162 days after the hearing took place on the motions to dismiss the NRA’s fictitious Open Carry lawsuit, Federal District Court Judge John A. Kronstadt has released the transcript of that hearing and what a tale it tells about the National Rifle Association and the fools who keep giving the NRA money.
Federal Judge to NRA lawyer – “I Don’t Understand What You Just Said”
This statement by Federal Judge Kronstadt during the hearing perfectly captures 25 pages of questions and answers between Judge Kronstadt and the NRA lawyer regarding the Second Amendment and just what it is exactly the NRA hopes to achieve with its lawsuit.
First A Little Background Is In Order
In 1923, California passed a law which required a state permit to carry a handgun concealed regardless of whether or not the handgun is loaded. The NRA supported passage of the legislation which, according to the sponsor, the purpose of the bill was to keep concealable firearms out of the hands of Latinos and Chinese who could not be trusted with even possessing handguns and other concealable firearms. The following year the California Supreme Court upheld that law.
In 1967, the National Rifle Association endorsed a ban on openly carrying loaded firearms in public. More to the point, the NRA helped write that ban. The ban was passed in response to Black men and women (members of the defunct Black Panther Party for Self-Defense) openly carrying firearms in public. Once the bill was amended to exempt hunters from the ban, the NRA endorsed its passage.
In 2009, a man by the name of Ed Peruta filed a lawsuit challenging his being denied a license for a concealed carry permit, Peruta v. San Diego. The district court judge assigned to that case denied the motion to dismiss and shortly thereafter, Ed Peruta allowed the NRA to take over his lawsuit. The NRA would subsequently lose its lawsuit before the same district court judge and before an en banc court of appeals and finally, its cert petition would be denied by the US Supreme Court.
Over the next seven years of litigation the NRA lawyers would argue to uphold California’s Open Carry bans and the NRA lawyers would argue in support of California’s Gun-Free School Zone Act of 1995.
In 2011, the California legislature passed a law making it a crime to openly carry an unloaded handgun in public. A year later, the California legislature passed a law making it a crime to openly carry an unloaded long gun.
On June 9, 2016, an en banc panel of eleven judges held that there is no right of the general public to carry a loaded, concealed handgun in public under the Second Amendment and denied the NRA’s petition for a full court hearing on August 15, 2016. The US Supreme Court denied the NRA’s cert petition on June 26, 2017.
Over these seven years of litigation the NRA’s legal arguments were all over the map. In the end the NRA argument could be summed up as this: The State of California can ban Open Carry, the state of California can ban concealed carry but it can’t ban both. States can, should and must ban Open Carry and since California has validly chosen to ban Open Carry, we must be issued concealed carry permits.
The NRA lost that argument and every other argument it made in the Peruta v. San Diego lawsuit from the first day it took over the lawsuit to the day its cert petition was denied in Peruta v. California.
The Current Lawsuit – Flanagan v. Becerra
On August 17, 2016, the National Rifle Association through its official state organization the California Rifle and Pistol Association filed its fake lawsuit which the NRA claims is an “Open Carry” lawsuit.
The main problem with this NRA lawsuit, and there are many problems with the lawsuit, is that the remedy the lawsuit sought was concealed carry permits which is a remedy not available to them because of their failed lawsuit in Peruta v. San Diego.
Should you read the transcript of the hearing you will discover that the NRA did not expend any effort attacking California’s Open Carry bans. The NRA lawyer continued to claim that there is a right to concealed carry and that if the Los Angeles County Sheriff were to grant concealed carry permits then the Second Amendment claim would be satisfied and the parties could all go home.
“So Let’s Move On.“ – Federal Judge Kronstadt to NRA lawyer
At the end of page 25 of the transcript of the hearing, Judge Kronstadt had had enough of the tap dancing by the NRA lawyer. Judge Kronstadt said that the NRA lawyer had not shown that there is any legal remedy he can grant against the Los Angeles County Sheriff and said it was time to move on.
Pages 27-30 of the transcript are related to administrative details regarding deadlines for certain filing dates.
On pages 31-36 the lawyers debated whether or not there was a valid 14th Amendment claim separate from the Second Amendment claim.
Motions to Dismiss Granted, With Prejudice
On February 24, 2017, Federal Judge Kronstadt granted the motion to dismiss made by the Los Angeles County Sheriff and granted the motion to dismiss the concealed carry claim and the 14th Amendment claim, all with prejudice. “With prejudice” means that the NRA will have to wait until final judgment is issued in this case in order to challenge the dismissals with prejudice.
Technically, the NRA could have jumped through a couple of hoops and challenged their dismissal with prejudice now but that would be kind of pointless given that there will be a final judgment in the district court before the court of appeals issued its decision on the current dismissals with prejudice.
I encourage all of you to read the transcript available to you for free at the link below as well as the Complaint filed by the NRA in this lawsuit which is also available for free at my website.
As I said earlier, there are many problems with this fake Open Carry lawsuit by the NRA. The biggest problem is that the plaintiffs do not have what is known as legal standing to challenge California’s Open Carry bans.
In order to have legal standing to challenge a law, one cannot simply file a lawsuit claiming that the law is unconstitutional and expect for the law to be struck down by the courts even if the legal arguments one makes against the law are compelling.
The courts have laid out a minefield of procedural law obstacles between someone challenging a law and the court having to decide a constitutional claim.
One of these procedural landmines is that the plaintiffs must articulate a concrete plan to violate the law. The plaintiffs are not required to execute their plan and actually break the law but they can’t simply say that someday, somewhere, sometime in the future they will or would violate the law.
The plaintiffs in this fake Open Carry lawsuit don’t articulate any plan to violate California’s Open Carry bans, let alone a concrete plan. The sole remaining “remedy” the NRA seeks in its challenge to California’s handgun Open Carry licensing law is to permanently prohibit the State of California from providing for licenses to openly carry handguns.
That’s right! The NRA’s Open Carry lawsuit seeks to ban Open Carry!
Self professed supporters of the NRA (or any of the so called gun-rights groups like the Second Amendment Foundation and CalGuns.nuts and Gun Owners of America/California, CRPA, etc) are a special kind of stupid if they ever again give money in support of the NRA (or the other so called gun-rights groups).
Flanagan v. Becerra case page at California Right to Carry