The California Supreme Court Case That Could Upend Gun-Groups’ Concealed Carry Lawsuits

The late US Supreme Court Justice Antonin Scalia said he opposed cameras in the courtroom because the press would take misleading sound bites of the hearing and use them on the news. He was then asked why that would be a problem? After all, people and reporters can read the decisions for themselves and then they would know what the case was really about and what the opinions of the Justices actually are.

Justice Scalia replied that people and reporters do not read court decisions.

A truer statement has never been spoken.

Around ten months ago I spoke at a meeting of the South Bay/Beach Cities Republican Club. There were about 100 or so people in attendance and not a single one of them had heard of either the NRA/CRPA concealed carry lawsuit which has been in the Federal courts since October 29, 2010 or the SAF/Calguns concealed carry lawsuit which has been in the Federal courts since May 5, 2009.

I spoke in front of a group of Republican activists who claimed to also be ardent supporters of the Second Amendment and yet they were seemingly oblivious to Second Amendment litigation, not just nationally but litigation involving the state in which they live.

scalia on court decisions
Anton Scalia said people and reporters do not read court decisions.

If you do a Google web search of the two case names (Peruta v. San Diego & Richards v. Prieto) my website comes in third and second, respectively, from the top of the search results. My website tracks the number of clicks made on the briefs and court decisions available on my website. I send out frequent press releases regarding these two cases. Unfortunately, I have empirical evidence that …

People and reporters do not read court decisions, they do not read the briefs filed in these cases, and when people do read news articles about these cases, these articles are written by reporters who have never read the relevant court decisions or briefs filed in the cases.

In short, reporters who haven’t got a clue are writing articles intended to be read by the public who likewise haven’t got a clue. The quintessential case of the blind leading the blind.

For the benefit of that miniscule segment of the population interested, there is a case which will soon be heard and decided by the California Supreme Court which could very well upend the so called gun-rights group’s quest for shall-issue concealed carry permits.

On February 10, 2015, a three judge panel of the California State Court of Appeals, 2nd Appellate District, 5th Division reversed a trial court judge’s motion to dismiss a charge of carrying a loaded handgun in public (California Penal Code section 25850).

The trial court had relied upon a recent appellate court decision from the same Appellate District (1st Division) which held that the language for carrying a concealed dirk or dagger, which is the same language used in the law prohibiting the carrying of concealed handguns and the law prohibiting the carrying of loaded firearms, does not include weapons carried in a backpack, tool belt, tackle box, briefcase, purse, or similar container that is used to carry or transport possessions.

Steven Wade had been charged with carrying a loaded handgun in a backpack in a public place in violation of PC 25850. When the court of appeals reinstated the dismissed charge thereby creating a split with a prior panel decision, Wade appealed and the California Supreme Court decided to hear his case on April 29, 2015.

Unlike the Federal Appellate courts and US Supreme Court which does not have a time-limit imposed upon them within which they must render a decision, the California Supreme Court must render a decision within 90 days of hearing the case and taking it under submission for a decision.

For this reason I thought it would be another year or two (or three) before the California Supreme Court scheduled oral arguments in this case (People v. Wade). Much to my surprise, oral arguments have been scheduled for next month – April 7, 2016. A decision will be released within 90 days.

If the California Supreme Court rules in favor of Steven v. Wade then it will no longer be a crime to carry a loaded handgun concealed unless the handgun is concealed within or beneath the clothing one is wearing. All of the concealed carry cases in the 9th Circuit, including Peruta & Richards would become moot as the plaintiffs in those cases won’t need a permit to carry a loaded, concealed handgun.

Concealed carry is no use to me because I do not carry a purse and besides, Open Carry is the right guaranteed by the Constitution. Concealed carry is not a right (with few exceptions) and can be banned according to Justice Scalia and the eight other members of the US Supreme Court in the majority and minority decisions of District of Columbia v. Heller. People and reporters would know this had they bothered to read the decision.

But people and reporters don’t read decisions.

Whichever way the decision goes in the case of People v. Wade it will not affect my California Open Carry lawsuit because I never sought to carry a weapon concealed, anywhere. Not on my person, not in my home (including the curtilage of my home) not in or on a motor vehicle or in or on any attached camper or trailer in non-sensitive public places. In all of these places my lawsuit seeks to openly carry firearms. Even my challenges to California’s CCW laws challenge the laws only as applied to licenses to openly carry handguns. Mine is a pure Open Carry lawsuit untainted by concealed carry.

The question before the California Supreme Court in People v. Wade is:

“Is a defendant carrying a firearm ‘on his person’ within the meaning of Penal Code section 25850, subdivision (a), if he is wearing a backpack containing a firearm?”

“On his person” is the key term the court will be deciding. The constitutionality of PC 25850 is not at issue in this case. The California Supreme Court will be resolving the ambiguity of the term “on the person” found in PC 25850.

My California Open Carry lawsuit, on the other hand, seeks to enjoin PC 25850 in its entirety and if I am successful then whatever the California Supreme Court decides in People v. Wade would become irrelevant.

To paraphrase Monty Python, the courts are a very silly place. It’s best to avoid them whenever you can.

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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