What’s Next for the Right to Carry Firearms in Public?

Well, the 9th Circuit Court of Appeals has given its final verdict on concealed carry and in what shouldn’t have come as a surprise to anyone, the en banc panel of the 9th Circuit Court of Appeals held that there is absolutely no right to carry a weapon concealed in public under the Second Amendment of the United States Constitution.

Given that all of the plaintiffs had argued that states can ban concealed carry, no one should be complaining that the 9th Circuit took them at their word. If you didn’t like the decision then blame: The National Rifle Association, The California Rifle and Pistol Association, The Second Amendment Foundation, The CalGuns Foundation and every other so called gun-rights groups which filed an Amicus brief in support of their lawsuits. By the way, the plaintiffs in these two cases also claimed that Open Carry can be banned. Be grateful that the 9th Circuit Court of Appeals did not agree with them on that point as well.

Charles Nichols - President of California Right To Carry - Protesting California's Open Carry Bans.
Charles Nichols – President of California Right To Carry – Protesting California’s Open Carry Bans

The en Banc Court Said Only One Thing

There is no right to carry a concealed weapon in public, that was the only thing the en banc court said in the Peruta v. San Diego decision.

The en banc Court explicitly stated that it was not deciding whether or not there is a right to bear arms in public, but if there is a right to carry firearms in public, the court said then that right is only to openly carry arms in public. The decision is Peruta v. San Diego and Richards v. Prieto (en banc). The decision is binding in every state and territory within the 9th Circuit Court of Appeals.

This means that barring some unforeseen circumstance such as my getting hit by a bus, or one of my detractors shooting me in the back as he promised to do, my lawsuit which seeks to overturn California’s ban on openly carrying loaded firearms and openly carrying unloaded firearms in public (and in the curtilage of our homes) is going to be the case which restores the right to openly carry firearms in the 9th Circuit. A right which the states of California and Hawaii have destroyed.

Hindering Fight for Second Amendment

There are three cases which could hinder our fight for the second amendment.

The following is going to be mind-numbingly dull for most people. If you would like to skip to the end and make a donation, the donation will be much appreciated and I will take no offense in your skipping over this next section which is truly boring.

The Short Version

The short version is that the three cases I talk about will at worst delay my case even longer than it has already been delayed. Two of the cases are undoubtedly going to lose or be remanded back to the district court for a do-over. If the third case survives then I will file a motion for my case to either be aligned with its appeal, or heard before the same panel of judges.

In Detail

The last time I counted there were a dozen or so lawsuits here in the 9th Circuit which seek concealed carry permits. Every one of them has now, in light of the Peruta decision, gone down in flames. It may take a couple of months or so for the courts to complete the paperwork to finalize their demise but those cases are dead.

There are two lawsuits out of Hawaii which purportedly sought permits to carry handguns openly or concealed. But these two cases are represented by a newly minted lawyer (Alan Beck) and, if I am not mistaken, these were his first two cases. And it showed.

The two cases are so heavily riddled with self-inflicted legal holes they don’t worry me too much. One of the two Hawaii cases, Baker v. Kealoha, is the appeal of a preliminary injunction which Mr. Beck seems to have abandoned but if not, will very likely lose and be kicked back to the district court for further proceedings, even more so now that the Peruta en banc decision has been published. Because of the Peruta en banc decision, and this circuit’s “highly deferential” standard in Preliminary Injunction appeals, there is no basis for his preliminary injunction appeal to be successful.

Mr. Beck can’t win his preliminary injunction before the 9th Circuit and given his seeming reluctance to fight for the preliminary injunction before the court of appeals, I don’t see him appealing the denial of his preliminary injunction to the US Supreme Court. That’s one down.

The second of the two cases has been briefed but not argued before a panel of judges. That case, Young v. Hawaii, does not worry me very much either because Young’s attorney screwed up the appeal for several reasons. That case is not limited to carrying firearms outside of the home. But where the appeal seeks to carry outside of the home it asked the court of appeals to give it the one thing the law does not allow a court to give. Neither the court of appeals nor any court can issue an order compelling the State of Hawaii to write new laws and that is what Young’s lawyer asked the court of appeals to do.

Courts can issue injunctions striking down all or part of a law. Courts can issue Declarations stating the rights of a party before it. Courts can issue an injunction and stay the injunction for a period of time to give a legislature time to write a new law. But the one thing a court cannot do is to tell a legislature to write a new law. Young’s lawyer must have missed that day of class in law school.

As I said, I am not too worried about these two cases out of Hawaii. They are filled with self-inflicted holes. That’s two down.

The third case which is worrisome is out of Idaho, Nesbitt v. US Army Corp of Engineers, and that is the only case which might cause us trouble. First of all, this lawsuit was filed by The Mountain States Legal Foundation and its lawyers are not newly minted. They have been around the block more than a few times but they too are no friends of the Second Amendment right to Open Carry. The plaintiffs in that case have concealed carry permits.

The Nesbitt case involves a ban on the carrying of loaded firearms, and unloaded firearms if one is in possession of matching ammunition, at a dam and surrounding recreational area managed by the U.S. Army Corps of Engineers in Idaho unless one is hunting or engaged in target shooting at an approved site.

The Federal government did not argue that there is no right to carry firearms in public. Its argument is that the dam and surrounding recreational area falls within the “sensitive places” exception to the right to keep and bear arms mentioned in the Heller decision.

That case did not file a motion to be initially heard en banc and so it is now too late for them to do so. That case will be heard before a three judge panel. If it loses then the plaintiffs could either file a petition for the case to be reheard or it could file a cert petition with the US Supreme Court.

A Three Judge Panel Decision Could Hurt but It Would Not Be Fatal to My Case

It is not too late for me to file a motion for my case to be heard initially en banc (I had always planned to ask that my case be initially heard en banc). If my request to have my case decided before an en banc panel is granted then it is the other cases which involve carrying firearms outside of the home which will likely be stayed pending a decision in my appeal.

And if my request is not granted and some three judge panel decides in some other case that there isn’t a right to openly carry firearms in public then I am still entitled to have my appeal heard before an en banc panel.

Concealed Carry Fight in This Circuit and Nation Is Over

Long story short, the fight for concealed carry in this circuit and in this Nation is over.

However, the fight for the Second Amendment right to openly carry firearms in public continues.

In the 49 years since California made it a crime to openly carry a loaded firearm in public, there has been only one person to challenge that ban – Me. There has also only been one person to challenge California’s ban on openly carrying unloaded firearms in public – That person would be me as well.

All of the so called gun-rights groups have been in Federal court for years arguing to uphold California’s Open Carry bans and have been since shortly after the US Supreme Court issued its landmark decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago which held that Open Carry is the right guaranteed by the Constitution and which held that concealed carry is not a right and can therefore be banned.

All of the so called gun-rights groups have been waging a war against the Second Amendment in the courts, including many groups you may have never heard of. All except one – California Right To Carry.

Charles Nichols – President of California Right To Carry

mailto:[email protected]



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