The 9th Circuit Court of Appeals left the proverbial lump of coal in the stocking of California Attorney General Kamala Harris when it held that the burden of proof is on the government to prove that a challenged gun-control law does not burden conduct that falls within the scope of the Second Amendment as it was understood by the Framers when it was adopted in 1791.
A little over two years ago, I filed a Federal Civil Rights lawsuit seeking to overturn a ban on openly carrying loaded firearms in public. I subsequently amended my lawsuit to challenge the two recently enacted bans on openly carrying unloaded firearms in public. From the first day my lawsuit was filed, I have included a challenge to California’s ban on openly carrying loaded firearms independent of the Second Amendment. The ban was enacted in 1967 because minorities, particularly Blacks, had begun to defend their rights by openly bearing arms during the civil rights movement. There had been many race riots beginning in 1958.
By “The Long Hot Summer of 1967” race riots had reached their peak. Coincidentally, just as this ban was being signed into law, then President Johnson formed a commission to determine why there were so many race riots in America. Anyone alive today who is old enough to remember President Johnson knows the answer to that question but that is a topic for another time.
After the Los Angeles Watts’ Riot of 1965, two Black men formed the Black Panther Party for Self-Defense in Oakland California. On several occasions they and their supporters confronted police and government officials while openly bearing arms. These confrontations were never violent but that didn’t matter. After thirty or so members of the Black Panther Party staged an impromptu demonstration in the halls of the State Capitol Building in Sacramento, to protest a law which was specifically intended to disarm them, the California legislature overwhelming enacted a ban on openly carrying loaded firearms in public as well as a ban on the possession of firearms by the public in the State Capitol and on the grounds of the State Capitol. This wasn’t the first California gun-control law which was race based.
The California Uniform Crime Act of 1923 which criminalized the carrying of concealed weapons without a permit was explicitly enacted to disarm Latinos and Chinese (Blacks were a miniscule minority in 1923 California). The intent of the 1923 legislation was that minorities would not be issued permits whereas Whites would. The 1923 law went as far as to prohibit persons not born in this country from even possessing handguns, even in their home. That particular provision of the law was upheld by the California Supreme Court in 1924 when it affirmed the conviction of an Hispanic man for carrying a concealed pistol.
The ban on the mere possession of handguns by persons not born in this country was struck down as unconstitutional in 1972. According to the United States Supreme Court, if a law that is “race neutral” in its wording but racial discrimination was a substantial or motivating factor in enacting the law, and if the law has been disproportionately enforced against minorities then the law is unconstitutional. Race was the sole motivating factor in enacting the 1967 ban on carrying loaded firearms in public.
By a three to one margin, the 1967 ban on carrying loaded firearms in public is, and has been, disproportionately enforced against minorities. So what was California Attorney General Kamala Harris to do in the face of a law, the sole motivating factor of which was to disarm minorities, coupled with a recent 9th Circuit Court of Appeals decision requiring her to defend the Constitutionality of the law based upon the Framer’s intent when the Second Amendment was adopted in 1791? Her bizarre solution was to claim this in her opposition to my motion to overturn this racist law: “the Founding Fathers championed the Second Amendment…to try to legitimize Southern citizen “slave patrols” that terrorized enslaved African-Americans, and thereby to entice Southern states to support the U.S. Constitution.” That’s right, California Attorney General Kamala Harris, who is herself Black, is arguing that a racist gun-control law enacted in 1967 is Constitutional because the Second Amendment intent in 1791 was racist, thereby condoning a racist law enacted in 1967 and therefore the ban is Constitutional. You won’t read about this in the establishment press. In their eyes, Attorney General Harris can neither do nor say anything wrong.
In this particular case not only is Attorney General Harris wrong but her claim is so obviously insane it is reminiscent of the double-speak that used to come out of the former Soviet Union. Fortunately, it will be up to the 9th Circuit Court of Appeals and possibly even the United States Supreme Court to decide the case, not the liberal establishment press. I have no doubt that the district court will embrace Attorney General Harris’ argument hook, line and sinker. That doesn’t matter, I have always told my supporters that my case will be won or lost on appeal. With the number of Federal district court judges we have in this country, there will always be one to embrace some lunatic, legal argument. That is why we have courts of appeal.