Another Second Amendment Appeal Crashing and Burning in 9th Circuit

I cannot remember when it was I first saw an automobile or plane crash but I’m pretty sure that my thoughts then were the same as now. “Why did this happen?”

It shouldn’t be surprising to learn that crashes are almost always a result of driver or pilot error. Mechanical error, such as a wing falling off of a plane, is rarely the cause of a crash.

When one or more lawyers file a lawsuit which purports to vindicate someone’s Second Amendment right, they can’t blame mechanical error when their lawsuit crashes and burns.

boeing 720 controlled impact demonstration.

In this latest case out of Hawaii, Baker v. Kealoha, Baker’s lawyers won’t even be able to blame the judges given that two of the three judges who will be deciding the case published a decision which would have eventually resulted in concealed carry permits becoming shall-issue had their decision not been vacated and an eleven judge panel subsequently publishing a decision which held that concealed carry is not a right. That case was out of California, Peruta v. San Diego.

When one loses an appeal to judges who are sympathetic to your case and your loss isn’t because the Constitution or prior decisions prohibit your winning but because the lawyer screws up then you blame the lawyer and no one else.

The three judges presiding over the Baker case, as I alluded to above, were the same three judges who presided over the now vacated (dead) decision in Peruta v. San Diego which would have eventually resulted in shall issue concealed carry permits (and bans on Open Carry being upheld). Last month these three judges ordered both sides in the Baker case to file a supplemental brief in light of the en banc decision in Peruta v. San Diego.

Both Sides Have Filed Their Supplemental Briefs

The lawyers for the Plaintiff Baker filed their brief which opened by saying that they believe that the en banc Peruta decision, which held that there is no right to concealed carry, is wrong. The brief then rambled on for 17 pages on things which had nothing to do with what the court ordered them to do. Five and a half pages of the brief consisted of incoherent ramblings on “dangerous and unusual” weapons from two failed machine-gun appeals in which one of Baker’s lawyers, Alan Beck, represented the plaintiffs in those cases as well.

The one sentence in the 17 page brief filed by Baker which was relevant to the Courts Order was this

“This Court’s en banc opinion in Peruta does not meaningfully impact Mr. Baker’s appeal.”

Most people don’t know to quit when they are ahead and lawyers are no exception. Instead of simply responding to the order of the court with that one, simple statement, Baker’s lawyers gave the three judge panel presiding over their appeal 17 more pages of reasons why Baker should lose.

The lawyers for the Hawaii Defendants-Appellees did not get their law degrees out of a box of Cracker Jacks and it shows in their Supplemental Brief.

Bakers quest for a concealed carry permit is now precluded by the en banc decision in Peruta v. San Diego as is it precluded for everyone who seeks a concealed carry permit anywhere within the 9th Circuit Court of Appeals.

Baker’s Lawyers Shot Themselves In The Foot

That is what Judge Callahan said during oral arguments about this case and she was a sympathetic judge.

Baker’s quest for a license to openly carry a handgun is very likely at an end as well. For one thing, Baker never applied for a license to openly carry a handgun which is something even a half competent lawyer should have noticed before filing the lawsuit. Even that serious oversight might not have been fatal if the lawsuit had plead that it would be futile for Baker to apply for a license to openly carry a firearm, which he didn’t.

And let us not forget that Baker has had over five years from the date he filed his lawsuit in which to apply for a license to openly carry a handgun.

My critics, of which Baker’s lawyer Alan Beck is one, frequently attack me personally and, of course, are dismissive of my California Open Carry lawsuit.

California’s Handgun Open Carry licenses are a small part of my lawsuit. Even though I am prohibited by statute from obtaining a license because I reside in a county with 200,000 or more people, I nonetheless asked for both an application and a license for a handgun Open Carry license and was denied both. I wasn’t denied because I failed any good cause, good moral character, or any other requirement under California law other than the City was (and is) prohibited by state law from issuing me a license.

I also pleaded in my lawsuit that it would be futile to apply for any handgun Open Carry license from any and all issuing authorities in the State of California. It wasn’t necessary for me to do so because California’s prohibition is a statutory prohibition and not a policy decision of any police chief or county sheriff but I took a belt and suspenders approach to my lawsuit.

Because Baker’s lawyers screwed up his lawsuit in so many ways, not the least in failing to establish that Baker has legal standing to seek a handgun Open Carry license, the three judges assigned to his case are most likely legally barred from issuing a decision on Hawaii’s handgun Open Carry law or the Defendant-Appellees policy in issuing these licenses.

And yet I, someone who is not a lawyer, did not make any of the numerous mistakes made by Baker’s three lawyers.

The briefs and oral arguments in Baker v. Kealoha can be found at my website here ->

My previous article on this appeal can be found here ->

Charles Nichols – President of California Right To Carry
[email protected]