Second Amendment Perfect Storm

A perfect storm is brewing in Washington, D.C. The storm clouds have been gathering since November 20th, 2007, when the United States Supreme Court granted the cert petition in District of Columbia v. Dick Anthony Heller. The decision, in that case, held that the Second Amendment right to keep and bear arms for the purpose of self-defense is an individual right unconnected with service in a militia.

After defining what the Second Amendment right is and what the right is not, the majority of justices then applied the right to the District of Columbia gun laws challenged in the lower courts and held that they are unconstitutional.

Two years later, in a similar challenge to a City of Chicago local ordinance which virtually banned the possession of handguns in the city by residents of the city, the US Supreme Court held that both the Second Amendment right defined in Heller, and the Second Amendment right in full, applies to all states and local governments in Otis McDonald et al v. City of Chicago.

Other than a very short, five-paragraph per curiam involving a Massachusetts ban on electric stun guns issued shortly after Justice Scalia (the author of the Heller decision) had died, a per curiam where the Court would not even say whether or not electric stun guns are arms protected by the Second Amendment, the Supreme Court has remained silent on the Second Amendment.

The Court has remained silent while the lower court judges have openly defied the Supreme Court decisions on the Second Amendment in both Heller and McDonald as well as the very limited per curiam decision which reversed the unanimous opinion of the Massachusetts Supreme Judicial Council (that state’s highest court) regarding electric stun guns.

Silent that is until January 22nd of this year when the US Supreme Court granted the cert petition in New York State Rifle and Pistol Association v. New York City (NYSRPA v. NYC).

The question presented by the petitioners is a simple, three-part question, “Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.”

On December 2nd of this year at 10:00 AM Eastern Time, the justices will gather in their courtroom to hear oral argument in NYSRPA v. NYC. On Friday, December 6th, the justices will meet in private conference and, for the first time, discuss the case in-depth and then vote on which side is going to win. If the Chief Justice is in the majority then he will assign the writing of the majority opinion. Otherwise, it is the justice in the majority with the most seniority who decides who will write the decision.

And then we will wait for a decision.

The last day scheduled for the justices to meet in the current term, which began on the first Monday of October, is June 29, 2020. Barring something extraordinary, we will have a decision in NYSRPA v. NYC on, or before, that day.

But the Second Amendment question presented in NYSRPA v. NYC is a narrow question and if that is all that the justices decide then the lower courts will feel free to continue to eviscerate the Second Amendment in every case brought before them.

As fate would have it, there is a Second Amendment armada of cert petitions currently pending before the United States Supreme Court with at least two more en route to arrive this term. There would have been two concealed carry cases out of New York but the Federal 2nd circuit court of appeals has decided to hold them pending a decision in NYSRPA v. NYC.

This armada of cert petitions has nothing to do with transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits.

Five of these pending cert petitions challenge the discretionary issuance of licenses to carry handguns outside of the home in the states of Massachusetts, New Jersey, and Maryland. None of these states has a state prohibition on the carrying of long guns in public although there are local prohibitions in Maryland, and New Jersey law says that legally owned loaded long guns can be carried where allowed but does not say where the carrying of long guns is, or is not, allowed. There does not appear to be any prohibition on the carrying of unloaded long guns under New Jersey state law. And so the question in these “carry” cases is whether or not there is a right to carry a handgun in public.

Another cert petition challenges the Federal law prohibiting Federally licensed firearms dealers from selling handguns to non-residents of a state. Another challenges the State of California’s de facto ban on the sale of new handguns. Another presents the question, “Whether the Second Amendment secures [the] right to possess arms, notwithstanding [a] conviction for making a false statement to a lending institution 29 years ago.” There is a cert petition filed on September 23, 2019, that involves a constitutional challenge to a Massachusetts law proscribing the sale, transfer, and possession of certain semiautomatic “assault weapons” and “large-capacity” magazines.

Although it is possible that some or all of these cert petitions might be carried over to the next US Supreme Court term beginning on the first Monday in October 2020, that is only a theoretical possibility. We can say with certainty that, one way or the other, these cert petitions will be decided this term.

A cert petition can be denied, almost all of them are denied without any explanation as to why they were denied. A cert petition can be granted and then argued on the merits which is what has happened in NYSRPA v. NYC. A cert petition can be “Granted-Vacated-Remanded” (GVR’d) with instructions to the lower court to do something specific or to rehear the case, this time the right way. And a cert petition can be held over to the next term. Four of the pending cert petitions are being held over from the last term. Presumably waiting for the decision in NYSRPA v. NYC followed by one of the other options for a cert petition just listed.

Regardless of what the justices decide in NYSRPA v. NYC, if they simply deny all of these pending cert petitions with Second Amendment questions clearly presented then that will be a green light for the lower courts to continue their war against the Second Amendment.

I think the justices know this, which is why many of these petitions have survived their first conference of justices where the justices vote on whether or not to grant a cert petition, a conference in which nearly all cert petitions perish. Indeed, some of these Second Amendment cert petitions have survived a second conference of justices, which is even rarer.

Frustratingly, all of these “carry” petitions are limited to the carrying of handguns in public. According to the text, history and tradition of the Second Amendment under both Federal and state court decisions, the bearing of long guns (rifles and muskets) has always been protected by the Second Amendment regardless of whether or not the courts construed the right to be an individual right or a right limited to participation in a militia.

Handguns specifically, and concealable firearms in general, were often suspect or simply held by the courts not to be arms protected by the Second Amendment. If a firearm were not of the type that one would bring with him to war then they were not firearms protected by the Second Amendment. It was as simple as that.

Large caliber handguns of a type which were not easily or ordinarily carried concealed were deemed to be arms protected by the Second Amendment whereas firearms which are easily and ordinarily carried concealed where deemed to be unprotected by the Second Amendment.

In 1897, the US Supreme Court published a decision in which it said that prohibiting concealed carry does not infringe on the Second Amendment right. In 1939, the US Supreme Court held that short-barreled shotguns are not protected by the Second Amendment because it (incorrectly) concluded that these are not weapons of war. In a dissent, Justice Alito said he would have held that the mere possession of a short-barreled shotgun by a prohibited person was in and of itself a crime of violence. One of the reasons he gave was because a sawed-off shotgun could be concealed.

The Heller decision overruled the holding from the 1939 Supreme Court Miller decision which held that only weapons of war are protected by the Second Amendment. The Heller decision said that there are some arms that the Second Amendment does not protect and that is all that the Miller decision stands for. The Heller decision did not tell us what arms are not protected by the Second Amendment other than saying that all bearable arms are prima facie protected by the Second Amendment.

That particular holding of the Heller decision was supposed to have shifted the burden of the proof to the government that a particular arm is not protected by the Second Amendment. It was supposed to have done so but like so much else in the Heller decision, the lower courts have flagrantly defied it and the McDonald decision as well. Courts have held that there is no Second Amendment right to possess a specific firearm saying, in effect, you can always buy some other firearm and so your Second Amendment rights are not infringed.

The cert petitions which are purely concealed carry cases continue to be denied this term as last, just as they have been denied in every term since Congress first gave the Supreme Court the discretion to pick and choose which cases it is going to hear way back in 1925. Which might be why the lawyers for a concealed carry case out of Illinois have scaled back their case. Instead of seeking concealed carry permits for residents of states other than Illinois, they now simply seek to be allowed to apply for an Illinois concealed carry permit. The question presented in that case (Culp et al v. Kwame Raoul, et al) is, “Whether the Second Amendment right to keep and bear arms requires that the State of Illinois allow qualified non-residents to apply for an Illinois concealed carry license.”

Illinois asked for an extension to file its Brief In Opposition to January 13, 2020. That extension was granted. I suspect that Illinois will argue, as per the US Supreme Court decisions in Baldwin, Heller, and McDonald that there is no right to carry a weapon concealed.

But you never can tell what someone will write in a brief. One of the lawyers for the government in one of the other handgun “carry” cases double-dared the Supreme Court to grant the petition in that case.

When the justices hear oral argument in NYSRPA v. NYC, I will have already begun my 9th year of litigation in my Federal lawsuit which seeks to overturn California’s bans on openly carrying loaded and unloaded firearms in public, for the purpose of self-defense and for other lawful purposes.

My lawsuit, Charles Nichols v. Gavin Newsom et al (originally Charles Nichols v. Edmund G. Brown Jr., et al) was argued on February 15th, 2018, before a three-judge panel of the 9th circuit court of appeals. My California Open Carry lawsuit was filed in the Federal Central District Court of California on November 30th, 2011.

In these past eight years in which my California Open Carry lawsuit has been plodding its way through the Federal courts, the 9th circuit court of appeals has decided over sixty cases involving the Second Amendment. There were more than a dozen concealed carry cases filed in this circuit before and after I filed my Open Carry lawsuit. They have all lost. This leaves my Open Carry case as the last California case standing, just as I predicted it would be when I first filed it and have reminded folks from time to time as the concealed carry lawsuits were knocked down one after the other.

One of those concealed carry cases was Peruta v. San Diego (consolidated with Richards v. Prieto) in which an en banc panel of eleven 9th circuit court of appeals judges held that there is not a right to carry a loaded, concealed handgun under the Second Amendment. As a result of that decision, both the NRA/CRPA backed Peruta v. San Diego and the SAF, CalGuns.nuts backed Richards v. Prieto concealed carry lawsuits lost on appeal. Richards did not file a cert petition but the NRA did in Peruta. The lawyer in the Richard’s concealed carry case had already filed concealed carry cert petitions in a couple of other cases. They were, of course, shot down in flames. The NRA’s Peruta v. San Diego cert petition was likewise denied.

The State of California argued in Peruta/Richards that the judges sitting on the en banc panel are bound by the US Supreme Court decision in District of Columbia v. Heller which held that Open Carry is the right guaranteed by the Constitution and that concealed carry is not a right. The State of California conceded that the individual right to openly carry firearms extends beyond the curtilage of one’s home but that right does not extend to concealed carry, as per the Heller decision.

The State of California prevailed.

The en banc panel of the 9th circuit court of appeals judges held that concealed carry is not a right as per the Heller decision. The en banc panel did not decide whether or not there is a right to openly carry firearms in public because that question was not before them. Indeed, the NRA, CRPA, SAF, and CalGuns.nuts lawyers had argued that California can, should, and must ban Open Carry in favor of concealed carry. The plaintiffs all claimed that Justice Scalia had written in the Heller decision that states can ban Open Carry in favor of concealed carry, a bald-faced lie.

And yet I am, as is nearly everyone who is in an incorporated city in the State of California, prohibited from stepping even one inch outside the door to my home into the curtilage of my home carrying any loaded firearm or an unloaded firearm which is not an antique, if I am carrying the firearm for the purpose of self-defense and for many other lawful purposes.

Having conceded that we have a right to openly carry firearms in public, beyond the curtilage of our homes, but we do not have a right to carry concealed in public, and prevailed, the State of California is procedurally barred from saying in my California Open Carry lawsuit that the Heller and McDonald decisions did not say that we have a right to openly carry firearms in public and that right applies to every state and local government via the McDonald decision.

Instead, the State of California argued that the US Supreme Court was mistaken in both its Heller and McDonald decisions. The State of California argues instead that there is no Second Amendment right to bear arms because when the Second Amendment was enacted in 1791, nobody carried arms in public, for any reason.

I kid you not. Here is an excerpt from the oral argument in my appeal.

In any event, that nutty legal argument from the State of California is not what is holding up the decision in my appeal. Unknown to me at the time I had filed my California Open Carry lawsuit, a man named George Young Jr., had been trying to obtain a permit to carry “weapons” openly or concealed in Hawaii. He had applied for both concealed and open carry permits, and was denied both. Six months or so after my lawsuit was filed in California, Mr. Young filed his lawsuit in Hawaii (both states are in the 9th circuit).

Had Mr. Young applied only for a concealed carry permit then his appeal would have died along with the rest of the concealed carry appeals and it would have remained a footnote.

Although Mr. Young’s case was filed in the district court after my lawsuit was filed and even though his appeal was filed before mine because the district court judge assigned to his case quickly held that the right to keep and bear arms is limited to the inside of one’s home, it is the first case on appeal which is submitted for a decision whose decision is binding on subsequent three-judge panels in the 9th circuit court of appeals. And although the first appeal filed is supposed to have priority over subsequent appeals in both oral argument and submission for a decision, it often does not work that way in reality. This time it did.

Mr. Young’s appeal was argued in Hawaii before a three-judge panel and then taken under submission for a decision three days before my appeal was argued in Pasadena before my separate three-judge panel.

Since the threshold Second Amendment question (no pun intended) in both of our appeals is whether or not the Second Amendment right to keep and bear arms extends outside of our homes, my three-judge panel had to wait for the three-judge panel decision in Mr. Young’s appeal (George Young Jr., v. State of Hawaii, et al) because Mr. Young’s appeal was argued and submitted for a decision before mine. On a related note, three-judge panels of the California Court of Appeals are not bound by prior three-judge panel decisions. When there is a conflict between them, state trial court judges are free to choose which decision they are going to follow.

Technically, the three judges on my panel are not “bound” in the sense that they would be punished if they were to issue a decision which conflicts with the decision of a prior three-judge panel but the effect of doing so would force an en banc panel to convene to resolve the intra-circuit split and the 9th circuit judges reportedly do not like to convene en banc panels. But I digress.

Well, Mr. Young got a favorable two to one decision from his three-judge panel. That would have entailed a favorable decision from my three-judge panel given that they were bound by that decision but a majority of active judges on the 9th circuit court of appeals decided to vacate that favorable three-judge panel decision in Young v. Hawaii and to rehear the case before a limited en banc panel of 9th circuit court of appeals active judges (which might include one or both of the senior judges on the Young v. Hawaii panel).

The en banc petition in Young v. Hawaii was granted on February 8, 2019. En banc oral argument was calendared to take place in San Francisco the week of March 25, 2019. On January 22nd, the Supreme Court had granted the petition in NYSRPA v. NYC. For some reason known only to the en banc panel, the panel canceled the oral argument in Young v. Hawaii and stayed the en banc appeal until the Supreme Court publishes its decision in NYSRPA v. NYC.

Mr. Young filed a motion to lift the stay. His motion was denied.

And since my three-judge panel is bound by whatever decision the eleven-judge en banc panel decides in the Young v. Hawaii appeal, there will not be a decision in my appeal until there is an en banc decision in Young v. Hawaii.

Technically, my appeal is not stayed. Submission of my case for a decision was vacated and remains vacated pending the en banc decision in Young v. Hawaii. For example, given that the court of appeals judges have the same powers as does a district court judge, the Federal Rules of Appellate Procedure allow me to seek a preliminary injunction against California’s Open Carry bans. My motion for a preliminary injunction would in all likelihood be denied. However, denials of preliminary injunctions can be appealed to the United States Supreme Court via a cert petition.

But that would cost a lot of money I don’t have and, in the overall scheme of things, the cert petition challenging the denial (or unlikely grant) of my preliminary injunction would not be fully briefed until after there is a decision in NYSRPA v. NYC and after the Second Amendment armada has prevailed or been sunk.

Neither Mr. Young, nor the latest NRA concealed carry appeal out of Los Angeles County, which is also stayed on appeal, can ask anything from the court of appeals other than to lift the stay, which Mr. Young’s attorney demonstrated is not going to happen.

There is one other thing that I, or Mr. Young, or any other case which has a final judgment from a district court judge can do, and that other thing is to file a cert petition with the US Supreme Court before there is a decision by the court of appeals. Unfortunately, at this late date, the cert petition could not be fully briefed until after it is too late to schedule an oral argument this term. The best that one could hope for is that the cert petition is Granted-Vacated-Remanded with a favorable instruction. The second best thing is that the cert petition would be granted and scheduled for oral argument when the next term of the Supreme Court begins on the first Monday of October 2020.

But let us assume that this Second Amendment perfect storm sinks the armada of Second Amendment cert petitions and the Supreme Court doesn’t say anything more than the New York City law violates the Second Amendment, or the Commerce Clause, or the right to travel (or dismissed the case as moot). In other words, a hollow decision signifying nothing.

SCOTUS Grants 2nd Amendment Cert Petition – Now What?

And let us assume that both I and Mr. Young lose our Second Amendment claims here in the 9th circuit court of appeals. The Supreme Court will be presented with two new cert petitions and one of them, Nichols v. Newsom, will not be limited to handguns.

The question presented to the Court in my cert petition will, presumably, mirror the same question presented in Young v. Hawaii, “Is the right to keep and bear arms limited to the inside of one’s home?”

Quoting Justice Scalia from the final paragraph of his opinion in District of Columbia v. Heller:

“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

If my and Mr. Young’s cert petitions are denied then the Supreme Court will have pronounced the Second Amendment extinct.

Which, come to think of it, might make for an even better question to present in my cert petition, “Is the Second Amendment extinct?”

Charles Nichols is a proponent of open carry.  In 2011, he filed a Federal Civil Rights lawsuit seeking to overturn California’s 1967 ban on openly carrying loaded firearms in public for the purpose of lawful self-defense.  Oral argument in his case took place on February 15, 2018, before a three-judge panel of the 9th circuit court of appeals. Charles follows court cases relating to The Second Amendment and tells us what they really mean instead of what reporters, who have never read the decisions in the cases, say they mean.

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