the California legislature gave for enacting the two Unloaded Open Carry bans is because the police might overreact and shoot people openly carrying unloaded firearms endangering them and innocent bystanders.
Despite what some people might think, police are prohibited by the Fourth Amendment from shooting someone for simply carrying a firearm even if that person is suspected of killing a government agent.
In short, the California legislature said it enacted the Unloaded Open Carry bans to prevent the police from breaking the law, something which the Fourth Amendment already prohibits them from doing.
If I lose before the 9th circuit court of appeals then I will have a cert petition the US Supreme Court can’t refuse.
Of course so could any of the so called gun-rights groups have made the same legal arguments in their lawsuits challenging California’s Open Carry bans.
But that would require them to support the Second Amendment Open Carry right and to file a lawsuit challenging the Open Carry bans and we all know that will never happen.
Not a single one of the so called gun-rights groups so much as filed an Amicus brief in my appeal in support of the Second Amendment.
“[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. 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. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. 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. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251…” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816
“But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws – prohibitions on concealed weapons…” Heller dissent at 2851
“We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.” McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010) at 3050.
“[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.
“Traditionally, States have imposed narrow limitations on an individual’s exercise of his right to keep and bear arms, such as prohibiting the carrying of weapons in a concealed manner or in sensitive locations, such as government buildings. Id., at 626-627; see, e.g., State v. Kerner, 181 N. C. 574, 578-579, 107 S. E. 222, 225 (1921). But these narrow restrictions neither prohibit nor broadly frustrate any individual from generally exercising his right to bear arms.” Voisine v. US, 136 S. Ct. 2272 – Supreme Court (2016) Justice Thomas dissenting.