At 11:04:43 AM PDT on 08/24/2016 the 9th Circuit Court of Appeals issued its final mandate in a decision which held that there is no right of the general public to carry a weapon concealed in public. Absent the United States Supreme Court reversing the decision, which no rational person expects to happen, this 9th Circuit decision stands.
The 9th Circuit Court of Appeals has now joined with the 1st, 4th, 5th, 7th and 10th Circuit Court of Appeals which have rejected concealed carry appeals filed by the so called gun-rights groups attorneys in holding outright that there is no right to carry a weapon concealed in public. The rest of the Federal circuits assumed, without deciding, that concealed carry impacted the Second Amendment but upheld the restrictions/prohibitions on concealed carry. The 4th Circuit took both approaches.
The claim that concealed carry is a right under the Second Amendment has now been pronounced dead in every Federal Circuit Court of Appeals and will soon be tossed into the Potomac River. Technically, the court has already upheld criminal convictions for carrying weapons concealed in public in criminal cases. Now two civil lawsuits are going to take a stab at it.
Oral arguments have been scheduled for Tuesday, September 20, 2016, at 9:30 A.M. USCA Courtroom 31 in two appeals which seek to compel the District of Columbia to issue concealed carry permits.
One of the judges on the three judge panel joined in a decision back in 2007 which said, several times, that concealed carry is not a right – Parker v. District of Columba. That decision was affirmed by the United States Supreme Court in 2008 when it published its landmark decision – District of Columbia v. Heller. A decision which also said, several times, that there is no right to concealed carry.
Another of the three judges who will be deciding whether or not, for the purpose of a preliminary injunction, there is a right to carry a weapon concealed in public filed a dissent in Parker v. DC in which she said that there is no Second Amendment right to even own a handgun, let alone to carry one in public. Despite the subsequent US Supreme Court decision in McDonald v. City of Chicago, which overturned a citywide ban on handgun possession, she has not wavered in her opposition to the Second Amendment.
I have no idea which way the third judge on the panel will decide but based on his past decisions, it is very unlikely that he is going to join in any decision which conflicts with the Second Amendment right as defined in the Heller decision and, in any event, it only takes two judges to decide an appeal.
Do not be surprised if the decision in this case unanimously holds that there is no right to concealed carry and therefore fails the test for a preliminary injunction. And don’t be surprised if we have the decision before the end of the year. The Circuit Court of Appeals for the District of Columbia does not let appeals sit around for years waiting to be decided.
Preliminary injunctions can be appealed to the United States Supreme Court but given that the denial of preliminary injunctions which would compel the District to issue concealed carry permits would neither conflict with any Supreme Court precedent or conflict with any Federal appellate decision or state high court decision on concealed carry, there simply are no grounds, or reason, for the Supreme Court to grant the cert petitions in either of these two cases.
The landmark decision District of Columbia v. Heller which was the first in-depth examination of the Second Amendment right and which with both a broad brush and bright lines defined the Second Amendment right, relied heavily on the Parker v. DC decision which in turn relied heavily on a 5th Circuit Court of Appeals decision, US v. Emerson from 2001.
The Emerson decision was the first and only Federal Circuit at the time to publish a decision which held that the Second Amendment is an individual right unconnected with service in a militia.
The Emerson decision, citing a US Supreme Court decision from 1897, also said that there is no right to carry a weapon concealed in public.
There are certainly enough simple minded, tinfoil hat wearing fools with money enough to keep these concealed carry snake oil peddlers peddling their poison but we have long since passed the point where they are to be tolerated, let alone taken seriously. These Kool-Aid drinking cult members of the NRA, SAF, CalGuns.nuts and other groups and individuals who have supported these concealed carry lawsuits have left a scorched earth of court decisions in their wake. The decisions handed down in these concealed carry cases have made it nearly impossible to challenge any anti-gun law
They should stop filing frivolous Second Amendment lawsuits and they should get out of the way of those of use who are actually fighting for the Second Amendment. Now that the mandate has issued in the 9th Circuit against concealed carry, the fight for Open Carry now resumes with my California Open Carry Appeal.