“Oh! What A Tangled Web We Weave When First We Practice To Deceive” – Sir Walter Scott
The National Rifle Association, its official California organization The California Rifle and Pistol Association, the governor of California, the attorney general of California and both houses of the Democrat-controlled California legislature want the same thing.
They all want California’s bans on openly carrying loaded and unloaded firearms to stay in effect.
And stay in effect they would, had I not filed a Federal lawsuit way back in 2011 which seeks to strike down California’s Open Carry bans.
They all want for the ability to carry a firearm in public for the purpose of self-defense be limited to handguns, and be limited to concealed carry, and be limited to only those persons who have a government issued permission slip to carry the handgun, and, in the words of NRA lawyer Paul Clement, limited to those who can jump through a few hoops to prove that they have “good cause” to be issued the permit.
A Little Background Information
California’s ban on openly carrying loaded firearms for the purpose of self-defense went into effect in July of 1967.
The NRA helped write that ban and endorsed its passage.
In April of 2010, the NRA funded a concealed carry lawsuit which argued to uphold California’s Open Carry bans and argued to uphold California’s Gun-Free School Zone Act of 1995. California’s gun-free school zones extend 1,000 feet from every K-12 public and private school in California, a violation of which results in at least a ten-year ban on your right to even possess a firearm with the possibility of a lifelong ban. That lawsuit was Peruta v. San Diego.
You never did read about that in either the mainstream or the conservative press. The only way you would know this for certain would be if you had bothered to read the briefs filed in the Peruta v. San Diego case and listened to or watched the oral arguments which took place.
At the time, the 9th circuit court of appeals had dedicated an en banc page linked from its front page to all of the appellate briefs filed in the case.
The video of the Peruta v. San Diego en banc oral arguments is still linked to on the Court’s website and free for everyone to watch on the Court’s YouTube channel.
In 2016, the NRA lost its Peruta v. San Diego concealed carry lawsuit and immediately filed another concealed carry lawsuit, Flanagan v. Becerra.
The Flanagan lawsuit makes the same argument that the failed Peruta lawsuit made. Namely, that states can ban Open Carry in favor of concealed carry and since California has banned Open Carry, they are entitled to concealed carry permits.
The Flanagan lawsuit lost in the district court and filed an appeal.
Charles Nichols v. Edmund G. Brown Jr., et al
The problem for the NRA and the government of California is my California Open Carry appeal, Charles Nichols v. Edmund G. Brown Jr., et al (now v. Newsom) was filed years ahead of their Flanagan concealed carry appeal.
This put my California Open Carry lawsuit years ahead of the NRA’s concealed carry lawsuit.
Indeed! My appeal has already been fully briefed and argued before a three-judge panel of 9th circuit judges. If there were no other case ahead of it, the NRA appeal would have been argued before, and decided by, a three-judge panel in three years or so after filing its appeal.
The decision in my appeal will come much sooner than that and the decision in my appeal, Nichols v. Newsom, will be binding on the NRA’s Flanagan appeal.
And so, in an attempt to bypass my appeal, the State of California filed a petition on September 24, 2018, which asked that the Flanagan v. Becerra appeal be heard before an eleven-member en banc panel of judges instead of first being heard before a three-judge panel of judges.
If the petition were granted then we would have the NRA and the State of California arguing before an en banc panel of eleven judges that California can ban Open Carry in favor of concealed carry. The only thing they would have been dickering over is how much of a “good cause” can the state require in order for one to be issued a concealed carry permit.
As in the Peruta v. San Diego en banc hearing, there would be nobody arguing in defense of the Second Amendment Open Carry right.
Which Brings us to Today.
9th Circuit Court of Appeals Speaks
Today, February 7, 2019, four months and 14 days after the State of California filed its petition for the Flanagan appeal to be initially heard en banc, the petition was denied.
The icing on the cake is not a single judge even asked for the petition to be voted on (it takes a majority vote of 9th circuit active judges to grant an en banc petition).
The Order denying the en banc petition simply read:
“No judge has requested a vote to hear this case initially en banc within the time allowed by GO 5.2(a). The petition for initial hearing en banc (Docket Entry No. 12) is therefore denied.”
The NRA may now try to spin this into a victory for the NRA. The NRA, and its lapdogs in the press, will say that the NRA opposed the en banc petition. What the NRA won’t tell you is the NRA’s actual position, which was the NRA supported the en banc petition if the petition were granted. And, of course, if the petition were denied then the NRA opposed the petition.
You won’t read that in the mainstream press but you will read it in the petition that was denied today.
A great irony is that the NRA, which is supposed to be a conservative organization, is shoveling the same Soviet Era, Orwellian double-talk we conservatives condemned a generation ago.
I still condemn it. Why does the so-called conservative press support it?
You should ask them.
It’s as if Alexandria Ocasio-Cortez is secretly running things behind the scene at the NRA and the “conservative” press.
The Mainstream press has no incentive to tell you the truth. The NRA is the largest, most powerful organization which supports gun-control in this country. Why should the left-wing reporters who work for the Mainstream press tell the suckers giving money to the NRA that they are funding the destruction of the Second Amendment with their donations?
But I digress.
Another nice thing about the State of California’s en banc petition being denied is the denial suggests that the en banc petition filed by the State of Hawaii in a related Second Amendment Open Carry decision (Young v. Hawaii) will be denied.
And if the en banc petition in the Young appeal is denied then that three-judge panel decision becomes binding on my California Open Carry appeal because the Young v. Hawaii appeal was argued and taken under submission for a decision three days before my California Open Carry appeal was argued before a three-judge panel (submission of my appeal for a decision has been vacated pending the issuance of the Mandate in Young v. Hawaii).
As of this writing, I am the first and only person who has ever filed a lawsuit which seeks to restore our Second Amendment right to bear arms in California. I am hopeful that a second California Open Carry lawsuit will be filed this month.
We shall see.
With a little luck, we won’t need another California Open Carry lawsuit.
Time will tell.
If the Young v. Hawaii en banc petition is going to be granted and the case heard in March (en banc hearings take place every three months) then we should know within two weeks, give or take.