The End of California Concealed Carry

Not just the end of California Concealed Carry but the end of concealed carry throughout the 9th circuit court of appeals.

Nine years, two months, and six days after attorney William Gorski filed a Federal lawsuit seeking concealed carry permits for two of his clients, a three judge panel of the 9th circuit court of appeals disposed of his lawsuit in a short, two-page (double spaced) decision in James Rothery, et al. v. County of Sacramento, et al.

Mr. Gorski’s Second Amendment claim was disposed of in a single sentence:

“The district court properly dismissed plaintiffs’ Second Amendment claim because “the Second Amendment does not protect, in any degree, the carrying of concealed firearms by members of the general public.” Citing the en banc decision in Peruta v. San Diego.

This was the longest pending concealed carry appeal in the 9th circuit and very likely the longest pending concealed carry appeal anywhere in the United States.

You may recall that the United States Supreme Court published a decision in June of 2008 which held that the Second Amendment guarantees an individual right of self-defense independent of belonging to a militia. That decision was District of Columbia v. Heller.

The Heller decision was the Supreme Court’s first in-depth analysis of the Second Amendment to the Bill of Rights. The decision was written by the late Justice Antonin Scalia who championed plain English interpretation of government laws and deciding constitutional questions based on the original meaning of the Constitution tempered by longstanding prior court decisions.

For example, in the Heller decision, Justice Scalia wrote:

“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose … For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

Moreover, Justice Scalia cited two pre Civil War state decisions which he said perfectly captured the meaning of the right to keep and bear arms. Both of these cases held that concealed carry is cowardly, criminal, immoral and not a right while at the same time holding that Open Carry is the right guaranteed by the Constitution.

According to all nine justices of the US Supreme Court, the Heller decision held that:

“[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations””

In 1897 the Supreme Court likewise said that “[T]he right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons … ”

Two months and seven days after the Heller decision was published, Mr. Gorski filed his lawsuit seeking concealed carry permits in California as would the National Rifle Association, the Second Amendment Foundation, the CalGuns Foundation, followed by half a dozen or more concealed carry lawsuits filed by others.

I am the only person who filed a lawsuit seeking to overturn California’s Open Carry bans. My appeal, Charles Nichols v. Edmund Brown, Jr., et al, is being considered for oral argument before a three-judge panel of the 9th circuit court of appeals the week of February 5, 2018. My lawsuit was filed in November of 2011.

Colt single action. Image by Xavi Barrera from Pixabay
Colt single action. Image by Xavi Barrera from Pixabay

Unlike all of these concealed carry lawsuits, my lawsuit argues that the US Supreme Court meant exactly what it said about Open Carry being the right guaranteed by the Constitution.

The State of California defendants, Governor Brown and Attorney General Becerra do not claim that my lawsuit conflicts in the slightest with the US Supreme Court.

Instead, California Governor Brown and California Attorney General Becerra argue that the US Supreme Court got it wrong. According to them, there is no right to keep and bear arms even one inch outside the doors to our homes.

Next year, the California legislature will likely pass a bill which would raise the cost of obtaining a concealed carry permit to $5,000 or more.

A California concealed carry permit is valid for two years.

And because the 9th circuit court of appeals has held that there is no right to carry a concealed weapon in public, the new law will be upheld.

Is There a Right to Keep and Bear Arms? 9th Circuit to Decide in 2018