After losing a lawsuit before the 9th circuit court of appeals in 2016, a case in which the NRA argued that states and local governments can ban Open Carry in favor of concealed carry, the NRA filed a new lawsuit in district court which again argued that states and local governments can ban Open Carry in favor of concealed carry.
A definition of insanity is doing the same thing over and over again, expecting a different result each time.
On Monday, May 7th, Federal District Court Judge John Kronstadt granted the State of California’s motion for summary judgment in which he said it was unnecessary for him to decide whether or not there is a right to openly carry a firearm in public because the “exception” for carrying a loaded firearm when one is in “grave, immediate danger” is sufficient to uphold California’s bans on openly carrying firearms.
Notwithstanding that this “exception” is not an exception, it is an affirmative defense, Judge Kronstadt did not say where this magic gun would come from. The “exception” applies only to the brief interval of time between notifying the police and their arrival. It remains a crime to carry a loaded firearm, or to carry an unloaded firearm, outside the door to one’s home, or in a motor vehicle, including any attached camper or trailer, for the purpose of lawful self-defense even if one’s sole residence is the attached camper or trailer.
Not that the Plaintiffs in that case, Flanagan v. Harris (now v. Becerra) have legal standing to challenge California’s Open Carry bans. You see, no matter how unconstitutional a law is, or how well one argues that a law is unconstitutional, if neither your Complaint nor any Declaration articulates a concrete plan to violate the law by the plaintiffs then you do not have legal standing to challenge that law in Federal court. That’s just the way it is.
Not only did none of the NRA’s Flanagan Plaintiffs articulate a plan, concrete or otherwise, three of the named plaintiffs, including the lead plaintiff, disavowed any desire to openly carry a loaded or unloaded firearm in violation of California’s Open Carry bans.
Of course any Open Carry issue the NRA raises on appeal will be moot as my challenge to California’s Open Carry bans will have decided whether or not there is a right to keep and bear arms, under any legal theory, outside of our home before oral argument takes place in the NRA Fake Open Carry lawsuit, if they take place at all.
By the way, in addition to seeking shall-issue concealed carry permits in the Flanagan case, the NRA sought to prohibit counties which can issue handgun Open Carry licenses from issuing Open Carry licenses thereby leaving the only remedy left being the issuance of concealed carry permits.
Fortunately, instead of filing a motion for partial summary judgment, the NRA filed a motion for full summary judgment in which it forgot to include a request for an injunction barring these county sheriffs from issuing handgun Open Carry licenses, thus forfeiting that issue on appeal.
In my California Open Carry lawsuit, Charles Nichols v. Edmund Brown, Jr., et al, I filed a motion for partial summary judgment and argued that my district court case should go to trial for several reasons, and not just because the California Loaded Open Carry ban was racially motivated, thus preserving all of my claims raised in the district court on appeal.
Another significant difference between my appeal and the NRA appeal is that final judgment was issued in the district court based on the pleadings. This means that for the court of appeals to affirm the dismissal of my lawsuit (Nichols v. Brown), it would have to hold that there is absolutely no legal argument I could raise on remand in support of my challenge to California’s Open Carry bans. Not so with the NRA Flanagan case because of the procedural posture of that case in the district court.
If the NRA truly wants to challenge California’s Open Carry bans then it will have to file a brand new lawsuit in the district court which actually challenges those bans. It won’t. After all, the NRA helped write the 1967 Loaded Open Carry ban and has spent the better part of this decade in Federal court arguing to uphold California’s Open Carry bans.
And let us not forget that in its Peruta v. San Diego concealed carry lawsuit, the NRA argued in support of California’s Gun-Free School Zone Act of 1995 which is a ban on the carrying of handguns (loaded and unloaded) which extends 1,000 feet from every K-12 public and private school in the state.
Meanwhile, the NRA in New York, New Jersey, and Maryland has funded three new concealed carry lawsuits in Federal district court. The Second Amendment Foundation has already lost in each of those states and the US Supreme Court denied the SAF’s cert petitions.
These three new cases are:
New York State Rifle & Pistol Association, Inc. et al v. Beach et al – Federal New York Northern District Court which lies in the 2nd circuit court of appeals.
ROGERS et al v. GREWAL et al – New Jersey Federal District Court which lies in the 3rd circuit court of appeals.
Malpasso et al v. Pallozzi – Maryland Federal District Court which lies in the 4th circuit court of appeals.
Which raises the question as to “Why?”
In order to overturn the decisions in the SAF cases in each of these Federal circuits, an en banc panel of the court of appeals would have to rule in favor of the plaintiffs, or the United States Supreme Court would have to grant the plaintiffs’ inevitable cert petitions and then overrule the lower court holdings.
Has there been a significant change in the composition of the judges on these appellate courts? No! Has there been a significant change in the composition of the justices on the US Supreme Court? No!
On the plus side, these three new concealed carry lawsuits will allow us to look on with wry amusement as the NRA cult members and SAF cult members wage their endless internecine warfare against each other as to which of the cults has the better lawyers while the other so called gun-rights groups, groups which never file their own lawsuits, trumpet that they are the only true defenders of the Second Amendment.
It takes the vote of four justices of the US Supreme Court to grant a cert petition. It takes the vote of five of the nine justices to prevail once a cert petition is granted.
Here is a game you can play with the concealed carrier cultists. Ask them to name the four justices who will grant the cert petitions and to name the five justices who will decide that Open Carry can be banned in favor of concealed carry.
Finally, ask them to provide pinpoint citations from each of these justices in support of their claim.
Odds are they can’t even name the nine justices on the Supreme Court and haven’t a clue as to what a pinpoint citation is but they know what they know and damn anyone who challenges their unsupported beliefs with facts.
