Second Amendment Year in Review

While the concealed carriers were wallowing in their own filth, I spent the Holidays searching every cert petition filed that was docketed for the 2017 to 2021 SCOTUS terms for Second Amendment cases that were made available online by SCOTUS starting in late 2017.

I searched through many thousands of petitions. Except for a few frivolous petitions, you can find links to them on the cert petitions page at my website (link below).

Only three Second Amendment cases from the last term survived. The first is NYSRPA v. Bruen, which was granted, argued, and submitted for a decision on November 3rd, 2021. We are now waiting for the opinion to be published. Young v. Hawaii (handgun Open Carry) is the second and ANJRPC (magazine ban) is the third cert petition. The latter two cert petitions survived the SCOTUS Long Conference of 9-27-2021 and are presumably being held for the opinion in NYSRPA v. Bruen to be published.

The Cert Petitions on my webpage are now arranged by Term Year. Previously, I had arranged them by the calendar year of their disposition. The “term year” is indicated by the first two digits of the cert petition number that is assigned to the case when it is docketed by SCOTUS.

Note: Not every “gun case” presents a Second Amendment question to the justices for them to decide. I searched each cert petition for the term “Second Amendment.” If the term “Second Amendment” does not appear in the petition then odds are you won’t find it listed on my webpage, although there are a few cert petitions on my webpage not related to the Second Amendment.

The 2021 SCOTUS term will conclude at the end of June 2022. In July, the first cert petitions will be docketed for the 2022 SCOTUS term that begins on the first Monday in October 2022. At the end of September, there will be another “Long Conference” where the fate of more than a thousand cert petitions will be decided. Nearly every one of the over 1,000 cert petitions scheduled for the Long Conference will be denied and if history is any indication, every Second Amendment cert petition will be denied as well.

As of December 31st, 2021, the Justices have turned down more than 22 Second Amendment and related cert petitions docketed for the current term and granted none of the others.

On Friday, January 7th, 2022, the justices will return from their Winter vacation and meet in a private conference where the fate of five more Second Amendment cert petitions will be decided. Those five cert petitions will undoubtedly be denied. If they had any chance of being granted then SCOTUS would have held them until after the opinion in NYSRPA v. Bruen is published.

We will know for certain the following Monday morning when SCOTUS publishes its list of orders that consists mostly of cert petitions that were denied in the previous week’s conference.

There are another half dozen Second Amendment and related cert petitions that have not yet been assigned to a SCOTUS conference to be voted on. There will be many more to come before the current term is over. The reality is that most, if not all of them, will be placed on the “dead list.”

When a cert petition is scheduled for a conference, that does not mean that the justices actually vote on whether or not to grant each petition. The only petitions that actually receive a vote on whether or not to grant are those petitions in which a justice has asked for a vote. Nearly every petition is denied without a single justice asking for a vote on the petition.

Most of the Second Amendment pundits predicted that the demise of Justice Ginsburg and the appointment of Justice Barrett would result in a deluge of Second Amendment cases being granted. So far, that has not happened and if Justice Barrett’s questions in NYSRPA v. Bruen are any indication then it is almost a certainty that Second Amendment cert petitions will continue to be shot down.

One need look no further than those Second Amendment cert petitions that have been denied since Justice Barrett took her seat on October 27th, 2020.

As a judge for the 7th circuit court of appeals, then Judge Barrett wrote a single dissent in a Second Amendment case where she said that prohibitions on the possession of firearms should be based on whether or not the crime was one of violence, and not on whether or not one is immoral.

There were many cert petitions by people who are prohibited from possessing firearms since Justice Barrett took her seat, all of them were denied without Justice Barrett so much as filing a dissent to the denial of the cert petition.

If you are a person who is prevented under state or Federal law from possessing a firearm then save your money, your cert petition will be denied.

Likewise, save your money if your cert petition is one where you claim that the Second Amendment protects your right to defend yourself, and you are convicted of a crime where you did defend yourself, and even if nobody was killed or injured as Eduardo Salgado discovered when he was convicted for:

“After defendant Eduardo Salgado lightly hit the back of another car at a stoplight, he was confronted by the other driver. Remaining seated in his car, defendant picked up and cocked or racked his handgun and asked the other driver, “Is there any damage?” The jury convicted defendant of one count of making criminal threats and one count of possession of a concealed firearm.”

If Salgado had remained silent then he could not have been convicted of the crime of making a criminal threat and if he had not concealed his handgun at any time then he could not have been convicted of the crime of concealing a handgun in his motor vehicle.

However, under California law, everyone may use deadly force to defend oneself against serious bodily injury. It seems paradoxical that one can be convicted of the crime of making a criminal threat by asking “Is there any damage?” but not commit a crime by remaining silent and waiting for his assailant to escalate his attack to the point where there is a reasonable fear of serious bodily injury. But that is California and don’t expect SCOTUS to weigh in on any Second Amendment right to use a firearm for the purpose of self-defense when it has taken more than 13 years to grant a cert petition which involves actually carrying a firearm in public in case of confrontation for the purpose of lawful self-defense.

Another all to common cert petition involves the petitioner, usually a convicted felon, claiming that his Fourth Amendment right was violated because he was in a state where concealed carry is legal and suspicion of carrying a concealed weapon was the reason for which he was searched. SCOTUS will grant Fourth Amendment cases such as the one where a man was convicted for carrying 49 bricks of heroin in a rental car but one thing SCOTUS will not grant is a cert petition claiming a Fourth Amendment violation when one is carrying a concealed weapon, or thought to be carrying a concealed weapon.

In 1968, the U.S. Supreme Court created an exception to the Fourth Amendment in the case of Terry v. Ohio which allows for the search of a person who has been detained (not even arrested) to see if that person is carrying a concealed weapon. SCOTUS is not going to patch that huge, gaping hole it tore in the Fourth Amendment.

SCOTUS is currently holding a petition challenging a ban on so-called “high capacity” magazines. It is not the first magazine ban petition filed with SCOTUS, and it won’t be the last. Another is right now en route challenging (sort of) California’s magazine ban. I say “sort of” because the NRA lawyers in the case told the 9th circuit court of appeals that it is constitutional for California to ban high-capacity magazines. The only problem the NRA has with the ban is it thinks a ban on magazines with more than ten rounds is too small a limit. What the Goldilocks number is exactly, the NRA lawyers did not say.

On December 20th, 2021, an “Assault Weapons” ban cert petition was filed with SCOTUS. We will have to wait and see what happens with it but SCOTUS has denied all of the other challenges to gun bans since McDonald v. Chicago was published in June of 2010. The 9th circuit court of appeals is holding a challenge to California’s assault weapons ban pending the publishing of the opinion in NYSRPA v. Bruen.

The 9th circuit court of appeals is also holding off on a decision in my California Open Carry lawsuit, Charles Nichols v. Gavin Newsom, et al., pending the disposition of the cert petition filed in Young v. Hawaii which in turn appears to be held by SCOTUS pending the opinion in NYSRPA v. Bruen.

My lawsuit, which is now in its eleventh year of litigation, is the most likely case to win. Some concealed carrier “gun guy” moron on YouTube criticized me and my lawsuit because I am still standing more than ten years later while at the same time he praised the NRA/CRPA for winning a lot of cases which the NRA and its official state organization, the California Rifle and Pistol Association has in fact lost.

It is telling that the only person, me, who has ever filed a lawsuit challenging California’s bans on openly carrying loaded and unloaded rifles, shotguns, and handguns, for the purpose of lawful self-defense and other lawful purposes is banned from YouTube and YouTube won’t tell me or a lawyer for Reason magazine why I was banned from YouTube.

My “banned from YouTube videos” are online elsewhere. Watch them and judge for yourself. The links can be found on the right sidebar of my Cert Petitions webpage.

Under California law, it is a crime for me to carry a loaded firearm outside the doors to my home even into the curtilage of my home unless I am in “grave, immediate danger” but even then, being in grave, immediate danger is only a defense to the crime of carrying a loaded or unloaded firearm. But if I were someone who is prohibited from possessing a firearm under California law then I cannot be punished for carrying a loaded or unloaded firearm, openly or concealed.

According to the California Supreme Court, the only people who can be punished for carrying a loaded or unloaded firearm are those people who are not prohibited from possessing firearms. Also, the California courts have held that violent felons who commit violent felonies, such as murder, rape, kidnapping, arson, and armed robbery cannot be punished for using a loaded or unloaded firearm to commit their violent felonies.

But it is a crime for the rest of us to arm ourselves with a loaded or unloaded firearm for the purpose of lawful self-defense until we would-be victims are in grave, immediate danger.

Worse, those convicted felons, other prohibited persons, and those who are in the process of committing a violent felony have the right, under California law, to use deadly force against their victim should the victim threaten the attacker with serious bodily injury and the attacker is unable to retreat or surrender. “Grave, immediate danger” for us is a much higher hurdle to overcome than is “a reasonable fear of serious bodily injury” for criminals.

Given that my lawsuit does not make a claim to carry any specific firearm, and my lawsuit disavows concealed carry, and the carrying of firearms in any sensitive place, and excludes prohibited persons, for me to lose the 9th circuit court of appeals would have to conclude that there is no right to bear arms outside the doors to our home, not even in the curtilage of our home which SCOTUS has always treated to be as protected a place as the inside of our home.

2022 is a watershed year for the Second Amendment. But even if it is favorable in 2022, and that is by no means certain, it will last only as long as there are at least five justices on the Supreme Court who are willing to defend the Second Amendment.

Two of those Justices are Thomas and Alito. Both are over 70 years of age. One day, perhaps sooner than later, they will be replaced and almost certainly be replaced with justices hostile to the Second Amendment. Assuming that there are now six justices willing to defend the Second Amendment, and that is a generous assumption when Justices Thomas and Alito are gone the balance of the Court will be at least 5 to 4 against the Second Amendment.

SCOTUS will continue to deny cert petitions that seek to vindicate the Second Amendment right, the so-called gun-rights groups will continue to attack the Second Amendment both inside and outside of Court, and the concealed carriers will continue to wallow in their own filth.

And I will still have been the one and only person to file a lawsuit challenging California’s bans on openly carrying loaded and unloaded rifles, shotguns, and handguns for the purpose of lawful self-defense and other lawful purposes.

California’s loaded Open Carry ban was enacted in July of 1967. It was supported by the NRA at the time and has been defended by the NRA and the other so-called gun-rights groups like the CRPA and SAF and CalGuns.nuts (now CGF and FPC), all of whom told the Federal courts that the Loaded Open Carry ban, and the Unloaded Open Carry bans, do not violate the Second Amendment.

Gun owners are the worst opponents of the right to keep and bear arms.

California Open Carry’s Cert Petitions Webpage