On October 8th, another lawyer from the firm of Michel and Associates lawyers and air-conditioning repairmen argued before a three-judge panel of the 9th circuit court of appeals in support of a lawsuit challenging California’s “Assault Weapons Control Act” (AWCA). The case is called Rupp v. Becerra.
A couple of years ago, I had traveled to the new Federal District Courthouse in downtown Los Angeles to witness first hand the same lawyer try to explain to a Federal district court judge why the Second Amendment allows California to ban the Open Carry of Loaded and Unloaded handguns, rifles and shotguns, and explain how California’s Open Carry bans entitle his plaintiffs to concealed carry permits.
It did not go well for the NRA/CRPA lawyer Sean Brady. The hearing began with the judge admonishing Mr. Brady for sitting on the wrong side of the courtroom. The hearing went down from there for Brady Boy.
You might ask, “What does concealed carry have to do with a ban on assault rifles?” Be patient, it will all come together for you very quickly.
In 2016, an eleven judge panel of the 9th circuit court of appeals held that concealed carry is not a Second Amendment right, and it held that although it was not deciding in that case if Open Carry in public is a right, it did hold that banning Open Carry does not create a right to concealed carry, concealed carry was never a right.
Flanagan v. Becerra is the third concealed carry lawsuit that the NRA has filed, through its official state organization, the California Rifle and Pistol Association that made the same legal argument. Namely, there is no right to openly carry handguns, rifles, and shotguns, therefore California’s Open Carry bans mean that its clients are entitled to concealed carry permits.
The first two of the NRA’s concealed carry lawsuits made that same legal argument and lost on appeal. This third concealed carry lawsuit, Flanagan v. Becerra, lost in the district court and is currently stayed on appeal.
The three-judge panel consisted of 9th circuit court of appeals judges, Hurwitz, an Obama appointee, and two Trump appointees, Bress and Bumatay.
I have watched Judge Hurwitz in oral argument for years. He has a lot of opinions since he joined the court in 2012. It is no mystery how he is going to vote. He is going to vote to uphold California’s Assault Weapon Control Act. Mr. Brady should have been prepared for hostile questions concealed in Judge Hurwitz’ velvet glove. He wasn’t.
The Connection between Concealed Carry and Assault Rifles
Judge Hurwitz asked the NRA/CRPA (California Rifle and Pistol Association) lawyer, Sean Brady, what if California allowed one to keep assault rifles in the home but prohibited them from being taken out of the home?
Mr. Brady said, “That would be a much tougher (case for us to win) … there has to be some outlet for training.
Judge Hurwitz then put the question to the NRA/CRPA lawyer, what if the state allowed training from the person the assault rifle was purchased from but it could only be possessed in the home?
Mr. Brady said, “I don’t think it would be but that would be a more difficult case (for the NRA/CRPA to win).”
Judge Hurwitz pressed Brady Boy, “What would be the difficulty with that statute, as a constitutional matter?”
The NRA/CRPA lawyer Sean Brady hemmed and hawed and fumbled around until Judge Bress asked him a question.
The reason why Judge Hurwitz asked the Boy Blunder these questions is because Mr. Brady’s name appears on the cover sheet of another appeal pending in the 9th circuit, Flanagan v. Becerra.
According to Mr. Brady and the NRA/CRPA, we do not have a right to openly carry any firearm in public be they handguns, rifles, or shotguns. That would, of course, include so-called “assault rifles.”
Judge Hurwitz can now write in his opinion or in his dissent that, “The Appellants cannot definitely say whether or not they have the right to bear these weapons. We need not decide that question because if there is not a right to bear these weapons, and the Appellants do not say that there is a right to bear these weapons then there is not a right to keep these weapons because the Second Amendment right is to keep and bear, not keep “or” bear.”
If judge Hurwitz is in the dissent then you can be certain the Rupp v. Becerra AWCA appeal will be reheard en banc.
A lawyer cannot argue in one case that the Second Amendment protects his right to openly carry a rifle in public while at the same time he has a case pending in the very same jurisdiction that argues the Second Amendment does not protect a right to openly carry any firearm, including a rifle, in public.
A lawyer can argue something that is the complete opposite of what he argued in another case if that other case is over. Lawyers do that all the time. For example, also on the cover sheet for Flanagan v. Becerra is a lawyer by the name of Paul Clement.
In the George W. Bush administration, Mr. Clement was solicitor general. He argued before the US Supreme Court in District of Columbia v. Heller (2008) that prohibiting concealed carry does not infringe on the Second Amendment right. All nine justices agreed on that point in the five-justice majority decision in Heller, and in the dissents.
In 2015, Mr. Clement told an en banc panel in the concealed carry lawsuit, Peruta v. San Diego, that one thing was clear from the Heller decision and that thing is states may ban Open Carry and impose concealed carry on the American people. That is the exact opposite of what he argued in District of Columbia v. Heller seven years earlier.
Although lawyers can and do make inconsistent legal arguments from one case to the next, they lose credibility when they do. Judges know that lawyers lie on behalf of their clients, lawyers are professional liars. Judges know this because before they became judges, they were practicing lawyers.
Judge Hurwitz, asked the NRA/CRPA lawyer if Claymore mines and trap guns are protected by the Second Amendment?
The NRA/CRPA lawyer should have answered, “No! Claymore mines and trap guns are concealed weapons. The Second Amendment does not protect concealed weapons. Neither are they bearable arms. If they are “arms” then they aren’t arms protected by the Second Amendment because they can’t be carried in case of confrontation for the purpose of self-defense. And if they can’t be openly carried in case of confrontation and used when confronted for the purpose of lawful self-defense then they are not arms protected by the Second Amendment.
But he couldn’t give that answer, even if he wanted to, because of his pending lawsuit in Flanagan v. Becerra which seeks concealed carry permits.
Under the Heller decision, there is no difference between the type of arms one can keep and the type of arms one can bear. English and 19th-century American law made the distinction, but the Heller decision did not. Under Heller, if the weapon is protected by the Second Amendment then we have the right to both keep and bear the arm. If the weapon is not protected by the Second Amendment then we do not have the right to either keep or bear the weapon.
The conflict between these two cases, Rupp v. Becerra and Flanagan v. Becerra, is one of the many valid reasons why the NRA/CRPA should never have filed this lawsuit. Another valid reason is they suck at their job.
The lawyers at Michel and Associates should stick with repairing air conditioners and leave the lawyer stuff to folks who know what they’re doing.
Full Disclosure: The NRA might no longer be funding this lawsuit. I know the NRA stopped funding one of the CRPA lawsuits on appeal, but I forgot to write down which of the CRPA lawsuits the NRA stopped funding. I am virtually certain that it is either this lawsuit or the Flanagan v. Becerra lawsuit.
Also, as my regular readers know, I have a lawsuit on appeal that seeks to strike down California’s bans on openly carrying loaded and unloaded firearms outside of one’s home, Charles Nichols v. Gavin Newsom, et al. I am not a fan of concealed carry. Were it up to me, there would be no concealed carry anywhere by anyone.