The NRA still claims that there is a right under the Second Amendment to carry weapons concealed in public and the NRA still claims that states can ban Open Carry in favor of concealed carry.
You will never read about this in the mainstream press but, in a couple of weeks, you will be able to read the NRA’s cert petitions to the United States Supreme Court in a couple of concealed carry cases the NRA lost in the 9th circuit.
One often hears someone say he is going to take his case all the way to the Supreme Court. This is typically an idle boast because to get to the Supreme Court, one must first have a final judgment from a district court followed by a decision from a court of appeals before one can even ask the US Supreme Court to hear one’s appeal, which takes years and a boatload of money.
Unlike a court of appeals, where everyone has the right to an appeal, the US Supreme Court gets to pick and chose which cases it will hear and the chances of the Supreme Court deciding to hear a case are about 1 in 100.
And those 1 in 100 cases almost always have one thing going for them and that is the appellate decision (or state high court decision involving the Federal Constitution) conflicts with a decision of one, or more, Federal courts of appeal.
Absent a conflict between the Federal circuit court of appeal, or the invalidation of a Federal law, the Supreme Court rarely takes a case just because it conflicts with a decision of the Supreme Court.
The justices of the US Supreme Court say that it isn’t their job to correct the errors of the lower courts and with few exceptions they don’t correct errors of the lower courts.
And, of course, if the decision in one’s case does not conflict with any US Supreme Court decision then there is no error for the high court to correct and consequently no reason for the high court to grant the appeal, even if it were so inclined.
I realize that what you see on TV and at the movies portrays the courts in a very different light but movies and TV are fantasy, not reality.
On January 5, 2017, the petition for the US Supreme Court to hear the concealed carry appeal in McKay v. Hutchens, the Sheriff of Orange County California is due.
On January 12, 2017, the petition for the US Supreme Court to hear the concealed carry appeal in Peruta v. San Diego is due.
The petitions to the Supreme Court were both due this year but the petitioners (the NRA) asked for, and received, an extension of time to file their petitions. The NRA had asked for a second extension of time to file its petition in the McKay case but it was denied. The NRA has not asked for another extension of time to file its cert petition in the Peruta case.
After the petitions are filed, I will post links to them at my website once I have obtained copies of the petitions.
The insurmountable obstacle that both cases have is the decisions by the 9th Circuit Court of Appeals in both cases do not conflict with any US Supreme Court decision and the decisions do not conflict with any decision by any Federal court of appeals or conflict with any state high court decision on the Second Amendment. Therefore, there is no reason for their petitions to be granted.
Another insurmountable obstacle is that there are not four justices, the minimum required, who want to hear a concealed carry case.
In its landmark decision from 2008, District of Columbia v. Heller, the US Supreme Court said that concealed carry is not a right but Open Carry is. The US Supreme Court also said that concealed carry is not a right under the Second Amendment in 1897 and reaffirmed its 2008 Heller decision in 2010 and again in March of this year. Not to mention state court decisions going back nearly 200 years which also held that there is no Second Amendment right to carry a weapon concealed in public.
Even if President-Elect Trump were to get his eventual nominee seated on the Supreme Court in time to vote on whether or not to hear either or both of these cases, there still are not four justices who will vote to hear either of these cases. And that assumes that his eventual nominee is one who would be willing to overturn these longstanding court decisions which have held that there is no right to carry concealed weapons in public.
Nevertheless, it will be interesting to read the petitions and more interesting to read the opposition briefs in these two cases.
If you are familiar with the Peruta v. San Diego case and are wondering about the Richards v. Prieto concealed carry appeal which was argued, and lost, alongside the Peruta appeal, the Second Amendment Foundation (SAF) and the CalGuns.nuts Foundation did not file a cert petition in their case (Richards v. Prieto).
I guess Alan Gottlieb and his attorney Alan Gura got tired of filing concealed carry cert petitions with the Supreme Court only to see them denied.
“[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809
“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose … For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues … “ District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816
“[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.
“We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.” McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010) at 3050.