There are many reasons why Second Amendment cases keep losing in court. The primary reason is because lawyers who argue Second Amendment cases are not very good lawyers.
That includes the lawyers on both sides of the issue. And when a judge who is no fan of the Second Amendment to begin with is forced to choose between two opposing sides, neither of which has a clue, the judge chooses the side against the Second Amendment and then makes up a ruling to justify his or her decision. If the judge is an appellate judge then he or she writes a ruling which makes it a virtual impossibility for future lawyers to win a pro Second Amendment lawsuit anywhere in the circuit. This has happened in the 2nd, 3rd and 4 th Federal appellate circuits with the 1st, 5th and 11th circuits signaling that Second Amendment cases aren’t going to be very welcome in their circuits either.
For all intents and purposes there are only eleven numbered circuits and the US Court of Appeals for the District of Columbia within which a Second Amendment case can be brought and the DC Circuit has turned decidedly anti Second Amendment these past few years as well.
With half of the appellate courts overtly hostile to the Second Amendment and most of the rest of the appellate courts having a hard time hiding their hostility to the Second Amendment, what are we to do?
First and foremost we need to stop giving money to the so called gun-rights groups which keep filing these disastrous cases which keep giving anti Second Amendment judges excuses to hack away even further at the Second Amendment.
Case in point is the National Rifle Association lawsuits in Texas (the Fifth Federal Circuit). The NRA brought two separate lawsuits. One was a suit against the Bureau of Alcohol Tobacco and Firearms which sought to eliminate a law on the commercial sale of arms. Specifically, a law which requires that a person who purchases a handgun through a Federally licensed gun dealer must be at least 21 years of age.
In its landmark case regarding the Second Amendment back in 2008, District of Columbia v. Heller, the Supreme Court said that nothing in the decision “should be taken to cast doubt on longstanding prohibitions on…laws imposing conditions and qualifications on the commercial sale of arms.
That’s right. The US Supreme Court told anyone and everyone, particularly lawyers, who aren’t too lazy to read the Heller decision that the Heller decision isn’t a case that a lawyer should cite if he wants to challenge a law regarding the commercial sale of arms, which is exactly what the NRA lawyers did in this case.
The Fifth Circuit Court of Appeals could have simply told the NRA lawyers that “The Supreme Court told us that the Heller decision should not be taken to cast doubt on the very type of law being challenged and yet you argue that the Heller decision requires that this very type of law be overturned? You lose! Next case!”
Instead, in addition to upholding the law, the 5th Circuit Court of Appeals held that persons under the age of 21 do not have the Second Amendment right to buy handguns.
Some of us are of the generation that believed that if one is old enough to get drafted or old enough to join the Marine Corps then he is old enough to vote and if he is old enough to do all three then he is old enough to buy a gun and that includes a handgun.
Which brings us to the other NRA lawsuit brought in the 5th Circuit, NRA v. McCraw, in which the NRA sought to compel the state of Texas to issue concealed carry permits to 18-20 year old residents.
In addition to saying that nothing in the Heller decision should be taken to cast doubt on laws imposing conditions and qualifications on the commercial sale of arms, the US Supreme Court left no doubt that there isn’t a right to carry a weapon concealed in public regardless of one’s age.
And yet there the NRA was, telling the 5th Circuit Court of Appeals that 18-20 year olds have a right to carry handguns, which the 5th Circuit says they don’t even have the right to buy from an FFL and to then carry them in a concealed manner which nobody, regardless of age, has the right to do in public according to the US Supreme Court.
The court of appeals noted that the District court cited Heller’s holding that concealed carry is not a right but it didn’t matter. The 5th Circuit had already held that persons under 21 don’t have a Second Amendment right when it comes to handguns and so in this case the court basically said, “You lose NRA! Next case!”
But the NRA is not the worst offender. The winner of that dubious category goes to the Second Amendment Foundation which has brought one concealed carry lawsuit after another from one Federal Circuit to the next trying to find a Court of Appeals willing to say that when the US Supreme Court said in District of Columbia v. Heller that Open Carry is the right guaranteed by the Constitution and that concealed carry is not a right, what the Supreme Court actually said was just the opposite – that states can ban Open Carry in favor of concealed carry.
Because of these Second Amendment Foundation concealed carry lawsuits we might not ever see the right to openly carry a handgun restored to any state which falls within the 2nd, 3rd and 4th Circuit courts of appeal and if the SAF and the NRA have their way, you can kiss the Second Amendment Open Carry right goodbye in California, Hawaii and every other state in the 9th Circuit that decides to ban Open Carry.
When the 2nd Circuit Court of Appeals ruled against the SAF concealed carry concealed carry lawsuit the 2nd Circuit said that there isn’t a right to carry a concealed handgun and established a framework for evaluating Second Amendment cases which said that if you won’t to invalidate a gun control law then that gun control law must be unconstitutional in every circumstance.
It is hard not to write a law in which there isn’t at least one set of circumstances in which the law is valid. This means that any future challenge to any gun law in the Second circuit will have to be a challenge as-applied to the plaintiffs named in the lawsuit.
The SAF concealed carry lawsuit in the 3rd Circuit Court of Appeals was decided after the SAF concealed carry lawsuit in the 2nd Circuit Court of Appeals. The 3rd Circuit looked at the Second Circuit and basically said “Me too!”
The SAF concealed carry lawsuit in the 4th Circuit Court of Appeals simply decided that it wasn’t going to decide but said that if they were to decide then the SAF would lose which is legal babble for “You lose twice in the same appeal!”
On June 16, 2015 an en banc court of the 9th Circuit Court of Appeals will hear oral arguments in which all of the major so called gun rights groups, and many groups you may never have heard of, will tell the eleven judges on the en banc court that California may ban the Open Carry of firearms and they won’t even concede that this is contrary to three US Supreme Court opinions and state court interpretations of the Second Amendment upholding prohibitions on concealed carry going back over two hundred years.
The 9th Circuit en banc court is not bound by any prior decision in this circuit and the eleven judges are free to decide if they want to be bound by three US Supreme Court decisions saying that Open Carry is the Second Amendment Right. California courts have never recognized a right to carry weapons concealed (California has always been an Open Carry state and still is if you count openly carrying unloaded antiques as Open Carry).
The 9th Circuit en banc court could publish a decision which would eliminate any possibility of any Second Amendment lawsuit prevailing in the future and because it is a concealed carry lawsuit and because the US Supreme Court has already said three times that concealed carry is not a right and because the US Supreme Court doesn’t hear cases to correct errors made by the lower courts but waits for two or more Federal courts to come to different conclusions on the law, the decision to come out of next month’s en banc court could hang over our heads for the rest of our lives.
Fingers crossed that the en banc court limits its decision to concealed carry but that hasn’t happened yet and we shouldn’t expect it to happen for the first time next month.
The two cases combined for the purpose of en banc oral arguments are Peruta v. San Diego and Richards v. Prieto.
The Peruta lawsuit is funded by the National Rifle Association. The official state organization of the NRA, the California Rifle and Pistol Association, is one of the plaintiffs in the Peruta case.
The Richards lawsuit is funded by the Second Amendment Foundation (SAF) and the CalGuns Foundation, both of which are named plaintiffs in the Richards case.
There are nearly 40 lawyers registered in the case representing the plaintiffs, defendants, Amici, the state of California and proposed intervenors.
Every single one of them except for Charles Nichols, the President of California Right to Carry, is arguing that Open Carry can be banned.
Charles Nichols was the only one to file an Amicus brief in which he argued in defense of our Second Amendment right. As an Amicus in the case the court can invite him to speak during oral arguments but he does not expect that to happen.
Editor’s note: Charles Nichols contributed to this story.