On June 16, 2015, California Solicitor General Edward C. DuMont appeared before an en banc panel of eleven judges of the 9th Circuit Court of Appeals and reluctantly conceded that the Second Amendment does apply beyond the curtilage of one’s home into public places. But only if the firearms are openly carried, as per the US Supreme Court decision in District of Columbia v. Heller which said that Open Carry is the right guaranteed by the Constitution and which also said that concealed carry is not a right and can therefore be banned.
Nearly one year to the day later, on June 9, 2016, that same en banc panel of eleven judges published a decision which held, as per the Heller decision, that there is no right to carry a handgun concealed in public. Given that the plaintiffs in the two cases which were before the court argued that states can ban firearms from being openly carried for the purpose of self-defense in public and sought concealed carry permits, the seven judge majority said it was not deciding the Open Carry question because Open Carry was not a question before the Court. These two concealed carry lawsuits are Peruta v. San Diego and Richards v. Prieto in which the National Rifle Association, the NRA’s state organization the California Rifle and Pistol Association, the Second Amendment Foundation and the CalGuns.nuts Foundation argued that states can (and should) ban Open Carry in favor of concealed carry permits.
In April of 2012, California Attorney General Kamala Harris’ Department of Justice sent out a bulletin to all California Criminal Justice and Law Enforcement Agencies telling them that it is now illegal to openly carry an unloaded handgun in California (the Open Carry of loaded firearms had been banned in 1967). Likewise, in March of 2013 a bulletin was sent by Harris’ DOJ to the same law enforcement agencies and personnel informing them that California had made it a crime to openly carry an unloaded long gun.
And yet, despite the State of California’s concession on June 16, 2015, that its bans on openly carrying firearms in public are unconstitutional, the two California state elected officials who enforce the bans, Governor Brown and Attorney General Harris, are still enforcing the bans as are all other agents of the state, e.g., your local police.
Once the mandate has issued in the Peruta/Richards concealed carry appeals my California Open Carry appeal will be heard by the 9th Circuit Court of Appeals. The California DOJ never sent out a bulletin informing all California Criminal Justice and Law Enforcement Agencies that the California Open Carry bans are unconstitutional and the State of California still opposes my lawsuit which seeks to overturn California’s bans on openly carrying firearms (loaded and unloaded).
Naturally, I will point out in my appeal that the State of California has already conceded that California’s Open Carry bans are unconstitutional and to argue that they are constitutional in my appeal means that the State of California lied in the Peruta/Richards concealed carry lawsuits, or they are lying now, either way the State of California lied.
It will be interesting to see how many, if any, of the Federal judges assigned to my appeal like being lied to by the State.
Unless something unprecedented happens, my California Open Carry appeal will be fully briefed by the first week of February, 2017, and ready for oral arguments.