Charles Nichols – President of California Right To Carry – writes:

On June 16, 2015 before an en banc panel of eleven judges of the 9th Circuit Court of Appeals, Circuit Judge Carlos Bea asked the California Solicitor General a yes or no question.  Does the core right of the Second Amendment extend beyond the home?  After hemming and hawing for a moment the Solicitor General conceded that it is difficult to read the Heller decision and come to the conclusion that the Second Amendment does not apply outside the home . . .

The Solicitor General added that it is crucial in this case (Peruta v. San Diego/Richards v. Prieto) to read the Heller decision to mean that there is no right to carry weapons concealed in public.

“[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

“Like most rights, the right secured by the Second Amendment is not unlimited… For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816

On November 30, 2011 I filed a Federal Civil Rights lawsuit seeking to overturn California’s 1967 ban on openly carrying loaded firearms in public.  I subsequently amended my lawsuit to challenge California’s new bans on openly carrying modern, unloaded handguns and long guns in public.

Thanks to two California Appellate Court decisions which held that the private property exemption to the 1967 ban meant that one could “have” a loaded firearm on his property but not carry a loaded firearm on his property and another which held that the private property exemption might apply to some Californian’s whose private residential property was fully enclosed by a tall, sturdy fence or other significant barrier to entry by the public, all that was (and is) necessary for me to prevail in my Open Carry lawsuit is for the 9th Circuit Court of Appeals to conclude that I have the right to openly carry a loaded firearm on the doorstep of my home.  Even if that loaded firearm is merely a flintlock rifle or shotgun.

The Solicitor General not only conceded that the “core right” of the Second Amendment extends to the area surrounding one’s home (the curtilage) the Solicitor General conceded that the core right of the Second Amendment extends beyond the curtilage of one’s home.

We now wait for the en banc decision in Peruta v. San Diego to be published.  If the en banc decision accepts the concession by the California Solicitor General only in part, that the core right of the Second Amendment includes the curtilage of one’s home then I win my Open Carry lawsuit.  I will have to file an appropriate motion but other than that, there will be no need for either me or the Governor and Attorney General to file any briefs or argue before a three judge panel, let alone an en banc panel.

On the other hand, the en banc panel in Peruta v. San Diego could reject the Solicitor General’s concession and say that the Second Amendment is limited to the inside of the home but if it extends beyond the home, there is no right to carry a concealed weapon in public.  The 2nd, 3rd, and 4th Circuit Court of Appeals did this tap-dance routine and cert was denied in all three of those cases.

As anyone who bothered to read the dissent to the denial of cert in Jackson v. San Francisco well knows, the US Supreme Court will not hear a Second Amendment case until the Federal Appellate Courts (or state Supreme Courts) disagree on the Second Amendment right to the degree that it creates a split that only the US Supreme Court can resolve.

If I lose my appeal then there is a clear split between the 7th Circuit and the 9thCircuit on the Second Amendment.  Do you remember that 1967 ban on openly carrying loaded firearms in public, a ban which the NRA helped write and has been defending these past five years along with the California Gun-Free School Zone Act of 1995?  Well, California copied and pasted its 1967 ban from an Illinois ban the 7th Circuit struck down in 2012.

When Peruta/Richards lose their en banc appeal, there will not be a circuit split.  The 7th Circuit decision in Moore v. Madigan made it perfectly clear that, as per the Heller decision, Illinois can ban concealed carry and anything that can be banned is not a right.

If SCOTUS is going to hear a Second Amendment carry case it will be an Open Carry case unless and until some Federal court of appeals or state supreme court holds that the Second Amendment guarantees a right to carry a concealed handgun in public.

Every state court and every Federal court which has had a concealed carry case come before it has held that there is no right to carry a concealed weapon under the Second Amendment whereas Federal and State Supreme Courts have held that there is a right to openly carry a firearm for the purpose of self-defense in public under the Second Amendment.

Moreover, unlike the brain-trust of Second Amendment lawyers hired by the so-called gun rights groups whose sole argument is that, contrary to longstanding precedent, states can ban Open Carry, I did not limit my lawsuit to the Second Amendment.  I raised multiple challenges completely independent of the Second Amendment.  And I only need to prevail with one of my challenges for me to win my California Open Carry lawsuit.

Simply put, if I lose then multiple circuit splits are created not only regarding the Second Amendment but the Fourth and Fourteenth Amendments as well.

And do you really think that even the most dyed in the wool liberal on either the 9th Circuit Court of Appeals or the US Supreme Court is going to uphold a 1967 ban on openly carrying loaded firearms which was enacted specifically to prevent Blacks and other minorities from openly carrying loaded firearms for the purpose of self-defense?

87 Responses to Is Open Carry the Real Battleground for Bearing Arms?

  1. “Is Open Carry the Real Battleground for Bearing Arms?”

    Does the civil war start right now?

    Before you speak, Persian, know that in Sparta everyone, even a king’s messenger, is responsible for the words of their voice. Now…what message do you bring?

    • How bad are we chucking it today?

      Will you beat me to chucking it ‘all the way’?

      If you can live without this little piece of our agreement. I can live without the rest.

        • I’m not sure but I think mostly is – “I’m, Charles Nichols a windbag and full of awesomeness. The NRA sucks and I’m great and you can tell because I’ve been killing it in Ca for many years while the NRA has done nothing to protect the 2nd”.

          And send money.

        • You sound like you need someone to “show all their work.” Can’t you (we) just mentally skip to the end of the argument. Do a little “War Games” WOPR glory hole action if you need to. Play (it out) with yourself a few million times.

          Or, jump to the end of the story. History has shown how it (these arguments) ends. You want to replay the ugly interim parts. I want to look you in the eye and find with some level of certainty that you don’t. The 9th Circuit wants to argue that they have the power and authority to decide something that human nature and physics has made ironclad. We are also stuck with the idiots on the other side of the legal battle essentially abdicating to that Court’s belief, and compelling the rest of us to settle (for now) on whatever the Court decides (which then hampers future assertions to the contrary by precedent).

          But, again, history has already decided what the value is, and what liberty is, and what people will stand, and for how long, and what they will do to such people and each other when we stray over the boundary of common cause. America is a great country because we stand ready to chuck everything to prevent us from sliding off into the territory where we let self-important a-holes over step their bounds and attempt to decide for us something that they should not go near. The Earth has too many modern and current examples of where these things have not been checked, and you cannot point to one of them that is not littered with some or expansive violence. If you want to get there eventually, I say let’s go there now. I don’t want you to spring some sh_t on me when I’m 90.

          “They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But
          when shall we be stronger? Will it be the next week, or the next year? Will it be when we
          are totally disarmed, and when a British guard shall be stationed in every house? Shall we
          gather strength by irresolution and inaction? Shall we acquire the means of effectual
          resistance by lying supinely on our backs and hugging the delusive phantom of hope, until
          our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper
          use of those means which the God of nature hath placed in our power. The millions of
          people, armed in the holy cause of liberty, and in such a country as that which we possess,
          are invincible by any force which our enemy can send against us. Besides, sir, we shall not
          fight our battles alone. There is a just God who presides over the destinies of nations, and
          who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone;
          it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base
          enough to desire it, it is now too late to retire from the contest. There is no retreat but in
          submission and slavery! Our chains are forged! Their clanking may be heard on the plains
          of Boston! The war is inevitable–and let it come! I repeat it, sir, let it come.” (Patrick Henry Speech to the Continental Congress March 23, 1775) Emphasis added.
          [http://www.historyplace.com/speeches/henry.htm]

  2. I would prefer concealed carry. But if the court paints CA into a corner and they have to let me carry openly….. 🙂

    • It is illegal to carry openly in any urban area of California, loaded or unloaded, handgun or long gun. With permission, you can carry concealed handguns. Unless the Ninth does what a bunch of people anticipate–which is to punt because the open carry ban was enacted AFTER the trial court decision and was therefore not considered until the case got up on appeal. That will add at least a few more years of delay–I expect that they will say that the right to carry outside the home is not unlimited, and therefore the State may regulate the exercise of that right in the public interest. Just like the courts in the 2, 2 and 4th circuits said. Since carrying guns in public increases the risk of harm and criminal misconduct (no citation to this proposition will be given), the state may condition exercise of that right on a showing of an increased need (“good cause”) and appropriate training, and although this means that the vast majority of people in Southern California will be unable to exercise their Second Amendment rights outside the home, the “may issue” system is not an “unreasonable burden” on the Second Amendment. The decision will not withstand rational analysis, but then again neither did the decision in Jackson (which spit on Heller), or the decision in Maryland that said that the mere recitation of the phrase “it’s in the public interest to limit guns in public” was enough to outweigh constitutional rights, even in the absence of any evidence supporting the proposition.

      Charles is right about one thing–there is no split, and if the Ninth reverses, there will still be no split. And the sad thing is that Peruta is the last chance (absent a change in law somewhere else) for the Court to address the issue presented, because there is no other circuit that has a state with a “may issue” system of permits, and therefore no further opportunity for the issue to arise..

      • That’s not true New Jersey and I think New York are “may issue” (good luck getting a “may”), so there still is at least one circuit where a suit could be brought.

    • No people of color carry firearms , Just us red neck , hillbilly , racist , rebel flag lovin , car racin , steak eatin colorless folk . Everyone ready knows that . People of color just get killed by em .

    • What I came here to say. The SCOTUS ruled in 2012 that DOMA was unconstitutional because the federal government did not have the right to define marriage. Then, in 2015, the SCOTUS decided that all state marriage laws were unconstitutional because the federal government has the right to define marriage. After that, there can be no expectations of either case or statutory law having any impact on judicial decisions in this country. There are still judges who respect the rule of law, but there are far too many lawless judges sitting at every level. Rule of law is gone.

      For the record, I’m fine with the result of the recent ruling, since I feel same sex couples should be able to get married if they wish. But I am horrified by the way it was done.

      • I’ll respond to the DOMA ruling. I am an ordained minister who is not here to pick an argument. I am ordained in an independent Baptist Church but view myself as a biblical pastor. Our church welcomes all to attend but (and there’s that”but”word), neither I nor the senior pastor are able to perform a marriage for guy couples. Doing so biblically is a violation of God’s word. The SCOTUS may have ruled gay marriage legal, however fortunately they did not attempt to define marriage. And while there are “liberal” churches that will perform gay marriage, most Baptist and Reformed Christian churched ( founded under the Great Commission) will not.
        I know I’ll get beat up about it but that’s the way it goes. Sorry for such a long post…

        • Sorry Steve , no matter what they are currently saying , There will be homosexual couples coming to your church and asking you to preform a marriage ceremony for them ( under God ) and when you refuse , there will be old Uncle Sam to try and persuade you that your in violation of Federal Law and the threat of loss of tax exempt status along with a probable civil lawsuit is forthcoming . The real motive behind all these actions is to tear down the God of Isaac , Jacob , and Abraham . Simple back door antics by the original deceiver . You already know the rest of the story .

        • If the .gov can force a bakery to bake a cake for a homosexual couple, what makes you think they won’t try to make pastors marry homosexuals? Or do you think they will try?

        • Despite the doom and gloom wailing and teeth nashing, nobody cares. Churches aren’t required to marry gays just as they’re not required to marry atheists, divorcees, etc. Additionally, the vast majority of gays don’t even care to get married in a church. This non-believer got married by a friend who was ordained by the state in a completely non-religious ceremony.

        • This is nothing new. Catholic priests have been picking and choosing who can marry for centuries, and it will not change now. If you’ve come to believe that the gov’t. will force churches to marry gay couples, you’ve fallen victim to a scare tactic. This was about legality, not religion.

        • As stated, gay marriage is coming to a church near you. The purpose is that God-fearing Christians make up the base of the Republican Party, and forced gay marriage will weaken the base. This is a coordinated political strategy to erode that Christian base by having churches either split, disintegrate, desegregate (sexually)or lose tax except status. All of these outcomes are acceptable to the libs.

          The other 2 simultaneous attacks are on southern pride (they’ve been fighting “the flag” for decades) and the RKBA. These 3 groups represent the main pillars of the Republican Party, and if even slightly eroded, leave the democrats with no opposition.

      • The rulings are actually consistent. The Federal Government is not in the marriage business. You do not get a federal license to wed. But states are in the marriage business, and the existence or nonexistence of a lawful marriage is critical to a proper resolution of many social/legal issues as to ownership of property, inheritance, children, yada. And the 14th Amendment says that if the sates are going to be in the marriage business, then they have to treat all comers equally. The issue is no longer a religious one, merely a question of just and equal application of the civil law. Personally, I have no problem with that, and indeed it makes it easier for the courts to apply the civil law to issues before them, since the rules are the same for everyone before them.

        And yes, I think that the ban on plural marriages will be next on the chopping block. They were banned solely because of the Christian values of those in control of government that such arrangements were sinful–even though the Bible is full of them. And no I don’t care about that either, although I can’t image why anyone would want more than one at a time. Heck, some people around here can’t seem to even hold on to one at a time, much less two or more….

      • Old Ben, I’m with you on that, especially the concern for the process.
        But I’d suggest avoiding saying governments- Federal or state or whatever- have “rights”.
        One of the very best things about America is that under our laws, governments never have rights, only “powers”.
        Only human beings have rights. (Which are inherent- not external.)
        A beautiful concept.

      • Yup. Rule of law has been reduced to a facade. But as long as they feel the facade is needed the is hope.

    • It depends on which justices were picked for the en banc panel. Some 9th Circuit judges are actually okay for our rights.

      • Members of En Banc Court: Chief Judge Thomas, Judges Pregerson, Silverman, Graber, McKeown, W. Fletcher, Paez, Callahan, Bea, N.R. Smith and Owens.

        Are these the droids we are looking for?

      • Thomas dissented from the original decision, while Callahan joined in the opinion. So, they should cancel each other out.

        FYI, most of the panel was appointed by Clinton. I’m sure they were well-vetted to hate guns. And us. There are three Bush 41 appointees, one Reagan appointee and one Obama appointee.

      • Except for the Chief Justice, whose appointment is automatic, all the other members are to randomly selected. And it would seem, as others have commented, that Justice Thomas waited until he became Chief Justice (an administrative post that rotates on a scheduled basis) to request an en banc rehearing to guarantee that he was on the panel. There is not need to “fix” the panel through the selection process–the demographics are such that most members are Democrats.

  3. “Federal and State Supreme Courts have held that there is a right to openly carry a firearm for the purpose of self-defense in public under the Second Amendment.”

    Well then, call me confused. How does Illinois get away with banning open carry? Our Concealed Carry License doesn’t even allow it.

    • Illinois gets away with banning Open Carry today for the same reason that Illinois got away with banning both concealed and Open Carry for so long. Nobody has challenged Illinois’ new Open Carry ban. We know that none of the so called gun-rights groups are going to challenge Illinois’ new Open Carry ban, they lobbied for Open Carry to be banned.

      Law School 101 – Judges can’t overturn laws on their own. They need for someone to first file a lawsuit and to say all the “magic words” in the right order and then they might just consider overturning a law.

  4. Considering that the intent of the 2nd Amendment was to keep available in civilian markets all arms that the government infantry would use or might use, I’d say we’re in a lot of trouble if open carrying a revolver is the front lines of the war. If the 2nd Amendment were being adhered to your local gun shop would have shoulder launched guided missiles available next to the claymores, belt fed automatics, and hand grenades.

    And instead we’re arguing over whether or not we are ALLOWED to carry a .38 snub nose on your hip. Or whether we can buy larger than 30 round magazines for our semi automatic only rifles. Or whether we can buy a muffler for the end of the barrel that lowers the decibel level on a gunshot to just below the level of permanent hearing loss but is still louder than a rock concert. Or just how much paperwork we should we have to go through to make a rifle less powerful by shortening the barrel.

    • I say A M E N to that .
      Now I can leave this to the better articulated and better informed and get back to business .
      Lowell said it all concisely and with few words . Hats off brother and God bless .

    • Exactly. The People have allowed themselves to be maneuvered by the government into arguing minutiae while the substantial protections of the right to keep and bear arms bleed out.

  5. California is not stupid. It is much easier to shame firearm owners if they have to be out in public. It becomes much harder to ignore “No Carry” signs if you are forced to open carry. It is much easier to pinch folks who mess up and walk too close to a school for too long. They’ll concede open carry, and if they win, they’ll allow it again. My guess is that they think it will be easier to contain that way. If my only recourse was open carry in CA, I would do it as often as possible. What they don’t realize is that will only help us normalize things.

    • “What they don’t realize is that will only help us normalize things.”

      Consider the opposite scenario. Are we PotG the only ones clever enough to war-game this outcome? That’s hard to imagine. The Antis must have war-gamed this problem out with the same intensity that we are applying and come to the same conclusion.

      We are playing a game of chicken: the path to OC and the normalization of arms in public; or, the path to Shall-Issue and the demonization of guns. Can the demonization of guns survive if everyone in the 9th 2’nd, 3’rd and 4th circuits saw someone armed every day in the public square? What if it became fashionable to defy authority by OCing? Why was the OC fight in TX so prolonged? To admit that OC is a right on a par with speech, press and assembly seems too much for the establishment to bear.

      Wouldn’t it be far easier for the 9th to reason its way to uniform Shall-Issue throughout CA (plus HI)? That would pass the buck to SCOTUS which could stall for more time without resolving the dispute of Shall-Issue for the 2nd 3’rd and 4th Circuits.

    • If this happens, be prepared for a tremendous amount of police intervention, just like there was the last time around. The soccer moms will be on their cell phones, screaming that there is a man with a gun at their local Starbucks and ohmygodohmygod someone just has to do something! which will result in you being rolled up on by five or six cruisers from which cops will pour with their guns drawn demanding to know why you think it is necessary to carry a gun. Some will be reasonable, others will force you to the ground, take your gun to “run it to make sure it is registered and not stolen (which they have no right to do), and pretty much making a mes of your day for the next half an hour. They know what they are doing–they are “encouraging” you to not carry.

      • Mark N., you are overlooking one important thing. If I prevail in my Open Carry lawsuit then police no longer have “qualified immunity” to fall back on. The California courts have long since held that the mere sight of a firearm in a prohibited place does not constitute probable cause for an arrest of former Penal Code section 12031 (now PC 25850 in part).

        Civil rights lawsuits such as mine don’t have a payday waiting for either a lawyer or his client at the end of a line. The type of police misconduct you describe does have a payday waiting for a competent ambulance chaser.

        • While mere possession doesn’t warrant arrest, if open carry becomes unrestricted (I say that term loosely) you better believe that e-check harassment will be priority number one. That’ll take another 10 years to fight.

  6. Open carry is the cornerstone of the right to keep and bear arms. One simply cannot conceal some of the arms necessary to the security of a free state. By accepting an argument in which open carry can be banned while concealed carry is the expression of the right then that is reducing the exercise of the right to keep and bear arms to little more than defense against ordinary crime. That is NOTHING close to the truth of the matter. The individual right to keep and bear arms deters enemies, foreign and domestic, from depriving us of our liberties. Defense against ordinary crime is important but it would not even be an issue if government were held to the proper constitutional restraint of shall not be infringed. Some of those same arms you would be bearing as a deterrent to tyranny (from within or without) serve a purpose in defending against ordinary crime. The inverse is not necessarily true. Those arms suitable for defending against ordinary crime may not be very effective at defending against tyranny.

  7. The pinhead in the video is technically correct: the second amendment does not confer a right to carry outside the home. It doesn’t confer anything; it protects that right, among others.

  8. Do you remember last year in May of 2014 when the NRA published an NRA-ILA alert in which it said that Open Carry activists were “weirdos” and then published a video retraction in which the NRA claimed to support Open Carry? -> https://youtu.be/WqeVj7A3bwg

    Did you watch last month when the NRA lawyer Paul Clement told eleven judges on an en banc panel of the 9th Circuit court of appeals states can ban Open Carry? -> https://youtu.be/MRgTihlLOHk

    The NRA lied about its support for Open Carry. What does this say about the members of an organization whose leadership spits in your face and then asks you for donations so that they may continue to spit in your face?

    We already know that the opponents of Open Carry are immoral, we’ve known that for centuries. We’ve also known that the best way to fight evil is to not become evil.

    Stop giving money to these so called gun-rights groups who oppose the Second Amendment Open Carry right. Which is pretty much every group you have ever heard of and a few you haven’t.

    • That’s not what Clements said. He said you can ban open carry if you do not prohibit concealed carry, or you can ban concealed carry if open carry is protected–you just have to allow carry in some fashion. Which is is EXACTLY what the original Peruta panel decision says.

      In fact, you have misrepresented what the Supreme Court in Heller said too. The Supreme Court did NOT hold that “[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.’ ” this was a quotation from another case, and it makes up no part of the actual Heller decision, nor has any subsequent court so read it, all of them concluding that the right to carry outside the home is unexplored territory in the federal court system.

      • Mark N., you still do not understand how our courts work. First of all, the 7th Circuit in Moore v, Madigan read the Heller decision to say that Open Carry is the right guaranteed by the Second Amendment and that concealed carry is not a right, which is why the 7th Circuit said concealed carry can be banned. The 10th Circuit Court of Appeals had no trouble in the Peterson v. Martinez case reading the Heller decision to say that concealed carry is not a right, as per the Heller decision.

        In fact those two cases you are dismissive of, Nunn and Chandler, which were cited in the Heller decision as perfectly capturing the meaning of the right to keep and bear arms has been cited in every Federal circuit upholding prohibitions on concealed carry. To add icing to the cake, both Nunn and Chandler were recently reaffirmed by the supreme courts of Georgia and Chandler to mean exactly what SCOTUS said they mean – that Open Carry is the right guaranteed by the Second Amendment and concealed carry is not a right.

        I’ve added a couple of citations from the dissent in Heller which also read the majority decision to say that concealed carry is not a right. All nine justices agreed that there is no concealed carry right, all nine justices read the majority decision to say that Open Carry is the Second Amendment right and that concealed carry can be banned.

        It is funny when you say that I misrepresent what the NRA said. Last year the NRA said it supports Open Carry, last month the NRA told the 9th Circuit en banc court that states can ban Open Carry. I’ll provide the links again but the fact that you are not hearing the NRA to say exactly what it said explains volumes about your inability to read the Heller decision to say exactly what it said.

        https://youtu.be/WqeVj7A3bwg

        https://youtu.be/MRgTihlLOHk

        Concealed carry is of no use to me, I don’t carry a purse. Besides, Open Carry is the right guaranteed by the Constitution, concealed carry can be banned.

        http://CaliforniaRightToCarry.org

        “[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

        “[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.

        “In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right…Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had 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

        “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251…” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816

        “But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons…” Heller dissent at 2851

        “I am similarly puzzled by the majority’s list, in Part III of its opinion, of provisions that in its view would survive Second Amendment scrutiny. These consist of (1) “prohibitions on carrying concealed weapons”…” Heller dissent at 2869.

  9. Not exactly. Open carry is perhaps the “traditional” right, but times change. I no longer need a printing press to express my opinions either. Most of this sounds like sour grapes.

    If I were a betting man (and I am), I will take a Clement’s or Gura’s briefs over Nichols’ any day of the week. My guess is that results oriented reasoning knows no bounds, so a liberal would ban guns because Guns! regardless of history. Moreover, Nichols is wrong on some points – the permit in MD challenged to the 4th circuit covers open *and* concealed carry (it is a wear and carry permit). And if you think there is a right to openly carry a rifle or shotgun in Baltimore, please do try it. The Wrenn lawsuit ought to also cover this for D.C.

    • You clearly do not understand how the legal system works. Courts are bound by prior precedents and only the US Supreme Court can overturn one of its precedents. SCOTUS certainly had the opportunity in both Heller and McDonald to overturn the longstanding precedents which held that concealed carry is not a right but also held that Open Carry is the right guaranteed by the Second Amendment of the Constitution.

      Instead of overturning these long standing precedents against concealed carry, SCOTUS reaffirmed them and cited two cases, Nunn and Chandler to which it said perfectly captured the meaning of the right to keep and bear arms.

      I have an advantage that the NRA, CRPA, SAF, CalGuns.nuts lawsuits do not have. When they lose there is no circuit split. Should I lose then the 9th Circuit will have created multiple circuit splits. If any 2A case is going to be heard by SCOTUS then it is mine, not theirs.

      The MD lawsuit brought my the SAF/Alan Gura argued for concealed carry even though the statute itself did not differentiate between concealed and open carry. By doing so Gura made his lawsuit a concealed carry lawsuit. Also, the 4th Circuit limited its non-decision decision to handguns, not long guns.

      Maryland does not prohibit the Open Carry of long guns and the Open Carry of long guns is a right. If there is some police officer or other person charged with enforcement of MD gun laws who disagrees then take him to court and seek an injunction.

      I did here in California and three and a half years later the California Solicitor General concedes that I have the right to openly carry firearms beyond the curtilage of my home. And all I ever needed to win my Open Carry lawsuit was for the courts to conclude that I have the right to openly carry a loaded firearm in the curtilage of my home.

      http://CaliforniaRightToCarry.org

      • Charles, for someone who is not a lawyer and has no record of success in the federal courts, I don’t think you are the person to be lecturing anybody about the law or how the court system works. And the simple fact is that you are dead bang wrong in your analysis. The issue of concealed carry was not before the court in Heller, nor were the decisions of the state court cases that you cite. Rather, these cases were discussed as part and parcel of the court’s analysis of the scope of the Second Amendment, as described in earlier cases in an area where there is an absence of US Supreme Court authority. The fact that the Court mentioned or discussed these cases do not elevate them into a holding of the Court, much less binding precedent. Further, the US Supreme Court is “bound” by no precedents other than its own; and even then, stare decisis is a policy, not an unbreakable rule, to promote certainty in the law, and the Court is free to reverse itself it the circumstances and justice demand it.

        I have not seen any published decision–which is the only thing that counts to lawyers and courts alike–saying that the residents of California have a “right to carry beyond the curtilage of their homes.” I think that premise is generally accepted except in LALA land based on a holding by some idiot Superior Court judge who probably flunked Property in law school, and failed to recognize that whether my property is fenced or not, if I have the right to tell you to get the hell off, it is private property, not public or “quasi-public” property to which rules o carry in public apply. [The case involved a black male carrying a concealed firearm while standing in the driveway to his house. His conviction was affirmed for the reasons described–that he was “in public” even though he was on his own land, because there was no barrier or gate on his property which barred entrance by “the public.”]
        The real issue is not whether you have the right to tote guns around your property, the issue is whether people have that right in public, openly or concealed, with or without governmental restriction or licensing., and even more specifically, in urban areas where the need is greatest and where such practices are now banned.

        • Mark N., given that you haven’t a clue as how to even look up a case you really don’t have a right to be casting stones at my Open Carry lawsuit.

          The fact is the California Supreme Court, in a concealed carry case, adopted Nunn as its common law right to carry back in 1924 and no prior or subsequent California court has held that there is a right to carry concealed either under Article I, Section 1 of the California Bill of Rights or under the Second Amendment of the United States Constitution.

          Every single state court which has interpreted the Second Amendment to guarantee an individual right has also held that Open Carry is the right and that concealed carry is not a right. Every single one.

          You can chant the NRA/SAF/CalGuns.nuts mantra every day of the week and twice on Sunday but it isn’t going to change these prior precedents upholding prohibitions on concealed carry dating back over 200 years.

          For the record, my loss in the district court was inevitable given the judge I was dealt. Fortunately, California Attorney General Harris let the district court judge argue her case for her the end result is that the State of California is now screwed on appeal. The State is procedurally barred from raising any defense on appeal it did not raise in the district court. The burden of proof was on the state to justify its Open Carry bans, the state did not file a single shred of evidence or submit a single declaration, expert or otherwise, in support of its position. The conclusion/argument of the district court judge/state is that there is no right to carry outside of the home – period.

          The 7th Circuit said that there is a right to openly carry outside of one’s home and now so does the State of California. Procedurally I win, Constitutionally I win. Procedurally Peruta/Richards lose. Constitutionally Peruta/Richards lose.

          Concealed carry is of no use to me, I don’t carry a purse. Besides, Open Carry is the right guaranteed by the Constitution, concealed carry can be banned.

          http://CaliforniaRightToCarry.org

          “[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

          “[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.

          “In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right…Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had 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

          “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251…” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816

          “But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons…” Heller dissent at 2851

          “I am similarly puzzled by the majority’s list, in Part III of its opinion, of provisions that in its view would survive Second Amendment scrutiny. These consist of (1) “prohibitions on carrying concealed weapons”…” Heller dissent at 2869.

      • The Supreme Court only rules on very narrow issues, and carry outside the home was not before it. It also likes to see issues percolate in the lower court first.

      • You clearly do not understand how the legal system works.

        You mean SUPPOSED TO WORK. We have lower courts violating case law all the time. All the time. It’ll get corrected only if the plaintiff has the money to pursue to a Court of Appeals.

        • Danny Griffin, the court of appeals is the least expensive part of a civil rights lawsuit particularly in the Federal Central District of California where unrepresented litigants are prohibited from filing their briefs electronically.

          From the day I first filed my complaint in district court (November 30, 2011) to the day I filed my notice of appeal (May 27, 2014) the printing and postage alone cost me several thousand dollars.

          And of course the courts do not make it easy for unrepresented litigants. Most of the grunt work is researching case law and writing briefs which is done by paralegals, not lawyers. California prohibits paralegals from working for anyone but lawyers.

        • California prohibits paralegals from working for anyone but lawyers.

          Restraint of trade?!!!

    • Not exactly. Open carry is perhaps the “traditional” right, but times change. I no longer need a printing press to express my opinions either. Most of this sounds like sour grapes.

      How would the People bear arms in defense of their liberties if they could only carry concealed? Not all of the arms necessary to the security of a free state can be concealed.

      You dismiss open carry with “but times change.” Do you honestly believe that the right to keep and bear arms is only about defense against ordinary crime? What about the 2A, is that just about defense against ordinary crime? Or, do you believe that old notion of the People being armed in defense of their liberties is outdated because “times change”?

      • He is certainly correct about times changing. It used to be that anyone could carry a gun, and it was unremarkable (except maybe in Boston). Now it generates a police response, no matter how legal your conduct is under state law. We’ve all seen the videos. Some cops are cool about it, some want you arrested and in jail if they can figure out how to make it happen. This is particularly true in urban environments, and perhaps even more particularly apparent in upscale neighborhoods in liberal urban enclaves–because the mere appearance of a gun makes them feel unsafe, and they call the cops. Yes, times have changed. To address you r argument one step further, unless the revolution begins, what is the point of openly carrying loaded long guns if you aren’t at the range or out hunting? When the revolution begins, if ever, will the laws on the books matter? Meanwhile, I don’t mind not scaring the sheep.

        • He is certainly correct about times changing.

          The question isn’t if times change as they most certainly do. The question is if the underlying forces that necessitate a free people to bear arms have changed. The answer is a resounding no! If anything, governments today are more dangerous and they certainly are much more intrusive.

          It used to be that anyone could carry a gun, and it was unremarkable (except maybe in Boston). Now it generates a police response, no matter how legal your conduct is under state law. We’ve all seen the videos. Some cops are cool about it, some want you arrested and in jail if they can figure out how to make it happen. This is particularly true in urban environments, and perhaps even more particularly apparent in upscale neighborhoods in liberal urban enclaves–because the mere appearance of a gun makes them feel unsafe, and they call the cops.

          All the more reason to open carry and seek redress of grievance when infringement occurs. When the law is being disregarded by agents of government in favor of their own biases and political agendas, isn’t that tyranny?

          Yes, times have changed.

          And the sky is blue. That doesn’t mean the necessity of the individual right to keep and bear arms has diminished one iota.

          To address you r argument one step further, unless the revolution begins, what is the point of openly carrying loaded long guns if you aren’t at the range or out hunting?

          I’ve covered this extensively in comments over time. A free people openly bearing arms in times of peace acts as a strong deterrent to enemies, foreign and domestic. It is a reminder to all that we are capable of protecting ourselves and will not be oppressed. If the only time the People bear useful arms is when they intend to fight a foreign or domestic enemy then they would be telegraphing their intentions. It would weaken the tactical advantage of an always armed people. It’s better that enemies always see the People usefully armed and take heed than for enemies to say to themselves that they can make hay for now because the People are asleep. Also, it reinforces a strong will in the People to always be armed. Your suggestion that people ought not bear useful arms in times of peace is at odds with even the plain language of the 2A.

          When the revolution begins, if ever, will the laws on the books matter?

          The third American Revolution began some time ago. It just hasn’t escalated into an all out shooting war yet. Protip: Individual Liberty is losing thus far.

          Meanwhile, I don’t mind not scaring the sheep.

          That’s part of how we got to this sorry shape as a free people and is certainly how we will remain in bondage.

        • “. . . unless the revolution begins, what is the point of openly carrying loaded long guns if you aren’t at the range or out hunting?”

          I respectfully suggest that there is a presupposition underlying your question that it is “seemly” (appropriate) to distinguish among different types of guns (long guns, handguns) in polite company (other than hunting/range). On first, and casual, impression I’m seduced into agreement. I’d regard it as “unseemly” to cross my threshold with my uncased Garand; less-so with my Glock on my hip. But, after reflecting a moment, I’d feel it still a bit unseemly (in my neighborhood) to OC a Glock. What’s wrong – here – in my sense of seemliness?

          As soon as I admit that my sense of what is acceptable – orderly – carry between Grande vs. Glock, do I not invite the judgement of my society for finer gradations? How about between my M1-Grande vs. my M1-Carbine? How about between my .40 Glock vs. my .380 Glock?

          What do my neighbors know of my itinerary today? Am I on my way to church? Or, to a rough neighborhood in Philadelphia? Am I going to pick-up the collections at church for deposit? Or, to collect on my rental properties in Philadelphia?

          I urge that we keep clearly in mind, separately, the issues of:

          – the political statements we want to make to advance the cause of gun rights.
          vs.
          – the principles of right-to-carry.

          Unless-and-until there is some elevated level of civil disorder I am not going to carry my Garand uncased in my neighborhood. Nor am I apt to OC my Glock. If there is an OC picnic in my area I’ll OC my Glock. If there is an OC parade on 4th-of-July, Memorial Day, and the order-of-march calls for long-guns, I’ll carry my Garand.

          In any case, I’ll reserve to my personal discretion which type of gun I carry and expect (as a civil rights matter, demand) that my right to chose which gun to carry openly be respected. The pertinent facts are that I am 2A-able, I have my State’s License-to-Carry, and (in any case) OC is permitted without a license.

          I choose what I OC with due regard to the goal of having a constructive impact on the cause of advancing gun rights.

          With respect to OCT, those folks worked within the framework of the laws the TX legislature wrote for them. Their goal was OC of handguns; a liberty they were being denied. The avenue left open to them was OC of long guns; and they exploited it. Sometimes they did it with excellence; sometimes well-enough; sometimes they were exploited by the Antis; and, sometimes their actions were clearly counterproductive. Such is the ugly world of politics.

          A similar battle now seems to be brewing in FL – let’s call it OC-Fishing. Our brothers-in-arms in FL are also working within the framework of the laws the FL legislature wrote for them. They are ALLOWED OC of handguns; but only while fishing! So, they are OC handguns while bearing long fishing poles.

          No doubt Floridian pearl clutchers will bemoan bate and Glocks with the same anguish as Texan pearl clutchers.

          ‘His gun is SOOOOO BIIIIG! But the hook on his fishing line is soooo small. To fish, why does he need a gun at all?’

          Let us NOT get sucked-into this a second time.

          ‘Madam, the point is NOT that he needs a gun to fish;
          instead, it’s because he has a RIGHT to carry a gun.

          His point is to exercise his right to carry a gun, not a fishing pole.
          The fishing pole is merely a pretext to remain within the nominal lines of the law as it now exists.
          He wants to change the law; and, this is a lawful avenue of protest available to him.’

        • (I had a complete reply typed out and submitted it. Unfortunately, the system ate it. I will try to reproduce something similar.)

          He is certainly correct about times changing.

          The question is if times have changed in such a way that no longer necessitates a free people bearing arms. Have times changed so that governments are less dangerous to a free people? No, they haven’t. If anything, governments are even more dangerous and invasive today. Times have changed in that government is more capable of tracking you and destroying your freedom to a greater degree than ever before in human history. That calls for a stronger exercise of the individual RKBA rather than a weaker one.

          It used to be that anyone could carry a gun, and it was unremarkable (except maybe in Boston). Now it generates a police response, no matter how legal your conduct is under state law. We’ve all seen the videos. Some cops are cool about it, some want you arrested and in jail if they can figure out how to make it happen. This is particularly true in urban environments, and perhaps even more particularly apparent in upscale neighborhoods in liberal urban enclaves–because the mere appearance of a gun makes them feel unsafe, and they call the cops.

          All the more reason for people to exercise their right to bear arms and then seek redress of grievance when government oversteps. When agents of government violate even the law in furtherance of a political agenda, isn’t that tyranny? Your solution is to lie down and take it, to vomit on the attacker, runaway and scream. No thanks. I am of a free people.

          You may have “seen the videos” but I’ve seen it in person. Stand up for liberty or you will be forever on your knees under tyranny.

          Yes, times have changed.

          And the sky is blue but that doesn’t negate or even lessen the necessity of a free people to bear useful arms in defense of there own liberties.

          To address you r argument one step further, unless the revolution begins, what is the point of openly carrying loaded long guns if you aren’t at the range or out hunting?

          I’ve written much about this aspect in comments here at TTAG. If the People only bear useful arms during times of strife, they are telegraphing to foreign or domestic enemies that they are about to fight back when they do suddenly bear useful arms in public. This greatly diminishes the tactical advantage of a free people always bearing useful arms. Why allow those who would tramble upon our liberty the luxury of saying to each other, “We can make hay now because the People are disarmed, they are asleep.” Keep those would be tyrants always guessing as to the intention of a free people. That ever present reminder of a free people bearing arms in public everyday also serves as a reminder to enemies, foreign and domestic, that a free people will not be oppressed without a fight. Also, by the People bearing useful arms in public everyday, the People are reminded of that which is necessary to the security of a free state. To be disarmed would be a completely alien notion to the rank and file.

          When the revolution begins, if ever, will the laws on the books matter?

          The third American revolution has already begun. It just hasn’t yet escalated into an all out shooting war. Protip: Individual liberty is currently losing.

          Meanwhile, I don’t mind not scaring the sheep.

          That’s how individual liberty has been eroded and is how we will remain in bondage. Only belligerents have “rights”.

      • That was poorly worded. What I meant is that Maryland does not recognize the right to openly carry firearms.

  10. Again and Again. Over and Over.
    The 2nd Amendment language has gotten so twisted from what it actually says.

    IT CONFERS NO RIGHT whatsoever.

    IT’S A BAN ON ANY BAN.

    The Right to Keep and Bear Arms Shall Not Be Infringed means and only means
    a Permanent Ban on ANY Restrictions, Licensing, or any Assault Weapons Bans, etc.

    Any other interpretation is a clear Unconstitutional violation of the original Framers meaning.

  11. http://www.yalelawjournal.org/note/open-carry-for-all-heller-and-our-nineteenth-century-second-amendment

    ABSTRACT. In the aftermath of District of Columbia v. Heller and McDonald v. City of Chicago, the most important frontier for defining the scope of the Second Amendment is the right to carry weapons outside the home. Lower courts have disagreed on the proper approach for resolving this issue, how to read the Supreme Court precedent, and the extent of the right protected by the Second Amendment. Not surprisingly, they have reached significantly different results. This Note argues that Heller and McDonald leave little doubt that courts should engage in a historical analysis when examining the right to carry. Such a historical examination—guided by the sources, methodology, and logic of Heller—yields two important conclusions: (1) the Second Amendment guarantees a right to carry outside the home, and (2) it guarantees only a right to carry openly. While much of the history examined by the Supreme Court gives little indication of early understandings of the right to carry, the one set of sources consulted by the Court that speaks unequivocally on the right to carry—antebellum state supreme court cases—suggests that only the open carry of weapons is protected. This conclusion, not yet advanced in the scholarship, differs from arguments by many advocates of gun control, which suggest that there should be no right to carry outside the home, and those suggested by many advocates of gun rights, which would allow states to choose between open and concealed carry, as long as one is guaranteed. Either of those results, while perhaps more practical for twenty-first century Americans, would be inconsistent with Heller’s approach and with the sources on which it relies. Instead, a faithful reading of Heller requires constitutionally protected open carry, and, strangely enough, a nineteenth-century conception of the right to carry weapons.

    AUTHOR. Yale Law School, J.D. 2013; Law Clerk, J. Harvie Wilkinson III, United States Court of Appeals for the Fourth Circuit. I am particularly indebted to Kate Stith for her thoughtful and patient stewardship of this project for many months. I would also like to thank Aneil Kovvali, Daniel Meltzer, Josh Meltzer, Tracy Nowski, Ellen Semonoff, and Connor Sullivan for helpful insights and suggestions. The editors of the Yale Law Journal offered many important comments and recommendations that improved this Note immensely, and for which I am very grateful. James Dawson in particular was an indispensable partner and Lead Editor throughout. All errors are my own.

    • My copy of the Constitution does not say “the right to keep and OPENLY bear arms shall not be infringed.” Further, the state supreme court cases, in affirming the constitutionality of concealed carry bans were sure to emphasize, as Justice Scalia noted, that the right to bear arms was preserved. Further, as Scalia discusses, in the 19th century, only men bent on evil deeds were prone to carrying concealed; concealed carry therefore had a sense of immorality and hidden terror associated with it. Times have changed. Now it is openly carried arms that frighten the flock, and that which is not seen is not feared. Since the manner of carry is not specified in the Constitution, the States should be able to dictate the manner more amenable to the common weal, as long as the right itself is unhindered. Therefore, the right protected is the right to bear arms, not the manner in which that right is exercised.

  12. I’ll just thank Charles for the work he is doing. I’ve been through Union vs State battle and I can only imagine all the BS/learning curve he has to put up with. The system is not what one thinks it is until you’ve met it head-on. I’ll close with the words I heard from the lips of a judge many years ago, “I’m sorry, but my hands are tied.” I believe he did not like my response.

    • Thanks gsnyder,

      Fortunately I studied law in college when I was a youth. The basics haven’t changed but I most admit that I never expected that the district court judge would cite non-binding dissents and completely disregard well established constitutional and procedural law both in this Circuit and by SCOTUS when rendering its decisions.

      Even more surprising was the state’s attorney who simply let the district court argue his case for him and made no attempt to establish the record he would need in order to defend his case on appeal.

      It is sad to say that district court judges routinely disregard their role, which is supposed to be neutral and harangue unrepresented litigants. Many, if not most, simply give up while those who do file an appeal were so busy dodging the procedural hand grenades thrown their way and procedural landmines laid in their path by the district court judge they never got around to establishing the necessary record in the district court or saying the “magic words” they would need to prevail on appeal.

      Fortunately, I proceeded early on from the assumption that the burden of proof was on me. I submitted more than enough evidence to support my case on appeal and said all the “magic words” I needed to in the district court.

      Remember that part of the en banc Peruta hearings where the court asked what declarations were made by the defense in support of the Sheriffs policies? In my Open Carry lawsuit the state did not submit a single declaration, expert or otherwise, in support of the Open Carry bans I am challenging. Instead, its argument was that there is no right outside the home until SCOTUS says there is a right outside the home. For that matter, in all of its briefs the state never once conceded a right to carry a firearm in the home, let alone in the curtilage of one’s home.

      All I need in order to prevail is for the court of appeals to conclude that I have a fundamental right, under any of the legal theories I raised (which were not limited to the Second Amendment) to take one step outside the door of my home into the curtilage of my home with an openly carried, loaded firearm, carried for the purpose of self-defense.

      If the court of appeals decides that I do, and the state of California has conceded during the Peruta/Richards en banc oral arguments that I do then the state will be asked what evidence it submitted in the district court which would justify California’s Open Carry bans?

      At which point the state would have to concede that it did not submit a single iota of evidence in defense of its the Open Carry bans.

      Under any level of heightened scrutiny, I win.

      But I also made a pretty good case that the bans fail even rational basis review because, as SCOTUS has observed, a law can be stupid and still survive the rational basis test but the challenged law cannot be arbitrary or irrational.

      • I most admit that I never expected that the district court judge would cite non-binding dissents and completely disregard well established constitutional and procedural law both in this Circuit and by SCOTUS when rendering its decisions.

        That’s because you are looking at the case legally and not as a rabid anti-gunner who will cling to anything he/she can to justify a judgement.

        Even more surprising was the state’s attorney who simply let the district court argue his case for him and made no attempt to establish the record he would need in order to defend his case on appeal.

        We recently had a court case where the judge just started making up stuff that wasn’t even in the police report. So yeah, they do that.

        It is sad to say that district court judges routinely disregard their role, which is supposed to be neutral, and harangue unrepresented litigants.

        Yes. In one of our recent cases, the Michigan Court of Appeals not only overturned the district judge but stated in their ruling that the district judge abused her authority by her ruling and granting something clearly without merit. As long as she doesn’t get caught drunk driving too many times or having sex with a little boy, it’s a tough fight.

        they never got around to establishing the necessary record in the district court or saying the “magic words” they would need to prevail on appeal.

        Care to elaborate on the magic words required for appeal?

        • Danny Griffin,

          “Magic words” come in a variety of flavors. Theoretically, the complaints, motions and other briefs of pro se litigants are supposed to be “liberally construed” but in the real world that rarely happens. One example of the use of “magic words” from my case is in my complaint where I allege that it would be futile for me to apply for a permit to openly carry a loaded handgun from the county sheriff as the county sheriff is barred by statute from issuing handgun open carry permits unless he is the sheriff of a county with a population of fewer than 200,000 people. I live in a county with 10 million people. I live in a city which contracts with the county sheriff and so I cannot apply, under a similar statute, for a permit to openly carry a handgun. Instead, I asked for both an application and a license to openly carry a handgun from an adjacent city in my county and was denied. I placed this fact in my Complaint as well in order to establish standing to challenge that statute as well (including the population and residency restrictions). One would think that it would be unnecessary to allege “futility” but failing to do so can make the difference between winning and losing.

          Another example can be found in my Complaint where I allege that California Attorney General Harris has all the powers of a District Attorney. This was necessary in order to establish “standing” against AG Harris, in her official capacity of course. Official capacity being yet another set of “magic words” as normally an Attorney General cannot be sued personally, unless of course she defies an injunction or other court order.

          Another example was my having to aver and articulate a concrete plan to break the law given that the district court would not recognize the “chilling effect” a law imposes on a person who violates the challenged law merely by stepping one foot outside the door to his home into the curtilage of his home coupled with the nearly half century of prosecuting persons for carrying a loaded gun not only in actual public places but on their own private residential property.

          I don’t think it is much of an exaggeration, if any, to say that 90% of the barriers between a Federal Civil Rights plaintiff and his winning his lawsuit are procedural barriers wherein failure to use the right “magic words” turns a lawsuit which otherwise would win into one that loses.

  13. There was a time when I was rooting for Charles. Now I hope he loses just so he’ll shut the fuck up.

  14. Who gives a sh!t what they decide? I will continue to carry my firearm, concealed, in all places whether a panel of aging codgers who live in gated communities decides it’s legal or not. Quit being bitches and carry your gun. Stop asking Massa’ for permission and exercise your right as a human being.

  15. “And do you really think that even the most dyed in the wool liberal on either the 9th Circuit Court of Appeals or the US Supreme Court is going to uphold a 1967 ban on openly carrying loaded firearms which was enacted specifically to prevent Blacks and other minorities from openly carrying loaded firearms for the purpose of self-defense?”

    Never underestimate the Left’s ability to twist logic to their own ends, or just flat out wipe their butts with it. They see banning firearms as a public good. I will bet they are perfectly willing to overlook gun control’s nefarious past in order to achieve “progress” in the present. Remember: you’re dealing with the same mindset that brought us Fast & Furious. Progressives have a goal, and they are willing to trample their own principles in the short term if they can further that goal. They can always lie their way out of their breach of principle so long as the agenda is advanced.

  16. In reply to Grindstone in his reply to my comment . The Federal government should have refused to involve itself in the debate altogether and left it to the states to debate . The church should be able to refuse to marry anyone they want . What would happen if a church put it in their bylaws that they would not preform a marriage on an interracial couple ? Can you say discrimination suit . I don’t see where divorce or atheism has anything to do with what just transpired with the courts . If a pastor refuses to marry a homosexual couple they are discriminating and will be held to account . If anyone thinks that the homosexual community will not purposefully send couples to redneck bible preaching , word following preachers , to be married and then not file discrimination suits when they are turned away . Well , sorry Grindstone , it’s the plan from the beginning .

  17. He is certainly correct about times changing.

    The question is if times have changed in such a way that no longer necessitates a free people bearing arms. Have times changed so that governments are less dangerous to a free people? No, they haven’t. If anything, governments are even more dangerous and invasive today. Times have changed in that government is more capable of tracking you and destroying your freedom to a greater degree than ever before in human history. That calls for a stronger exercise of the individual RKBA rather than a weaker one.

    It used to be that anyone could carry a gun, and it was unremarkable (except maybe in Boston). Now it generates a police response, no matter how legal your conduct is under state law. We’ve all seen the videos. Some cops are cool about it, some want you arrested and in jail if they can figure out how to make it happen. This is particularly true in urban environments, and perhaps even more particularly apparent in upscale neighborhoods in liberal urban enclaves–because the mere appearance of a gun makes them feel unsafe, and they call the cops.

    All the more reason for people to exercise their right to bear arms and then seek redress of grievance when government oversteps. When agents of government violate even the law in furtherance of a political agenda, isn’t that tyranny? Your solution is to lie down and take it, to vomit on the attacker, runaway and scream. No thanks. I am of a free people.

    You may have “seen the videos” but I’ve seen it in person. Stand up for liberty or you will be forever on your knees under tyranny.

    Yes, times have changed.

    And the sky is blue but that doesn’t negate or even lessen the necessity of a free people to bear useful arms in defense of there own liberties.

    To address you r argument one step further, unless the revolution begins, what is the point of openly carrying loaded long guns if you aren’t at the range or out hunting?

    I’ve written much about this aspect in comments here at TTAG. If the People only bear useful arms during times of strife, they are telegraphing to foreign or domestic enemies that they are about to fight back when they do suddenly bear useful arms in public. This greatly diminishes the tactical advantage of a free people always bearing useful arms. Why allow those who would trample upon our liberty the luxury of saying to each other, “We can make hay now because the People are disarmed, they are asleep.” Keep those would be tyrants always guessing as to the intention of a free people. That ever present reminder of a free people bearing arms in public everyday also serves as a reminder to enemies, foreign and domestic, that a free people will not be oppressed without a fight. Also, by the People bearing useful arms in public everyday, the People are reminded of that which is necessary to the security of a free state. To be disarmed would be a completely alien notion to the rank and file American.

    When the revolution begins, if ever, will the laws on the books matter?

    The third American revolution has already begun. It just hasn’t yet escalated into an all out shooting war. Protip: Individual liberty is currently losing.

    Meanwhile, I don’t mind not scaring the sheep.

    That’s how individual liberty has been eroded and is how we will remain in bondage. Only belligerents have “rights”.

  18. I perceive an alternate perspective on the “Alternative Outlet Theory” explained by http://www.yalelawjournal.org/note/open-carry-for-all-heller-and-our-nineteenth-century-second-amendment. I’ll call it the “Alternative Ducking-the-Question Theory”. If my reasoning is sound (you be the judge) then there are clear implications for our courses of concurrent action.

    What would jurists really WANT to do to gore our ox?

    First, I’ll list the possible outcomes in order of worst-outcome to best-outcome from our viewpoint (and vice-versa from that of an Anti).
    1. – Never make any decision either recognizing or repudiating any Right-to-Carry (RtC)
    2. – Rule that there is no RtC whatsoever
    3. – Rule that governments have to allow SOME mode of public carry but may burden it in some ways
    4. – Rule that States must admit of at least one (unburdened) mode of RtC, either OC or CC
    5. – Rule that States must admit of the RtC CC but that OC may be prohibited or heavily regulated
    6. – Rule that States must admit of the RtC OC but that CC may be prohibited or heavily regulated
    6. – Rule that States must admit of both RtC (unburdened), both OC and CC

    I propose that jurists really want #1, to never make a decision. However, that is a difficult long-run position to maintain against all the pressure we PotG will put on them. Jurists (unlike legislators) can think of the long-run and tend to do so. (Chief Justice Taney could not have imagined that his Dred Scott ruling would be rendered a dead letter within 11 years). An expectation that their decision will soon be overturned/superseded is a strong mark against that course.

    #2 is also highly desirable to leftist jurists; but, it’s a difficult position to maintain in light of the well-articulated arguments that the 19th century presidents establish a credible basis that there IS a RtC OC.

    Having discounted 1 and 2, that leaves #3 as the MOST DESIRABLE course for jurists. The Alternative Outlet Theory contemplates an explicit decision that States MUST admit of at least one of the 2 modes of carry; either OC, CC or both. My “Alternative Ducking-the-Question Theory” is that they will make NO such decision explicit. Instead, they will prefer to:

    – knock-down onerous May-Issue policies piecemeal, thereby
    – ducking – indefinitely – the question of whether there really IS any RtC of any sort.

    Look at the 7th Circuit and the DC District court decisions. It was simple for them to rule that NO-Issue was unconstitutional. Ball moves to the legislative body’s court to decide how onerous the May-Issue barriers might be. This process can continue; the fight over fees, training and prerequisite pretexts (occupation, threat) can go on forever.

    The judiciary should be quite happy for the PotG continuing to litigate the May-Issue constraints. Then, the judiciary can carry on forever simply ruling that one or another prerequisite or impediment is unreasonably onerous; never conceding that there is any RtC CC. In so doing, most (certainly not all) of us will be placated. The 10 Won’t-Issue jurisdictions will have to move toward Shall-Issue albeit on terms that remain pretty onerous (e.g., high fees and high training requirements.) We keep hammering away; e.g., that the terms for non-resident permits (such as those of MA) are too onerous. The judiciary keeps ruling in our favor, albeit very slowly.

    Ducking-the-Issue is a safe play for the judiciary because it leaves the States in the decision-making position as to how onerous they will make their requirements; until a court rules that the fee or training requirement or prerequisite occupational/threat pretext is struck-down. Eventually, the judiciary should hope, enough PotG become placated that we stop litigating; we have a good-enough RtC that we move-on to some other issue (AWB, armor-piercing ammo ban, gun-free-zones, etc.)

    I am NOT, here, advocating that a “good-enough” RtC CC is a desirable or acceptable outcome from OUR viewpoint. I would ONLY go so far as to say that a “good-enough” RtC CC would be better than what we have now and much better than remaining in limbo forever. Accordingly, if my “Alternative Ducking-the-Question Theory” is a valid characterization of the forces in-play within the judiciary then we ought to do all we can to encourage the judiciary down that road (along with parallel mutually-inclusive courses of action.)

    Moreover, we ought to use the threat of RtC OC as a “stick” to encourage the judiciary’s aggressive placating our demands for more relaxed Shall-Issue CC laws. If we REFRAIN from showing the judiciary the RtC OC “stick” then the judiciary can drag its feet in chipping-away May-Issue. Conversely, if the judiciary feels threatened that it will be forced to rule in favor of RtC OC then they should accelerate their efforts on lenient Shall-Issue.

    Among the PotG there are two large and passionate camps:
    – those that favor OC and remain unsatisfied with CC; vs.
    – those that favor CC and are extremely hesitant to toy with OC.
    I argue that these two camps really ought to cooperate.

    The CC camp will appreciate all the progress that can possibly be made to advance Shall-Issue on the most lenient of terms. I don’t see any complaints from the CC camp about OC ninjas in NM or AZ; why not? Simply because OC of handguns is acceptable in those precincts. Likely, upon the effectiveness of OC of handguns in TX, that same lack of complaint will prevail in TX. I.e., all those who complained about Chipotle ninjas OCing long-guns will remain silent about Texans OCing handguns.

    Thereupon, the acceptability of OC in NM, AZ will spread (as it already has) to MI and then TX. Thereafter, to other western and midwestern States, then across the Southeast States, and so forth. Given a long-enough period of time, it will reach States such as DE where OC is theoretically legal but unpracticed. Along the way, pressure will mount on States such as FL and SC to legalize OC (just as happened in TX). While it may take decades, this is an obvious path to de facto public acceptance of the practice of OC throughout the US. Whereupon, the defense of the 2A will have been won in the hearts and minds of an overwhelming majority of voters; guns will no longer be a hot issue.

    The judiciary won’t like the course I have projected (de facto public acceptance of the practice of OC throughout the US); however, they are under no pressure to stop it either. In fact, anything they might try to do to stop it would compel them to address the issue of whether there is the RtC OC; which I posit they want to AVOID doing.

    The OC camp, of course, wants RtC OC and they want it as fast as possible. They may be satisfied – VERY GRADUALLY – by the course I project. That will (only) encourage them. I propose that the OC camp aggressively wave the RtC OC stick. As the judiciary sees that this camp will settle for NOTHING LESS then a ruling establishing RtC OC, the judiciary will be eager to placate the CC camp so as to reduce the number of critics they face. (‘We shall divide the CC gun nuts from the OC gun nuts and thereby overcome the OC gun nuts’!)

    Thus far I’ve made no mention of the legislative bodies with skin in this game; but only for the sake of simplifying the argument. Legislators (including Congress) also have skin in the game. If legislators want to forestall any RtC ruling (whether OC, CC or both) then they have to keep pace with the judiciary.

    Congress will be under heavy pressure to legislate National Reciprocity rather than let the judiciary to legislate from the bench. More specifically, each Federal legislator will want to placate as many of us “gun nuts” as possible so as to win reelection. State legislatures will want to relax their Won’t-Issue laws to May-Issue-More-Often rather than to be forced to Shall-Issue. If forced to Shall-Issue, they will want to set the standards (fees, training) just below the threshold that will invite being ruled-against by the judiciary.

    The huge club hanging over the 10 slave-State’s legislatures is National Reciprocity. If these legislators were astute they would relax their laws to May-Issue-More-Often in the hopes of remaining in control. By NOT doing so, they remain in jeopardy of the federal legislators representing the free-states shoving National Reciprocity down their throats. There is nothing these 10 States can do to interfere with the wishes of the voters in 40 other States. Therefore, OUR (residents of the 40 free States) tactic must be to apply pressure on OUR Federal legislators. We need to persuade the Wyoming voter (who has little intention of traveling to CA or OR and no intention of traveling to NY, NJ or MD) that it is in HIS PERSONAL interest to push his 2 Senators and Representative on National Reciprocity so as to “free” the 10 slave-states. The objective is to increase the normalization of guns-in-civilian-hands in EVERY State, not just his home State.

    Ultimately, what both OC and CC camps SHOULD WANT is that carrying a gun is as widely-presumed a liberty as driving-a-car.

    It is a politically incontrovertible fact that every individual (a member of the People) is at liberty to drive a car provided that he is: of-age; has sufficient vision and physical faculties to operating it; passes a modest test (written and on-the-road); and demonstrates a tolerable conformance to the rules-of-the-road. Whether there is a “RIGHT-to-Drive” or whether driving is a mere “PRIVILEGE” is – as a practical matter – irrelevant. No State could get-away with a “need-to-drive” prerequisite for a driver’s license. Nor could it charge outrageous fees nor raise the written or behind-the-wheel testing standards to ridiculous levels. Onerous requirements couldn’t survive the political back-lash.

    When the public resident in 95% of the precincts of America no longer takes any notice of the practice of gun-carrying then carrying-a-gun will have become as widely-PRESUMED a liberty as driving-a-car. Thereupon, encroachments on that liberty will be as difficult to impose – whether legislatively or judicially – as they would be were they applied to driver’s licenses.

    Obviously, the converse is not the case. Heller and McDonald would mean nothing if 70% of voters wanted to ban handguns. National Reciprocity would mean nothing if a simple majority of Congresscritters voted to rescind a NR law.

    Our security lies, penultimately, in the hands of our fellow voters, not in our governmental forms. (And, of course, ultimately our hands to to “. . . throw off [a despotic] Government, and to provide new Guards for [our] future security.”)

  19. “And do you really think that even the most dyed in the wool liberal on either the 9th Circuit Court of Appeals or the US Supreme Court is going to uphold a 1967 ban on openly carrying loaded firearms which was enacted specifically to prevent Blacks and other minorities from openly carrying loaded firearms for the purpose of self-defense?”

    Yes. Seeing as how the dyed in the wool liberals want a monopoly on force so we are all dependent on the government.

  20. I wish that Charles Nichols would just be quiet. His rambling and ranting does NOTHING for our right to carry, only to further his single-sided cause.

    • Noah, where is your lawsuit seeking to overturn California’s Open Carry bans? Oh right! You oppose Open Carry.

      Concealed carry is of no use to me, I don’t carry a purse. Besides, Open Carry is the right guaranteed by the Constitution, concealed carry can be banned.

      http://CaliforniaRightToCarry.org

      “[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

      “[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.

      “In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right…Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had 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

      “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251…” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816

  21. “Is Open Carry the Real Battleground for Bearing Arms?”

    No, but it ends the censorship of the so-called “conversation” we’re supposedly having where only one side gets a voice…

  22. All this bickering back and forth about open carry or conceal carry by gun owners sounds like the beginning of an old fashion Baptist congregation breakup . Baptism before one year , after one year . The wine rally turns to blood or it doesn’t , Peter was the rock or what Peter said is the rock . Pre tribulation , mid tribulation or post tribulation rapture . Rapture or no rapture . Once in grace always in grace . Prophecy all fulfilled or yet to be fulfilled . Antichrist comes out of old Rome empire or new Rome or is it Syria . People still speak in toungs to glorify God or they only did at Pentecost . Carry a gun on your shoulder , on your back , across your chest , on your hip , in your waist ,front , back , or side . In the pocket or purse or your hand . Covered or open . I don’t see why we waste our time on specifics when we need to all come together and voice the obvious . THERE IS A GOD , AMERICANS HAVE A CONSTITUTIONAL RIGHT TO OWN AND BARE ARMS , I reiterate the sentiments of SCW all the way . This started out as a discussion with real potential and wandered off into a private debate over a lawsuit . Screwed up the whole tent revival when someone opened the sack and pulled out the rattle snakes .

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