The State of California and the National Rifle Association find themselves between a rock and a hard place. Both oppose the Second Amendment right to openly carry a firearm in public (Open Carry) for the purpose of self-defense. Both want to limit the carrying of firearms in public for the purpose of self-defense to those who have a government issued, concealed carry permission slip.
Origin of NRA Open Carry Opposition
Before I go any further, I want to take this opportunity to point out where the NRA’s position that the government can ban Open Carry in favor of concealed carry originated.
In 2009, a year after the US Supreme Court published its first, in-depth, analysis of the Second Amendment which held that Open Carry is the right guaranteed by the Constitution and which held that the 19th century prohibitions on concealed carry are constitutional, UCLA law professor Eugene Volokh published a law review article which argued in support of bans on Open Carry in favor of concealed carry.
However, in his article he also said that his personal support of concealed carry conflicts with 150 years of American precedents. Professor Volokh also wrote, in the same article:
“And if the Second Amendment is incorporated via the Fourteenth Amendment, its scope as against the states might well be properly defined with an eye towards how the right to bear arms was understood in 1868, when the concealed-carry exception was apparently firmly established.”
The following year, 2010, the US Supreme Court incorporated the Second Amendment against the states via the 14th Amendment. Whatever slim argument one might have made that there was some right to carry concealed in 1791, when the Second Amendment was enacted, became irrelevant as to the Second Amendment right which applies to the states clearly excludes any right to concealed carry beyond the very narrow exceptions to the 19th century prohibitions on concealed carry embraced by the Heller decision.
In any event, a Second Amendment Foundation (SAF) lawyer, Alan Gura, seized on Professor Volokh’s law review article and began his chant that Open Carry can be banned in favor of concealed carry even though that argument conflicts with the US Supreme Court decisions in Heller (2008) and McDonald (2010) (and Robertson (1897) and Caetano (2015)) and every other state court and Federal appellate court decision in the history of our Nation.
That was until the Florida Supreme Court, in a very narrow, sharply divided decision in 2017, said it did not care what the US Supreme Court said about Open Carry being the right guaranteed by the Constitution and then upheld that state’s Open Carry bans.
Make a note of that. The Florida Supreme Court decision in Norman v. Florida clearly acknowledged that the Supreme Court Heller decision said that Open Carry is the right guaranteed by the Constitution and said that concealed carry is not a right. Four justices of the Florida Supreme Court simply said they didn’t care what the United States Supreme Court said.
I searched two legal databases and could not find any other court decision which cited the Norman v. Florida case in the 18 months since its decision, which speaks volumes about that decision.
Given that the NRA lawyers couldn’t come up with any other argument in support of banning Open Carry in favor of concealed carry, the NRA joined Alan Gura’s #MeToo movement against Open Carry.
With that background information, let us continue.
Both the NRA and the State of California say that the government may place any manner of restrictions on the carrying of firearms, which includes banning Open Carry and which include onerous fees, training, testing, registration, etc., as well as the “time, place and manner” restrictions placed on the permit to carry a concealed handgun in public. If California wants to charge $1,000 for a concealed carry permit and limit the validity of the permit to your back porch for five minutes, once a year, the NRA is okay with that.
The only thing the NRA and the State of California disagree about is the threshold for satisfying the “good cause” requirement for being issued a permit to carry a loaded handgun, concealed in public. The NRA lawyer, Paul Clement, said during an en banc hearing of the Peruta v. San Diego concealed carry appeal (which he lost) that the government can require that “good cause” be something more than simply stating a desire to carry a concealed weapon for the purpose of self-defense.
Mr. Clement did not say what that “something more” was but he was quite clear in the NRA’s position that states can ban Open Carry, although he could not, and did not, cite any court case or other legal authority which supported the NRA’s position that Open Carry can be banned in favor of concealed carry.
In the Peruta v. San Diego appeal, the State of California conceded that there is a right to carry a loaded firearm beyond the curtilage of one’s home, but not a right to concealed carry because the US Supreme Court in its landmark decision on the Second Amendment, District of Columbia v. Heller, said that the 19th century prohibitions on concealed carry were constitutional and, of course, the Supreme Court said that Open Carry is the right guaranteed by the Second Amendment to the US Constitution.
On July 24, 2018, a three-judge panel of the 9th circuit court of appeals held that the Second Amendment guarantees the right to openly carry a loaded firearm in public for the purpose of self-defense, that case is George Young v. State of Hawaii, et al.
If the Young v. Hawaii decision stands then that decision remains binding on every Federal judge in the 9th circuit, and that includes the three-judge panel assigned to my California Open Carry appeal, Charles Nichols v. Edmund Brown Jr., et al., and that includes any three-judge panel that might be assigned to the NRA concealed carry case of Flanagan et al., v. Becerra et., al.
My Open Carry appeal, Nichols v. Brown, was filed four years before the NRA filed its appeal in its latest concealed carry lawsuit (Flanagan). My appeal has already been argued before a three-judge panel and with the decision in Young, is now once again under submission for a decision.
That means that the decision in my appeal, which is bound (in part) by the Young v. Hawaii decision, will be binding on any three-judge panel assigned to the NRA Flanagan v. Becerra concealed carry appeal.
Long story short, both the NRA and the State of California claim that Open Carry can be banned in favor of concealed carry, the NRA and California simply disagree on whether or not county sheriffs get to decide what constitutes “good cause” for a concealed carry permit.
And so last month the State of California filed a petition for the Flanagan v. Becerra appeal to be heard initially before an eleven-judge en banc panel of the 9th circuit court of appeals, bypassing a hearing before a three-judge panel.
Now, the 9th circuit court of appeals rarely grants a petition to rehear an appeal after it has been decided by a three-judge panel. In fact, the odds of the US Supreme Court granting a cert petition is far, far greater in support of granting the cert petition than are the odds are in favor of the 9th granting an en banc petition.
For a decade or more, the odds of the 9th circuit court of appeals granting a petition to initially hear an appeal before an eleven-judge en banc panel has been zero.
And so the NRA’s response to the en banc petition was:
“Accordingly, if the Court is inclined to reconsider the Young decision en banc, Appellants agree that the Court should grant initial en banc review in this case.”
But if the court denies the state’s petition then there is no way for the NRA to bypass my California Open Carry appeal, which has priority over the NRA’s latest concealed carry appeal. As such, if the petition for an initial hearing en banc is denied then:
“Appellants [the NRA plaintiffs in Flanagan] do not join or support the California Attorney General in seeking initial en banc review … “
That’s right. If the petition is granted then the NRA supports it but if the petition is denied then the NRA opposes the petition.
Yet another one of the many valid reasons to hate the NRA, its Clintonesque leaders and lawyers.
There is another anchor weighing down the chances of the state’s petition for an initial en banc hearing being granted in the Flanagan case, and that anchor is the fact that my petition for my Open Carry appeal, Nichols v. Brown, was denied.
Quoting from my Amicus brief in Flanagan v. Becerra:
“Were this Court to grant the petition for initial hearing en banc in this appeal [Flanagan v. Becerra] after denying Nichols’ petition, particularly in light of both sides opposition to Open Carry here, the impropriety of that grant could not adequately be described in words.”
I made a similar argument in my Amicus brief filed in the Peruta v. San Diego en banc rehearing. Then, as now, the NRA argued that states can ban Open Carry in favor of concealed carry and that it would be improper for the en banc court to decide the question as to whether or not there is a right to openly carry a firearm in public when both sides in the Peruta case are arguing in support of California’s Open Carry bans.
Indeed, then, as now, the only one arguing in support of Open Carry is me, Charles Nichols, the lone plaintiff in Nichols v. Brown.
Fortunately, a majority of the en banc Peruta v. San Diego judges were persuaded by my Amicus brief, which was the only one of the 25 Amicus briefs filed which supported Open Carry and which objected to only opponents of Open Carry being allowed to argue the scope of the Second Amendment right to bear arms.
The en banc Peruta v. San Diego judges limited the scope of their decision to concealed carry, which the court held is not a Second Amendment right.
And now the 9th circuit must either decide, with finality, that there is or there is not a right to bear arms in the Second Amendment as one can bear arms in only one of two ways, openly or concealed and since the US Supreme Court and this Federal circuit (the 9th) has already taken concealed carry off the table that leaves only Open Carry as the Second Amendment right.
