The Future of the Second Amendment in California and Hawaii

By Charles Nichols – President of California Right To Carry

First of all, forget everything you think you know about the law and how our legal system works. Everything you have seen on TV and in the movies is pure fantasy. Everything you have read in the newspapers, be it online or in print, was written by reporters who likewise haven’t a clue as to what the law says or how our legal system works.

Even lawyers are not as knowledgeable as you might think. For one thing, it is difficult enough to be well versed in even a very narrow field of law and even for an attorney who specializes in a particular area of the law. If you ask a lawyer a legal question and his answer isn’t “Maybe,” “Perhaps, I will have to look into it,” or something similar then you should hold on to your wallet and find a new lawyer.

The Second Amendment is no exception. Worse, for those of us who would like to see our Second Amendment rights vindicated, the lawyers filing Second Amendment lawsuits are the tip of the problem. The underlying problem is that these Second Amendment lawsuits are funded by so called “gun-rights” groups which talk a lot about their support for the Second Amendment while holding their hands out for money, but when they get into court their lawyers argue in support of gun-control laws.

Some have speculated, and for good reason, that these groups need gun-control laws in order to exist. Where would the National Rifle Association (NRA), the California Rifle and Pistol Association (CRPA), the Second Amendment Foundation (SAF), the CalGuns Foundation (CalGuns), or any other group you can think of be if there were no gun-control laws?

Without you sending them money, they would cease to exist.

The central component (“core right” ) of the Second Amendment is to keep and bear arms for the purpose of self-defense. In 2008, the United States Supreme Court published its first in-depth decision on the Second Amendment (District of Columbia v. Heller) in which that was its central holding. In 2010 the Supreme Court published an even longer decision (McDonald v. City of Chicago) which as importantly held that the Second Amendment right defined in the Heller decision is a fundamental, individual right that applies to all state and local governments.

It takes a majority of justices to decide a case. In both the Heller and McDonald decisions the vote was 5-4. Neither of these cases would have made it to the Supreme Court if it were not for a minimum of four justices voting to hear them and that would not have happened if there hadn’t been at least one of their clerks bringing the cases to their attention. The Supreme Court receives between eight and ten thousand petitions a year. It is impossible for the justices to read every petition and so they hand that responsibility off to their clerks, but that is another story. The point being is that we were very lucky that these cases were even heard by the High Court, let alone decided as they were.

However, the Supreme Court said that the Second Amendment right is not unlimited. For example, the Court said that the Second Amendment right does not apply to convicted felons or to the mentally ill. Crucially, the Court said that a right to carry arms openly is the right guaranteed by the Second Amendment and that concealed carry can be banned. As importantly, despite Alan Gura’s (Heller’s attorney) insistence that the government can require you, me and everyone to have a government issued permission slip in order to own, possess or carry a firearm, and despite a couple of the justices urging Gura to challenge a permit requirement, the Court did not say that the government can require a permission slip to possess a firearm.

With two US Supreme Court decisions affirming the Second Amendment right to openly carry a firearm for the purpose of self-defense, decisions which in turn affirmed a US Supreme Court decision from 1897 which said that there is no right to carry a concealed weapon, California’s and Hawaii’s bans on openly carrying firearms (Open Carry) in public for the purpose of self-defense should have been easy wins for the so called gun-rights groups in court.

Instead, the above mentioned “gun-rights” groups filed Federal lawsuits seeking government-issued permission slips to carry handguns concealed. Their lawyers argued that states can ban Open Carry, contrary to three US Supreme Court decisions and contrary to every state court decision which upheld prohibitions on concealed carry going back over 200 years.

Not only did their lawyers argue that states can ban Open Carry, they argued that states can place any number of restrictions on the Second Amendment right, including a requirement that one first have a government-issued permission slip to carry a firearm and, incredibly, they argued in support of California’s Gun-Free School Zone Act of 1995 which generally bans firearms within 1,000 feet of a K-12 public or private school.

I do not know about Hawaii but in California most people can’t throw a rock from their front yard without it landing within 1,000 feet of a K-12 public or private school. I cannot count the times I have received a bulk email from the NRA, or some other communication such as a news report, where the NRA has publicly condemned gun-free school zones and yet here we have the NRA telling this nations largest court of appeals that overturning California’s Gun-Free School Zone Act of 1995 would be, in their word, “drastic.”

Their lawsuits have now been heard by a special “en banc” court of the 9th Circuit Court of Appeals on June 16, 2015. We are now awaiting the decision of the en banc court, which will likely determine the fate of the Second Amendment in this circuit, which includes California and Hawaii, for decades to come.

A week before oral arguments were held, I wrote an analysis of each of the eleven judges who sat on the en banc panel which included how they were likely to vote. In that analysis I predicted that we would have a decision by the end of this summer and that the “gun-rights” groups would lose. My prediction was not unique. The NRA lawyer for one of the two cases (Peruta v. San Diego) said that he believed that the decision was already written (deciding against him) and would be issued shortly after oral arguments.

But something happened during the oral arguments which might result in our having to wait longer for a decision, possibly much longer.

The Solicitor General for the State of California asked permission from the en banc court to appear before it during the oral arguments. The en banc court granted the State’s request provided that his time in which to speak came from the defendants in the case (the Sheriffs of San Diego and Yolo counties).

During the en banc oral arguments the Solicitor General conceded that the Second Amendment right to bear arms does indeed extend beyond the curtilage of one’s home, but not to concealed carry.

The ramifications of this concession should not be underestimated. Since November of 2011 I have waged a war in Federal court to overturn California’s bans on openly carrying loaded and unloaded firearms in public (Nichols v. Brown). The defendants are the Governor of California and the California Attorney General (the Solicitor General was appointed by the California Attorney General). In my lawsuit the State of California would not even concede that there is a right to possess a firearm inside of one’s home, let alone to carry one in the curtilage of one’s home or in public.

Mine is a pure Open Carry case. I do not seek to carry a firearm concealed anywhere. The two cases heard before the en banc court (Richards v. Prieto and Peruta v. San Diego) are pure concealed carry cases. They do not seek to openly carry firearms anywhere in the state. Indeed, they both argued that states can ban Open Carry.

Peruta’s NRA lawyer had said he believed that the en banc decision had already been written. I agree. But now that the State of California has conceded that the right to bear arms extends beyond the curtilage of one’s home, the en banc court will now have to wrestle with that concession before it publishes its decision. In short, there will be a rewrite of the decision and a rewrite of the dissents.

If the en banc court accepts the concession by the Solicitor General that the right to bear arms extends beyond the curtilage of one’s home and says so in its decision then my California Open Carry appeal moves to the front of the line as does Young v. Hawaii, a case in which the plaintiff seeks to carry a handgun in public, either openly or concealed. With a 9th Circuit decision affirming the right to Open Carry, I easily prevail in my appeal and Young prevails in at least part of his appeal.

Before writing my prediction on June 8, 2015, I reviewed every Second Amendment decision from the 9th Circuit Court of Appeals both published and unpublished. The decisions were quickly issued once the case had been taken under submission for a decision. Hence my prediction that we would have a decision from the en banc court by the end of this summer.

One can only hope that the en banc decision is published soon but there is no time limit for the court to issue its decision. Circuit Judge Pregerson, who sat on the en banc panel, once criticized a fellow judge who took three years to publish a decision. Judge Pregerson is 91 years old. Let us hope that he is likewise urging his fellow judges to render a decision before he leaves the bench.

Charles Nichols is President of California Right To Carry