Lost in the perennial argument over gun-free school zones and black rifles these past weeks were two cases argued in the 9th circuit court of appeals, the outcome of which will decide whether or not there is a right to keep and bear arms outside of our home. Specifically, whether or not there is a right to openly carry firearms in public.
The first appeal was argued on Monday, February 12, 2018, in Hawaii before Federal Circuit court judges O’Scannlain, Ikuta and Clifton, George Young Jr., v. State of Hawaii. The second appeal was argued on Thursday, February 15, 2018, in Pasadena, California before Federal Circuit court judges Berzon, Bybee and Federal district court judge Gleason sitting by designation as the third member of the panel of judges in Charles Nichols v. Edmund Brown, Jr.
The Threshold Question
The threshold question in both is whether or not the enumerated, fundamental, individual Second Amendment right exists outside the interior of our home.
You might think that nearly ten years after the United States Supreme Court published its first in-depth decision which held that the Second Amendment guarantees the right of the individual to keep and bear arms, including handguns, for the purpose of lawful self-defense that the lawyers for the so-called gun-rights groups would challenge laws which infringe on that right.
For the most part, you would be wrong.
In the 9th circuit, the National Rifle Association through its state organization the California Rifle and Pistol Association spent the better part of a decade arguing that states can ban Open Carry in favor of concealed carry despite the clear holding of the United States Supreme Court decision in District of Columbia v. Heller which held that Open Carry is the right guaranteed by the Constitution and that concealed carry is not a right. In a separate lawsuit, the Second Amendment Foundation in conjunction with the CalGuns Foundation made the same argument, that states can ban Open Carry in favor of concealed carry.
Never, in our Nation’s history, has a Federal court held that something which has always been recognized as a right could be banned in favor of something which has never been recognized as a right.
Nor do the courts require that we surrender one right in order to exercise another right.
Both cases lost before an eleven-judge en banc panel of the 9th circuit court of appeals which cited both an 1897 decision of the US Supreme Court which held that concealed carry is not a right as well as the 2008 decision of the US Supreme Court which likewise held that concealed carry is not a right.
All Concealed Carry Lawsuits Lost on Appeal
There were a baker’s dozen of concealed carry cases filed in the 9th circuit. They all lost. They did not lose because the court of appeals held that the Second Amendment is limited to the home. They lost because these lawsuits claimed a right to concealed carry in public which is a very different question.
As fate would have it, Mr. Young did not specifically seek a license to carry a weapon concealed in public. He asked for a license to carry weapons openly or concealed. If he had sought only a license to carry weapons concealed then he never would have made it to oral argument, the dismissal of his case with prejudice would have been affirmed in an unpublished decision.
My lawsuit, Nichols v. Brown, has always been a pure Open Carry case. A fact which the State of California conceded in both its briefs and in oral argument.
The district court judge in Young v. Hawaii held that the Second Amendment was limited to one’s home. The district court judge in my case, Nichols v. Brown, held that firearms are no different from crystal meth and that people who carry firearms are no different than drug dealers even if those firearms are carried openly in places where it is legal to openly carry firearms and even if those firearms are carried in the curtilage of one’s home or in one’s home if one’s home happens to have wheels such as in a trailer or camper attached to a motor vehicle.
It is a fact that neither I, nor Mr. Young’s attorney, is going to win an award for our oratory skills but we both managed to survive oral argument without scuttling our cases.
Stupid Lawyer Mistakes
A little-known fact and, apparently little known to attorneys as well, is that concessions made during oral argument can be fatal to one’s appeal.
No matter how perfectly argued in one’s briefs, a slip of the tongue during oral argument can turn what should have been a win into a loss.
It quickly became clear the reason that I, someone who is not a lawyer and who has never been a lawyer, was allowed to participate in oral argument before the 9th circuit court of appeals (the first time in over 20 years) was that the Court hoped that I would slip up and make a concession during oral argument which would prove fatal to my appeal.
Make No Concessions!
I made no concessions. I refused to even accept the premise of the questions put to me for the sake of oral argument. The California state’s attorney, however, made several reluctant concessions. We will have to wait and see whether or not the panel of judges assigned to my appeal holds the state to those concessions. Their own judge-made law says that they must hold the state’s attorney to his concessions made during oral argument but for some reason, Second Amendment cases are treated disfavorably.
The government attorney for the County of Hawaii completely flubbed his oral argument. Not only did he make spectacular concessions, he came to court woefully unprepared to argue his case.
A wise attorney will never, ever, make a concession. Not for the sake of argument and not even concede the time of day or day of the week. And a wise attorney will never, ever come to court unfamiliar with the facts of his case as occurred in the Young v. Hawaii oral argument.
One can never predict the outcome with certainty of a case based on the oral argument but if the oral argument in Young v. Hawaii is any indication then Mr. Young will win his appeal. The people of Hawaii will be able to obtain handgun Open Carry licenses.
At the beginning of my oral argument, I advised the court that the Young v. Hawaii case had been taken under submission for a decision. Under 9th circuit rules, this gives the Young appeal priority over my appeal and under the same rules, the decision in Young v. Hawaii will be binding on the three judges assigned to my appeal.
However, if Mr. Young loses then his loss is not dispositive on all of my claims as I did not limit my claims to openly carrying firearms in public under the Second Amendment. Notwithstanding my “in-home” claims absent in the Young v. Hawaii case, I brought various other constitutional challenges to California’s Open Carry bans.
We Will Likely have a Binding Decision in the 9th Circuit
Although Mr. Young’s appeal could be disposed of in an unpublished decision which, win or lose, would not be binding on the three-judge panel assigned to my appeal, Nichols v. Brown, it appears that there will be a binding decision published in the Young v. Hawaii case.
I say this because 12 days after oral argument took place in my appeal, the Court issued an order vacating the submission of my appeal for a decision pending the decision in Young v. Hawaii.
This would not have happened if the three-judges assigned to my appeal believed that the Young v. Hawaii case would be disposed of in a non-binding decision and nobody is in a better position to know that then the three judges assigned to my appeal.
There is absolutely no way of knowing how long it will take for a decision in Young v. Hawaii to be published. If I were a betting man then I would bet on a decision being issued this year or early next year at the latest. I certainly would not be surprised if we had a decision within a few months.
And Then What Happens?
Whichever way it goes, the losing side is going to file an en banc petition. If the en banc petition is granted then the three-judge panel decisions will be vacated and the appeals will be heard once again, this time before an eleven-judge panel.
Which will restart the clock for both oral argument and for a new, en banc, decision.
After that, the losing side(s) have the option of filing a cert petition with SCOTUS.
Gun Laws don’t Go-Away on their Own
Keep in mind that a win by Mr. Young would not have had any effect on California’s Open Carry bans because it would take a separate lawsuit to overturn those bans. A lawsuit I filed over six years ago thereby saving those who would overturn the bans a lot of time and money.
And that lawsuit would never have come from the so-called gun-rights groups. After losing its appeal in Peruta v. San Diego, you know, the NRA case that argued that states can ban Open Carry in favor of concealed carry, the National Rifle Association filed a new case in the district court.
That case, Flanagan v. Becerra, also argues that states can ban Open Carry in favor of concealed carry.
Because that argument worked so well the first time around.
Unsurprisingly, none of the other so-called gun-rights groups have filed a California (or Hawaii, or any state) Open Carry lawsuit.
Nor will they, ever.