“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. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251…” – District of Columbia v. Heller, 128 S. Ct. 2783 Supreme Court (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.
January 5, 2017, was the deadline for National Rifle Association lawyer Paul Clement to file the cert petition in the case of Mckay v. Hutchens. A search of the Supreme Court online dockets turned up empty and neither the lawyers for Orange County Sheriff Hutchens nor the official California state NRA organization, the California Rifle and Pistol Association (CRPA), responded to my inquiries.
The McKay appeal was the first of two concealed carry appeals out of California. Having missed its deadline to file its cert petition, the McKay appeal is now dead.
This leaves us with the second of the appeals, Peruta v. San Diego. The filing deadline in that case is January 12, 2017.
Should the NRA file its cert petition with the Supreme Court it really won’t matter if it is filed on time, the outcome is a foregone conclusion – Cert Denied.
Personally, I eagerly await the filing of the cert petition in the Peruta case and I am curious to see if any Amicus briefs are filed in support of the Supreme Court granting the cert petition. They should be amusing to read in a gallows humor sort of way.
When the Mckay v. Hutchens lawsuit was filed back in September of 2012, I wrote that the reason the lawsuit was filed was to correct the mistakes the NRA made when it took over the Peruta v. San Diego lawsuit in 2010. I also wrote that not only did the NRA fail to correct its mistakes made in Peruta, it made brand new mistakes.
Wait! There’s Less!
Having lost both the Peruta and McKay concealed carry lawsuits the NRA filed a new concealed carry lawsuit against the California attorney general and the Los Angeles County Sheriff – Flanagan v. Harris.
The NRA claims that this is an Open Carry case but nowhere in any of its filings do any of the plaintiffs seek to openly carry firearms anywhere, not even in the curtilage of their homes. They do seek to have the court compel the Los Angeles County Sheriff to issue them concealed carry permits, something which the Peruta v. San Diego en banc decision precludes the district court from doing.
This latest NRA lawsuit reminds me of a similar case out of Colorado. The plaintiff, who was an out of state resident, sought a concealed carry permit because Denver bans Open Carry. Instead of challenging the Denver Open Carry ban he challenged the state concealed carry law. When the case came before the 10th Circuit Court of Appeals, his lawyer said that his client would, reluctantly carry a handgun openly if that were the only way he could carry.
The judges lashed out at the Plaintiff’s attorney pointing out that nowhere in his lawsuit did the plaintiff ever seek to openly carry a firearm.
I say “reminds me” because in all of the NRA lawsuits the NRA claims that states can, should and must ban Open Carry in favor of concealed carry permits. There is no concession, reluctant or otherwise, that the NRA plaintiffs would openly carry firearms in the Flanagan lawsuit.
It does not take a crystal ball to predict that one day the Flanagan v. Harris concealed carry lawsuit, despite its laughable disguise, will end the same way – Cert denied.