On November 30, 2011, I walked into the old Federal courthouse for the Central District of California in downtown Los Angeles and filed my lawsuit to overturn California’s ban on openly carrying loaded firearms in public.
That began the first year of my California Open Carry lawsuit.
Today, November 30th, 2021, the 11th year of my California Open Carry lawsuit now begins.
Hopefully, this will be the final year of my lawsuit.
The Supreme Court will issue its opinion in NYSRPA v. Bruen by the end of next June, perhaps sooner. That will be followed closely by the decision on whether or not to grant the Young v. Hawaii cert petition. Be it granted or denied, once SCOTUS makes its decision in Young v. Hawaii, my California Open Carry Lawsuit, Charles Nichols v. Gavin Newsom et al., will once again be under submission for a decision by the three-judge panel assigned to my appeal.
Unless at least five of the nine justices adopt the “Alternate Wavelength Doctrine of Constitutional Interpretation” that was proposed by the NRA lawyer, Paul Clement, in the NYSRPA v. Bruen oral argument, the most likely outcome for NYSRPA v. Bruen is that a majority of the justices will say that the Second Amendment shields the right to Open Carry. Permits can be required for concealed carry, but New York’s “proper cause” is invalid because it gives unbridled discretion to the state officials to grant or deny concealed carry permits for whatever right to concealed carry the justices invent.
The justice who writes the majority opinion may add that “proper cause” can be required for a concealed carry permit provided that the criteria are clearly written down and those criteria do not conflict with whatever right to the contrived concealed carry right the Court invents.
It is improbable, but possible, that the majority opinion might say that states can choose between Open and Concealed carry. This is unlikely for several reasons, not the least of which New York has chosen the Open Carry of long guns without a permit over the carrying of handguns, openly or concealed.
But if SCOTUS does then the California Supreme Court has chosen the Open Carry of long guns over handguns even for persons prohibited from possessing handguns, whereas carrying a loaded concealed handgun is a crime of moral turpitude, according to the California courts, even if the handgun or other concealed weapon is carried concealed by someone who is not otherwise prohibited from possessing firearms.
A concealed carry permit is not some Medieval Indulgence of Dispensation the State sells you that wipes away all of your sins. A concealed carry permit is a defense to the crime of moral turpitude which is concealed carry.
Whatever concealed carry right the justices may invent that is protected by the Second Amendment, that won’t change the fact that concealed carry is not a right protected by the California State Constitution. The California Supreme court has held that convicted felons have a right under the California Constitution to keep and bear long guns, and they have a limited right to carry a handgun for the limited period of time when they, or someone they are protecting, has a reasonable fear of serious bodily injury.
In short, if SCOTUS says that states get to choose between concealed and Open Carry then the California Constitution has chosen the Open Carry of long guns not just for felons and persons otherwise prohibited from possessing handguns, but for all of us, and the California legislature does not have the authority to enact laws that conflict with the California Constitution.
Justice Thomas would no doubt write an opinion that mirrored the Heller opinion’s citation to Nunn v. Georgia which construed the Georgia law to be valid as it applies to prohibitions on concealed carry but invalid as it applied to the Open Carry of handguns that were not large handguns known as horseman’s pistols. That is called a narrowing construction of the law. But Justice Thomas appears to be the only Justice who prefers narrowing a construction of a law over facially invalidating a law.
But the laws at issue in both District of Columbia v. Heller and McDonald v. City of Chicago were facially invalidated without Justice Thomas advocating a narrowing construction in those cases, and so I don’t expect him to advocate for what has become a dead horse as far as the other justices are concerned.
If the NYSRPA opinion says nothing else, it will say whether or not a proper cause requirement for a concealed carry license as it was applied to the two petitioners is constitutional.
Don’t forget, I challenge California’s two handgun licensing laws in their entirety, and don’t forget that my challenge to the licensing laws is secondary to my challenges to California’s bans on openly carrying loaded, and unloaded, handguns, rifles, and shotguns for the purpose of lawful self-defense, and for other lawful purposes.
In hindsight, I am probably fortunate that my lawsuit wasn’t decided years ago.
Although there would have been an intractable circuit split between a loss in the 9th Circuit Court of Appeals, and the 7th circuit court of appeals in the Moore v. Madigan decision out of Illinois, SCOTUS did not grant any Second Amendment cert petition to decide on the merits since the McDonald opinion was published way back in June of 2010 other than NYSRPA v. New York City, which was limited to transporting, unloaded handguns in a locked container, out of New York City to a firing range outside of New York City or to a Second Home, also outside of New York City.
And that case was dismissed as moot.
Not until Justice Barrett joined the Court was any Second Amendment cert petition of any substance granted, and there has only been that one cert petition granted. Which isn’t to say that there haven’t been any Second Amendment cert petitions denied since Justice Barret joined the Court. There have been a lot of them, and all but three have been denied. One of the three was granted, NYSRPA v. Bruen, two are on hold, the handgun Open Carry cert petition out of Hawaii and the magazine ban out of New Jersey.
There have been many, many cert petitions filed and denied which argued that there are circuit splits, which is the primary reason why cert petitions are granted.
And so, as frustrating as it is for my California Open Carry lawsuit to now begin its 11th year of litigation, it is better to have taken this long than for it to have lost before the 9th circuit court of appeals, and for my cert petition to be denied as so many other Second Amendment cert petitions before it were denied.
To my financial supporters, I say this, “If it had not been for your support these past ten years then I never would have made it this far.”