The Guns of February, A Story of Two Three-Judge Panels

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Next month, in two Federal courtrooms nearly 3,000 miles apart, two separate three-judge panels of the 9th circuit court of appeals will hear oral arguments in two separate lawsuits and then decide whether or not the right to keep and bear arms extends even one inch outside the doors to our homes.

The lawsuit which was filed first in the district courts but second on appeal, Charles Nichols v. Edmund Brown, Jr. et al, challenges California’s bans on openly carrying firearms. The other lawsuit, George Young, Jr. v. State of Hawaii, challenges pretty much all of Hawaii’s weapons laws but the fundamental question in Young v. Hawaii, as it is in Nichols v. Brown, is whether or not we have a right to bear arms outside of our homes for the purpose of self-defense.

"Minuteman" by sculptor Henry Hudson Kitson (1863-1947), dedicated April 19, 1900. Erected 1899. 9th Circuit to decide open carry.
“Minuteman” by sculptor Henry Hudson Kitson (1863-1947), dedicated April 19, 1900. Erected 1899. 9th Circuit to decide open carry. Creative Commons Attribution 2.0 Generic license.

Despite two recent US Supreme Court decisions which held that the Second Amendment guarantees the right of individuals to openly carry firearms, in case of confrontation, for the purpose of lawful self-defense, Federal District Court Judge Samuel James Otero held that firearms are no different than crystal meth and entered file judgment against my California Open Carry lawsuit, Nichols v. Brown, on May 1, 2014. I filed a timely notice of appeal. The State of California asked for my appeal to be stayed pending the resolution of the concealed carry appeal, Peruta v. San Diego. I objected to the stay but it was nonetheless granted.

The stay is now lifted and six years, two months and sixteen days after I first filed my California Open Carry lawsuit, I will finally have the opportunity to argue my case.

In the Young v. Hawaii case, Federal District Court Judge Helen Gillmor concluded that the Second Amendment is confined to the home with equal finality but without characterizing guns as illegal drugs and implying that people who carry guns are no better than, and have fewer rights than, drug dealers and addicts.

Judge Otero also held that racial minorities cannot challenge California’s Open Carry bans until after the bans have been enforced against them. As these are criminal laws, enforcement entails arrest, prosecution and fine and/or imprisonment if convicted.

The courts have long held that one does not have to first break a law in order to challenge the constitutionality of the law. These are known as pre-enforcement challenges. And now we have a Federal judge who published an opinion stating that minorities cannot challenge laws until they are arrested. Normally, the ACLU and the other “liberal” groups would be marching in the streets in protest but since my lawsuit is about the Second Amendment, these left-wing groups have given Judge Otero a pass.

Three of the anti-gun groups have praised his decision and filed briefs opposing this appeal. These groups are The Brady Campaign, Everytown for Gun Safety, and the Law Center To Prevent Gun Violence.

And let us not forget that the NRA/CRPA filed a brief opposing my preliminary injunction appeal which was pending at the same time the NRA lawyers were in court arguing to uphold California’s Open Carry bans and arguing to uphold California’s Gun-Free School Zone Act of 1995.

Significantly, California’s 1967 ban on openly carrying loaded firearms in public was enacted because Black men and women with unpopular views began openly carrying firearms in Oakland California which greatly annoyed the local police and public officials.

When a bill was introduced that was specifically directed at them, they staged a peaceful armed protest within the Capitol Rotunda in protest of the bill, to the annoyance of the California legislators.

I explicitly forfeited my race-based challenge on appeal for two reasons. The court of appeals isn’t required to decide any, let alone all, constitutional claims if it can decide the case on narrower grounds.

In my appeal, Nichols v. Brown, the court of appeals could have simply held that California’s Open Carry bans are unconstitutional because of the impermissible racial animus expressed by the legislature in enacting the original ban back in 1967 without ever addressing my Second Amendment claim.

Before the year is out, the California legislature would reenact the ban and this time claim that race has nothing to do with the new ban because the Black Panther Party for Self-Defense disbanded decades ago.

The other reason I abandoned my race-based challenge is because I am curious to see what the 9th circuit court of appeals does now. The judges have made their own laws, not to be found in the Constitution, that if a claim is forfeited on appeal then the court of appeals does not have jurisdiction to decide that claim.

And yet if the court of appeals affirms the district court judgment on any grounds then the district court decision stands, including its holding that racial minorities cannot challenge laws which entail criminal punishments unless they first break the law.

Nor can the court of appeals simply vacate the decision of the district court and remand for a do-over because the decision by the district court that racial minorities can’t bring pre-enforcement challenges would still stand.

As I said, I am curious to see what the court of appeals does with the overtly racist decision of Judge Otero that racial minorities can’t bring pre-enforcement challenges.

I won’t be bringing it up in oral argument because I explicitly forfeited that claim on appeal. The court of appeals is in a kind of a Catch-22. A Catch-22 of its own making.

This is why I don’t get invited to parties.

There is no way to predict what will happen in either appeal. If these were not Second Amendment cases then Mr. Young’s appeal would simply be remanded for a do-over because he was not represented by a lawyer in the district court and because it is possible for him to amend his lawsuit to state a valid claim and there are obviously a lot of factual disputes argued in the appellate briefs for a jury to decide if the case were sent back to the district court for an opportunity to amend the lawsuit.

Frankly, Mr. Young’s attorney should have filed a motion for a summary reversal and remand years ago, when the appeal was first filed back in 2012.

Unlike Mr. Young, I did study law in my youth and put in an additional year of study before I filed my lawsuit in the district court back in 2011. No criticism of Mr. Young intended but, and with all due respect, by analogy, if one doesn’t know how to repair an automobile engine then one shouldn’t try to repair an automobile engine no matter how well one knows how to drive.

There are no defects in my lawsuit, which the California Attorney General has now conceded in a letter to the court. There are no facts in dispute which means there is nothing for a jury to decide.

I have stated valid constitutional claims and avoided all of the procedural landmines the courts have placed in the path of anyone who attempts to challenge the constitutionality of a law.

All that remains for the court of appeals to do is to decide seven pure questions of law.

Yes, seven. I did not place all of my eggs in one basket. I carefully constructed my appellate briefs to force the court of appeals to consider my Second Amendment claim, and my substantive due process claim, and my equal protection claim, and my vagueness claim, and my run-of-the-mill due process claim, and my Eleventh Amendment claim. And I constructed my appellate briefs so that they cannot decide any single claim in order to avoid deciding the other constitutional claims.

If you counted six that is because the court cannot avoid granting me my seventh claim (listed first in my opening brief) and that is to reverse the dismissal of my challenges to California’s Open Carry bans so that I may challenge the bans in state court, under the California Constitution, should I fail to prevail with my Federal challenges in Federal court.

You see, under the California Constitution, even convicted felons have a greater right to bear arms than they do under the Second Amendment. According to the US Supreme Court decision District of Columbia v. Heller, bans on felons possessing firearms are presumptively lawful which most of the courts have interpreted as always lawful in every case.

Under the California Constitution, convicted felons are prohibited from possessing firearms except for the interval of time they face serious bodily injury. They are not prohibited from openly carrying sheath knives, for example, or from possessing swords, or a bow and arrows.

And, under California law, since I cannot carry firearms openly or concealed, California’s Open Carry bans are subject to what the courts refer to as “strict scrutiny.” Rarely does a law survive strict scrutiny.

As there is no Second Amendment right to concealed carry, travelers on a journey notwithstanding, it does not matter what California or Hawaii does with its concealed carry laws.

Open Carry is the only constitutionally protected manner of carrying at issue in both Nichols v. Brown and Young v. Hawaii.

We can only hope that Mr. Young’s attorney does not waste the 15 minutes of time allotted to him in oral argument “explaining” why the US Supreme Court and the 9th circuit court of appeals both held that there is no right to concealed carry.

Fortunately, only one of us needs to convince two of the three judges assigned to our panel that the right to openly carry a firearm for the purpose of self-defense extends outside the doors to our homes for both of us to ultimately win.

If Mr. Young wins his appeal by two or more of the three judges assigned to his appeal publishing a decision that the right to bear arms is not limited to the interior of one’s home then that decision applies throughout the 9th circuit.

The same is true in my appeal, Nichols v. Brown. A win against the California Open Carry bans is a win against the Hawaii policy of not issuing licenses to openly carry a handgun except for persons employed in the protection of property and people (security guards and bodyguards).

Oral arguments in both appeals will be streamed live on the 9th circuit court of appeals YouTube channel.

“[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809