(The following is a press release from Charles Nichols at California Right to Carry)
Four years ago this month, November 30, 2011 to be precise, I filed a Federal Civil Rights lawsuit in the Federal Central District Court of California which seeks to strike down California’s 1967 ban on openly carrying loaded firearms in public for the purpose of self-defense . . .
My decision to challenge California’s ban on openly carrying loaded firearms in public was not some spur of the moment decision on my part. It all began more than a year earlier in 2010. I had asked the National Rifle Association, the Second Amendment Foundation, the CalGuns Foundation, the Gun Owners of California/America, The Mountain States Legal Foundation, the National Association of Gun Rights and prominent lawyers from both Conservative and Libertarian organizations both before and after filing my lawsuit to represent me or to at least assist me in my lawsuit.
Not a single one of them was interested. Instead, they all threw their support in favor of challenges to concealed carry laws in California and in other states. Which they lost.
The reason they lost, from a legal perspective, is because there has never been either a state or Federal court which has held there is a right to carry a weapon concealed under the Second Amendment. More to the point, state courts have explicitly held that there is no right to carry weapons concealed since 1831 and state courts have upheld prohibitions on concealed carry dating back over 200 years.
In 1897, the US Supreme Court likewise said “[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Although the Second Amendment was not at issue in that case, it was in 2008 when the Supreme Court published its first in-depth analysis of the Second Amendment in which it emphasized 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.””
Lest there be any confusion, “secret advantages and unmanly assassinations” refers to concealed carry and went on to say in its 2008 decision that:
“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…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.”
The Supreme Court cited two ante-bellum state court cases which it said “perfectly captured” the meaning of the Second Amendment right to keep and bear arms. Both held that Open Carry is the right guaranteed by the Second Amendment and held that concealed carry is not a right and can therefore be banned.
In the late 1970s, when I studied law in college, my professor said that the only thing better than 100 years of precedent supporting your case is a recent appellate decision affirming those 100 years of precedent. When it comes to prohibitions on concealed carry, there are nearly 200 years of precedent. When it comes to prohibitions on the use of concealed weapons, we have precedents going back over 300 years which held that the use of concealed weapons was murder when they were used in circumstances were the death of one’s opponent would otherwise be manslaughter, such as in mutual combat.
In 2010, the United States Supreme Court again affirmed what it had said in 1897 and again in 2008 by not simply saying that the Second Amendment applies to all states and local governments but by explicitly holding that all states and local governments were bound by its definition of the Second Amendment from its decision in 2008.
Back in the day when I studied law there was an old adage that went “Lawyers are doctors who weren’t smart enough to get into medical school.”
The meaning of that may be lost on today’s generation but simply put it means that lawyers aren’t very smart but they nonetheless think of themselves as gods.
The Second Amendment lawyers perfectly fit that old adage. Their incompetence is exceeded only by their arrogance.
This shouldn’t be surprising. There aren’t very many competent lawyers out there. The competent ones tend to gravitate to lawsuits where there is a multi-million dollar payday waiting for them, leaving a large pool of unqualified ambulance chasers for the rest of us who don’t have deep pockets.
There is no “payday” waiting for me should I prevail in my California Open Carry lawsuit. I am not an attorney and therefore I am not entitled to attorney fees and since California does not allow persons who aren’t attorneys to hire paralegals pretty much the only costs of my lawsuit I will be able to recoup are 9 cents per page of the briefs I filed in the district court, but only for a single copy of those briefs, and partial reimbursement for postage.
By comparison, NRA lawyer Paul Clement, who bills his clients around $1,300 an hour will get paid by the NRA when he loses.
It is very likely that I will win my California Open Carry lawsuit in the 9th Circuit Court of Appeals. The defendants in my lawsuit, Governor Brown and Attorney General Harris, have taken the position these last four years that there is no right under the Second Amendment for us to so much as step one foot outside of our homes with a loaded firearm. For that matter, the defendants have not even conceded that there is a right to even possess a loaded firearm in one’s home, let alone carry it in one’s home.
This June, before an eleven judge panel of the 9th Circuit Court of Appeals the California Solicitor General finally conceded that not only is there a Second Amendment right to openly carry a firearm beyond the curtilage of one’s home, he said it is impossible to read the US Supreme Court’s 2008 decision in District of Columbia v. Heller to say that the Open Carry right doesn’t extend to public places. The solicitor general was careful to point out that the Second Amendment right does not extend to concealed carry in public.
I am now waiting for the 9th Circuit to publish its opinion in that case. If the 9th Circuit accepts the concession of the California Solicitor General and says so in its decision then my appeal can be won by filing an appropriate motion.
If the 9th Circuit Court of Appeals simply says that there is no right to carry a weapon concealed in public and leaves it at that then my appeal will go on for a few more years.
My case could have already been before the US Supreme Court by now. Unfortunately the NRA asked the court of appeals to stay the appeal of my preliminary injunction and it was stayed, by an assistant clerk.
Appeals of a preliminary injunction are given priority status. Now that there has been a final judgment from the district court in my case, the appeal of my preliminary injunction is now moot and I have to wait in line with all of the other civil cases. Fortunately, appeals of civil cases are heard in numerical order by the district they were filed in.
Regardless of what the 9th Circuit Court of Appeals says in the concealed carry cases pending before it, once the decision in the Peruta v. San Diego concealed carry lawsuit is released, my California Open Carry appeal moves to the head of the line.
We can only hope that happens before we lose one or more of the justices of the Supreme Court who gave the Second Amendment back to us. The Second Amendment was restored with a single vote in both 2008 and 2010.
We are one heart attack or retirement away from losing that 5-4 majority. When that majority is lost then the Second Amendment window closes.
And when that happens, you’ll have the so called gun-rights groups to blame for attacking the Second Amendment instead of defending it in Federal Court.
Interesting article. Much food for thought.
What’s that guy carrying? Looks like an old model 37 Winchester but can’t tell.
Judging by the one rifle bullet taped to the buttstock, probably a NEF Handi Rifle.
I don’t see any sights.
I’m thinking that’s a NEF Pardner shotgun with a .410 shell taped to the buttstock.
http://www.guns.com/review/2013/09/16/gun-review-hr-pardner-410-perfect-single-shot/
This is the salient point. I remember when Michigan Open Carry was sued by our library system who wanted to prohibit all guns–open or concealed–in their libraries. We fought them all the way up to the Michigan Supreme Court. We won. We established the legitimacy and scope of our preemption statute, but no one wanted to help us. Not the NRA, nor the SAF, no one. Our victory not only affected the nearly 500 thousand concealed carry license holders, it also affected thousands more gun owners who didn’t even have licenses.
You’re welcome.
Why did they due your organization? What did they want Michigan Open Cary to do?
People used to carry guns in the library system. If you CCed no one knew, but if you OCed, some people noticed. So the library system sued us to keep guns out, even though they were preempted by state law. They spent over $100K suing us and fighting it to the Supreme Court of Michigan. I know because I FOIAed the billing! I have their legal billing statements.
I chastised the CADL board for wasting taxpayer money at one of their monthly meetings. They were very stoic and didn’t react, but they appealed to the SCoM who finally told them to f’ off, they wouldn’t rehear the case..
Danny Griffin – It is unfortunate that people (including reporters) refuse to read any of the NRA briefs filed in Peruta v. San Diego (or any legal briefs for that matter). If they were to read them, not only would they discover that the NRA has been arguing to uphold California’s 1967 ban on openly carrying loaded firearms in public (a ban the NRA helped write), they would discover that the NRA said in its opening brief that if they did not get their precious government issued permission slips then not only would the Loaded Open Carry ban be struck down but the California Gun-Free School Zone Act of 1995 would also be struck down. The NRA said that would be “drastic.”
Not only does the NRA oppose Open Carry, the NRA supports Gun-Free School Zones where it hurts the most, in Federal court.
California Right To Carry -> http://CaliforniaRightToCarry.org
Do you have a link to those briefs (rather than the top level CRTC site)?
I get in perennial arguments with a guy who cannot seem to understand that the NRA is not a gun rights organization.
I think we should all hire an exceedingly competent 2nd amendment attorney , for the white house . One who studied for years , the constitution , the bill of rights and all the amendments’ on the books .
………………….. TEDDY CRUZ for attorney of the United States .
I have an image in my head. President Cruz, standing before the Supreme Court, schooling the Chief Justice and most of the other Bushs’ appointees on the Constitution, BoRs and what the founding fathers had in mind when these were written.
First Cruz is going to have to explain his support for the USA Freedom act, in direct violation of the 4th amendment.
The phrase “without probable cause” in the 4th is every bit as plain and clear as “shall not be infringed” in the 2’nd.
Hear, hear.
Well said!
shhhh don’t bring up inconvenient hypocrisy…
The tension between freedom and security brought about by the real and present danger of terrorist attack is truly scary. It is possible to insist that freedom is absolute, and that any infringement (pick your favorite) is wrong on its face, and cannot be tolerated. It is also significant and valid that in order to enjoy the benefits of freedom, it is best if one is alive and unharmed.
Absolutely not a fan of allowing unfettered rummaging through all communications “looking for something”, but if technology allows a security threat to go unrecognized until the explosion, how beneficial is freedom to the resulting casualties?
We seem to be at a point where people who are afraid of government surveillance of communications will immediately blame the government for failure to detect and stop a tragedy. It is all too easy to sit back and declare, “Well, you just gotta find a way to single-out only bad guys, without anyone else being scrutinized.” And that may have been the right response some time ago.
Oh, and the government cannot develop behavior, political, ethnic or cultural profiles. We essentially want our national security to look like the post office; burdened with so many restrictions it can never be self-sustaining, yet criticized at every turn for failing to perform.
Don’t have any answers here, just a very uncomfortable notion that we have actually made the constitution into a suicide pact.
Umm, ya’ll can vote for Trump or Carson if you think they’ll be better on the 4th. Paul is good on 4A issues…but I suspect you’ll have to write-in his name by the time you get to vote in the primary.
Sorry boys and girls , but yacking on your ‘ in the cloud ‘ phone about everything from the color of your morning shit to who your screwing at the office , in the car pool , behind the coatrack , or on the oval office seal , to what your planning to blow up , to how many kids you’ve molested , is not the same as your private papers . Listening to you rant , extort , rave , or brag is not your private papers any more than a land line phone should be considered private papers when you are yacking on them .
Private papers are words , sentences , phrases and thoughts written down and thereby becoming private property and used to be transported securely by means of a 2nd amendment carrying pony express . Things you have yacked about over your smart phone are not private papers .
Still sorting through all the comments here, but regarding whether cyber talk equals “papers”, isn’t the issue not whether only papers are considered “private”, but the expectatin of privacy given the norms of the day? The courts always require a warrant to tap a hardline phone (which phone did not exist in 1791, nor did telegraph). If land line phones are not “papers” why is a warrant needed? If we are stuck with privacy attached to only the communications means of the 18th century, what else from that time no longer applies because modern tools have supplanted them?
Try writing down your thoughts , plans , intentions , secrets , placing them in an envelope , and mailing them the next time you want to keep a secret .
Stay off the phones .
I think Cruz will protect your 4th amendment rights just fine .
Precedent and “stari decisis” be damned. All they do is give the current judge(s) an excuse to not take a stand. It’s not like just because SCOTUS has already ruled on a subject they were NEVER wrong, or overturned.
“The Supreme Court cited two ante-bellum state court cases which it said “perfectly captured” the meaning of the Second Amendment right to keep and bear arms. Both held that Open Carry is the right guaranteed by the Second Amendment and held that concealed carry is not a right and can therefore be banned.”
As usual, the SCOTUS found what it wanted to find, at least a bare majority did. As I recall, the Second Amendment states EXPLICITLY: “…the right of the people to keep and bear arms, shall not be infringed.” Not even the most learned Justice of the Supreme Court can point to that phrase and show me where or how it indicates that it is perfectly alright for them to decide that it is their prerogative to infringe on how we keep or bear those arms. The whole point of the Second Amendment was so that the government would have absolutely no authority to infringe on this natural, civil and Constitutionally protected right.
If they can decide that we can carry openly, but not concealed, then why can’t they also decide that everyone must carry in the appendix position, or in a shoulder holster or that a rifle or shotgun must be slung crosswise across the back with the muzzle pointing to the ground? Infringed is infringed, god damn it. I don’t care who these guys are or how much they paid for their fancy legal education, the Second Amendment means EXACTLY what it says and they have no Constitutional authority to say otherwise.
“Infringed” is not legally defined, and thus open for interpretation. kick the dirt and yell all you want, but that is the issue. Founding fathers could not anticipate all, and thus permitted for amendments and court clarification,which is what we have today.
“Infringed” is easy.
Let’s say we wanted to give everyone an ID and tell them to bring it when they vote.
Liberals say: Well that would have infringed on minority’s right to vote.
Let’s say we, as working Americans, didn’t want to pay for college girl’s $5 birth control.
Liberals say: Well that would have infringed on a woman’s right to consequence free sex.
“Infringed” has been defined and it is an incredibly low standard to meet.
A similar thought crossed my mind a year or two ago when California criminalized open carry and was “may issue” on concealed carry. In that moment California became Illinois. If you recall, the 7th Circuit told Illinois that the state could not ban both open carry and concealed carry. The state had to allow open carry or “shall issue” concealed carry.
California is in the same exact situation. They must either be “shall issue” or they must allow open carry (or both) — otherwise they are violating the Second Amendment to the U.S. Constitution. I cannot think of any case that would ever have constituted lower hanging fruit. In fact this case seems so easy as to not even need an attorney.
It is a common misconception that the 7th Circuit (in Moore v. Madigan) said that the state must allow “concealed or open carry.” And there is nothing in either the 7th Circuit decision or any US Supreme Court decision which even hints that a state can ban Open Carry in favor of concealed carry. Indeed there is no state court decision which has ever construed the Second Amendment to allow the states to chose between concealed and Open Carry.
What the 7th Circuit decided was this:
“[A] state may be able to require “open carry” — that is, require persons who carry a gun in public to carry it in plain view rather than concealed. See District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783; James Bishop, Note, “Hidden or on the Hip: The Right(s) to Carry After Heller,” 97 Cornell L.Rev. 907, 920-21 (2012).”
Ironically, under California common law when there is a prohibition on both concealed and open carry then prohibitions on both are subject to “strict scrutiny” which means the NRA/CRPA/SAF/CalGuns lawyers could have very easily prevailed in a concealed carry challenge based on state law.
But they chose not to make a state law challenge. Instead they chose to argue that the Heller decision meant the exact opposite of what it said, with predictable results.
uncommon_sense – you actually understand this issue much better than Nichols. But don’t try to tell him that.
I must be a bit confused here , because I assumed my 4th amendment right covered my 2nd amendment as long as I keep it concealed and I obey the laws that would compel an officer of the law to rightfully search me .
There is enough leeway in “reasonable suspicion” that your 4th amendment right to be free from unwarranted search is largely dependent on the officer’s creativity.
Don’t you love the grays .
Interesting article I went through the same thing when I applied for my concealed carry in NYC and I possess an FFL 01. I was denied the license and requested assistance with an appeal no such luck.
Excellent article. The final two paragraphs are fantastic. Thank you!
NRA lawyer Paul Clement … Isn’t he the former Solicitor General that opposed Heller and claimed the Second Amendment empowers the government to regulate and even ban firearms and ammunition?
You should reach out to John Monroe of GeorgiaCarry.Org. He’s done more these cases than anyone else. You can see his work at: http://www.georgiacarry.org/cms/in-the-courtroom/
Lawyers gotta be lawyers, dogs gotta be dogs.
“The Law” is primarily legalized extortion, and we know the kinds of people who engage in that.
Yeah interesting-but why rag on the NRA? Or lawyers if you need one.
Yeah this guy gives off a bad vibe. He says how he went to law school and how all the good lawyers go here and how this and that, but he also clearly states that he isn’t a lawyer and needs/wants one.
2 + 2 isn’t adding up to be 4 here.
Former Water Walker & Craig – You guys obviously don’t understand the title of the article let alone understand what I wrote or the context of the title in relation to the article.
I could try to explain it to you in simple terms but that would be futile.
Gee Chuck I understand you come off as a jerk-good luck with that. Have a special Cali day…
And Chuck-I live in Illinois where there is no open carry. Lots of folks consider California to be a lost cause…I do not. Anything can happen-it did here.
If you condescend everyone, you will go nowhere.
Cold dead fingers will not be infringed!!!!!!!!!! Easy I understand that. Lawyers (most) just steal money, hope all here are not lawyers, phew. Now lets correct sanctuary cities, hmmm??????
From a rights standpoint, our ‘limited’ right to keep and bear arms concealed is much like our ‘limited’ right to anonymous free speech.
Charles Nichols has a history here in CA of telling other lawyers the are wrong (like former SG Clement and the other lawyers actually winning 2A cases) and then losing spectacularly in court. I would not put a lot of stock in his press release.
Shakey – Care to list for the class all of the concealed carry cases these lawyers have won? To date, they have lost every one and spectacularly so as their failures have left binding precedents in their wake which have screwed all subsequent Second Amendment challenges in those Federal circuits.
My loss in my California Open Carry lawsuit in the district court translates into a win on appeal because the California Attorney General’s lawyer sat on his ass and let the district court judge argue his case for him. As a result, the California Attorney General made the same mistake in my case that the Illinois Attorney General Madigan made in Moore v. Madigan, she forgot to provide any justification for the challenged laws. She did not even submit a single declaration, expert or otherwise, in defense of the laws. Her argument in the district court was that there is no right to bear arms in public until SCOTUS takes a case in which the challenged law applied outside of the home and said in its decision that there is a right to bear arms in public. That isn’t how stare decisis works but no matter.
This means that I win even under the laxest interpretation of intermediate scrutiny, should the court of appeals conclude that the Second Amendment extends so much as one foot outside my door (i.e, into the curtilage of my home). Something which the state has already conceded in the en banc oral arguments for Peruta v. San Diego/Richards v. Prieto -> https://youtu.be/Zzmt_TCBXUM
But hey! Thanks for playing. Don’t let the door hit you on the way out.
I remember back ~2010 when you were shopping your case to any lawyer who would listen. No serious lawyers would touch it for two reasons that have nothing to do with them being dumb, or ignorant, or part of some supposed “old boys club” that was trying to shut you out.
#1 – You have a poor legal argument that is unlikely to win.
#2 – Your overwhelmingly arrogant and combative attitude towards anyone who questioned your theories.
These are the same reasons why you, and your many aliases, were eventually banned from the Calguns website. Good luck with your windmill. I just hope your loss does not hurt any of the real cases.
Shakey – There is nothing in my Second Amendment legal arguments which can’t be found in the Heller and McDonald decisions. I realize that you and the other nutters at CalGuns.nuts are butt-hurt that SCOTUS said there is no right to carry a weapon concealed but that is your problem and it certainly isn’t a problem with my California Open Carry lawsuit.
I was banned from CalGuns.nuts in early 2012. I haven’t posted there since. I do frequently monitor the ravings of you and and your fellow travelers there and laugh my ass off every time someone posts in favor of Open Carry and is accused of being me.
Back when Gura lost his first concealed carry case, the CalGuns.nuts mantra was “Not to worry, this is all part of our secret plan to win by losing.” And then he lost another, and another, and another. Not to mention the losses by the NRA.
Now you guys are whining that your “secret plan” to win by losing has failed and instead of blaming your lawyers for filing lawsuits which had no hope of winning in the first place, you blame the courts.
If you were to go back and look at my posts from 2010 at CalGuns.nuts then you would find that I was not initially opposed to concealed carry. It was you and your fellow pointy-headed trolls who convinced me of the wisdom of the prohibitions on concealed carry.
Open Carry filters out you and your kind. Your fantasies about skulking around town with a concealed weapon in the hope that you will get the chance to use it on some unsuspecting victim will have to remain just that, fantasies expressed on a forum filled with nutters who shouldn’t be allowed to even possess a firearm, let alone to carry one in public.
Hugs and kisses.
California Right To Carry -> http://CaliforniaRightToCarry.org
“Your fantasies about skulking around town with a concealed weapon in the hope that you will get the chance to use it on some unsuspecting victim …”.
Listen to yourself – you sound like a Brady Bunch member.
Ladies and gentlemen of TTAG, I rest my case. Charles Nichols believes that the members of the largest pro-2A group in CA “shouldn’t be allowed to even possess a firearm.” He also believes that you should not have the right to concealed carry.
Is this really someone you want to support?
I guess so…I’m fine with “skulking” around too. I can’t believe TTAG would give this guy any press…
nah. the best outcome for us all would be for him to lose the open carry case so that california can intensify efforts to eliminate any possibility of actually using a firearm for self-defense. then, because hunters are such a minority in the state, california can leverage the loss of firearms freedom to prove that even having guns (or even any type weapon) for purposes of hunting is such a little used activity that banning even hunting serves the public good.
yes, adding a lost case for open carry definitely strengthens the arguments/briefs for removing laws prohibiting concealed carry.
This Charles Nichols guy is a total a s s.
He bashes lawyers, then asks for their help.
Oh, he studied law in college.
Lol worthy press release which is best ignored.
The Ninth Circuit is a terrible court to try to restore this right. The 9th Cir. will perform the legal equivalent of a double-reverse twisting backflip in order to avoid acknowledging an actual right to keep and bear arms. Why? Because they Just Don’t Like Guns so they’ll use any tactic they can to keep California oppressed. Moreover, they know full well that they can say pretty much anything and take the most convoluted position because a) it is highly unlikely that anyone will be able to afford the time and costs to get the case to the Supreme Court of the United States, b) it is extremely unlikely that The Supremes would accept it even if it was properly prosecuted, so all of that money will be a complete loss, c) if they can delay their decision long enough the composition of The Supremes may have changed in their favor, so whatever they’re going to do will be greatly delayed, d) assuming an appeal will occur, the 9th Cir. will apply the “intermediate scrutiny” test which has worked so well for gun grabbers in the past, so the Supremes would have to use that more deferential test, and that will be the standard on appeal, so it is likely to be sustained.
This, perhaps with a little bit of the nasty attitude exhibited above, may be why lawyers won’t take the case.
You also must – must! – be mindful of the consequences of losing. While you see the upside of a victory and being hailed as a hero, a loss would be devastating. You would not just lose for yourself, but for the entire 9th Circuit area, millions of people. A loss, particularly a bad one, will establish horrible precedent for all of those people for a very long time and will be cited throughout the country.
You are in an extremely high-stakes game playing with everyone’s rights in a court that doesn’t like those rights. The better strategy is the one being used by lawyers working to establish the right in more friendly courts and using good precedent from those courts to sway less friendly courts. You’re trying to slay the queen dragon in its’ own lair. Please be careful.
Cadeyrn – It is the lawyers for the so called gun-rights groups who are the danger. You would know this had you bothered to read their briefs and read the decisions in the cases they have lost across the country.
Did you know that the NRA lawyers argued in their opening brief in Peruta v. San Diego that not only can states ban Open Carry, contrary to the US Supreme Court decision in District of Columbia v. Heller, but the NRA said that overturning California’s Gun-Free School Zone Act of 1995 would be, in the words of the NRA, “drastic.”
Every Second Amendment argument I have made in my lawsuit was copied and pasted from both the Heller and McDonald decisions. If I lose before the court of appeals then my loss creates SCOTUS Rule 10 circuit splits and splits with state supreme courts across the country. As was pointed out in the denial of cert to Jackson v. San Francisco (an NRA case since dropped) SCOTUS isn’t going to take a Second Amendment case unless their is a circuit split and there is no circuit split when it comes to concealed carry.
Nor did I limit my challenge to the Second Amendment. I have Fourth, Fourteenth, vagueness and due process challenges as well. Losing them would also create SCOTUS Rule 10 circuit splits across the country.
The so called gun-rights lawyers have made their cases dependent upon some court, somewhere, interpreting the Heller and McDonald decisions to mean the exact opposite of what the Supreme Court actually said about concealed carry.
My California Open Carry lawsuit is dependent upon the 9th Circuit reading the Heller and McDonald decisions to mean exactly what those decisions said when it evaluates my Second Amendment challenge.
When my critics attack me, they are attacking the Second Amendment. My critics are butt-hurt that SCOTUS said that Open Carry is the right guaranteed by the Second Amendment and that concealed carry can be banned. Not only did SCOTUS say that concealed carry can be banned, SCOTUS said that people who carry concealed are cowardly assassins.
You can judge a man’s character more by who his enemies are than you can by who his friends are. My friends support the Second Amendment, my enemies oppose the Second Amendment. This pleases me no end.
California Right To Carry -> http://CaliforniaRightToCarry.org
noticed the donate button on nichol’s web site. good time to put aside the internal character assassinations and unite behind this law suit. so, quit yer bitchin’ and put some money where….
ah ‘preciate it, and good night.
george from fort worth – I appreciate your support George but the opponents of Open Carry have drank too deeply from the NRA/SAF/CalGuns.nuts Kool-Aid. It shouldn’t surprise anyone that the braying of these sheep is the loudest from states like California, Illinois and New York.
Texas has taken a huge step in repealing its ban on openly carrying loaded, modern handguns. Hopefully, Florida will soon follow leaving California, Illinois and Hawaii as the only three states which bans the Open Carry of both handguns and long guns.
Had the California Solicitor General not made in concession regarding Open Carry during the Peruta/Richards en banc oral arguments then we would most likely have had a decision in that case by now. As it stand now, we likely won’t have a decision in Peruta/Richards until next year. When the Peruta decision is released, my California Open Carry lawsuit moves to the head of the line.
It doesn’t take a crystal ball to predict that when all of these pending concealed carry lawsuits are shot down, not a single one of the so called gun-rights groups is going to file an Open Carry lawsuit but assuming for the sake of argument that they did, it would be too late for them to get ahead of me in line. By the time they got a judgment from the district court and an appeal was filed, my appeal will have already been fully briefed and taken under submission for a decision.
As the first Open Carry case to be taken under submission for a decision, the decision in my appeal is the one that will be binding in this circuit. 😀
it was a surprise to me that heller did not settle gun possesion entirely, however the gun is transported. a gun in the pocket is certainly more convenient to doing other routine tasks. had no idea that “gun law” history viewed concealed carry of any kind of weapon to be naturally prohibited because of bad actors (maybe this is also why suppressors are tightly controlled, a notion about honorable conduct).
don’t know, but am thinking a huge majority of people who followed heller also think the RTKBA is not constrained by transport method (have heard of a town where you have a right to open carry, transport openly in a vehicle, but no right to concealed carry…meaning using a case to cover the weapon. if one “conceals” the weapon by putting it in a bag or case to transport from home/business from the vehicle, you are committing the felony of concealed carry). which may explain why so much effort goes into eliminating restrictions on concealed carry (presumption being that open carry is a logical result of heller, and most jurisdicitons are only restricting concealed carry (wherever).
maybe the tactics of gun-rights organizations are designed to improve the largest number of gun owners (few states ban open carry, fewer citizens are burdened that way as compared to the number of gun owners who are illegally denied the right to transport a gun however they wish).if so, i understand the desire to get conflicting circuit court decisions in order to push to SC. “winning by losing” would only work if there is eventually a case where a circuit court ignores history and looks at the plain meaning of the words written.
and lastly, not sure winning a circuit court decision upholding open carry is either plus or minus for concealed carry. if a court decides open carry is the true expression of the second ammendment, local authorities will put as many restrictions on it as they do on concealed carry. in the end, the SC will not launch marshals to arrest state/local officials who reject and flaut a SC decision (haven’t done so after heller).
‘…state courts have explicitly held that there is no right to carry weapons concealed since 1831 and state courts have upheld prohibitions on concealed carry dating back over 200 years.’
So a generation after the ratification of the Constitution of the United States of America the courts were already infringing on our rights. Who’s surprised by that?
Gov. William J. Le Petomane – Under English common law, which was in effect in the United States at the time the Second Amendment was enacted in 1791, using a concealed weapon to kill one’s opponent was considered to be murder in circumstances where the killing would otherwise be considered to be manslaughter (manslaughter did not entail a death sentence).
If there were any argument to make that there was a right to carry weapons concealed, other than for limited exceptions such as for travelers while actually on a journey, the so called gun-rights lawyers have had ample opportunity to cite these precedents and other authorities in support of concealed carry in their numerous briefs. They didn’t because none exists.
But let us assume, for the sake of argument, that there was a general right to carry weapons concealed when the Second Amendment was enacted in 1791. That would be useful in challenging a Federal law prohibiting concealed carry but would be of no use in challenging a state law prohibiting concealed carry.
The Second Amendment was applied via the Fourteenth Amendment to the states in the McDonald decision. This means that it is the Second Amendment as it was understood by the people who voted for the Fourteenth Amendment which was applied to the states and nobody can make the case that the voters in 1868 believed there was a right to carry weapons concealed in public.
Moreover, when an enumerated right is incorporated against the states it brings with it all the prior Federal case law regarding that right. Which means the McDonald decision incorporated Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282 “[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” and the decision in District of Columbia v. Heller. Indeed, the McDonald court did not have to but it explicitly held that:
“We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.” McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010) at 3050.
Likewise, the dissent in Heller had no trouble in reading the majority opinion to mean that concealed carry can be banned:
“But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons…” Heller dissent at 2851
You might notice that the minority agreed that concealed carry could be banned, which shouldn’t come as a surprise given that the minority in Heller believed that the mere possession of handguns, even in the home, can be banned.
You have all nine US Supreme Court justices concluding, for different reasons, that there isn’t a right to carry a weapon concealed. It doesn’t get much more unanimous than that.
If, as SCOTUS has clearly stated, that bans on concealed carry do not infringe on the Second Amendment then it was up to the so called gun-rights lawyers to come up with a legal theory which might have proved to be successful in support of concealed carry.
In California, Peruta v. San Diego/Richards v. Prieto, could have easily made a Fourteenth Amendment challenge based on race to strike down California’s statewide prohibition on concealed carry. The Act of 1923 which enacted the current concealed carry of handguns prohibition and licensing scheme was enacted explicitly to prohibit Latinos and Chinese from even possessing let alone carrying, concealable firearms and to ensure that Whites would be granted permits. The sponsor of the legislation would have no doubt included Blacks but in 1923 Blacks were an insignificant minority in California.
The US Supreme Court has held that where a law was racially motivated, even a criminal law which has a plainly legitimate sweep, and it has been shown by a preponderance of the evidence that the law has been disproportionately applied against minorities then the law is unconstitutional.
The 9th Circuit does not require proof of disproportionate enforcement but it shouldn’t come as any surprise that both the 1923 concealed carry prohibition as well as the 1967 ban on carrying loaded firearms in public have been disproportionately enforced against minorities by a 3/1 margin.
You could have gotten concealed carry in California but the so called gun-rights lawyers are fixated on overturning the Heller decision’s affirmation of prohibitions on concealed carry.
And look how well that has turned out. 😀
While I’m not an expert on English common law, I’m assuming that an act of legitimate self defense was considered neither manslaughter or murder, so the distinction would only involve the degree of premeditation. If you were caught with a concealed firearm but had committed no crime were you still punished? And did that distinction also apply to knives?
I’m not disagreeing with the existence of precedent for upholding laws against concealed carry, but there are two reasons IMHO why those precedents should be disregarded. The first is that they were wrong in the first place. The second is that times have changed. Firearms in 1791 and in 1868 were too large to be easily concealed or to weak to be effective for self defense. And at both times no one paid any attention to someone walking around armed. The concept of disarming the civilian population hadn’t even be thought of yet.
I made an anonymous comment above about the similarities between concealed carry and anonymous speech. The right to anonymous speech should be inferred from the general right to free speech, since it’s not popular speech that needs protection. A right to speak freely in the face of reprisals from both governmental and non governmental entities is not free speech at all. Go ahead, promote lower taxes and get audited by the IRS. Don’t support gay marriage and get fired from your job. The general right does not exist without the right to anonymous speech.
So today, only a small percentage of people choose to carry a firearm, making it an unpopular act. Openly carrying in many places subjects you to unmerited scrutiny from both the state and the citizenry. There’s also the fact that legal concealed carry discourages criminal attacks against both carriers and non carriers, since criminals cannot distinguish between the two, making the act a civil service. In today’s society carrying a concealed weapon is the act of a law abiding citizen, not an assassin.
And it’s not like the SCOTUS has never made up a right out of thin air before. There’s nothing in the Constitution that says you have a right to privacy, let alone the right to keep the government out of your business when you’ve just killed your child. Neither does the word ‘marriage’ exist in the Constitution. Yet gay marriage and abortion are ‘rights’ thanks to the whims of the court. The only difference with concealed carry is that we don’t currently have the right judges on the court. So politically you may be right, but that doesn’t make it morally right.
Criminals do not open carry. Permission slips aside it’s still a fact of life.
isn’t this proof of the reasonableness of historical and court decision precedent? bad guys conceal weapons, not good guys.
Gov. William J. Le Petomane wrote:
“While I’m not an expert on English common law, I’m assuming that an act of legitimate self defense was considered neither manslaughter or murder, so the distinction would only involve the degree of premeditation. If you were caught with a concealed firearm but had committed no crime were you still punished? And did that distinction also apply to knives?”
My response:
In 18th Century English common law, which is the system of law we inherited and was in effect when the Second Amendment was ratified in 1791, the taking of another human life was unlawful by default. The courts looked to premeditation and to whether or not the killing involved the use of a concealed weapon (which in the absence of other facts, the concealment of the weapon made the killing presumptively murder). The prohibition on the use of weapons concealed certainly applied to knives and the case law bears this out as 18th Century pistols tended to not be very concealable as you noted.
The lawful exceptions to the use of a weapon concealed were relatively few such as defending oneself from a highwayman but in cases of mutual combat (which was the common case), the use of a weapon concealed, was murder even absent premeditation.
Gov. William J. Le Petomane wrote:
I’m not disagreeing with the existence of precedent for upholding laws against concealed carry, but there are two reasons IMHO why those precedents should be disregarded. The first is that they were wrong in the first place. The second is that times have changed.
My response:
Neither of those reasons makes any difference to the fact that there is no right to carry weapons concealed in public under the Second Amendment (the limited 19th Century exceptions notwithstanding). As to your first reason – Courts are bound by their respective Constitutions and inferior Federal courts are bound by US Supreme Court precedents. Anything else and the law becomes meaningless. The “meaning” of the law would become whatever a judge wants the law to mean in each case.
As to your second reason – The People are free to amend the Constitution to create a right to concealed carry. Note I said “create” because unlike Open Carry under the Second Amendment, the Second Amendment is merely a codification of a preexisting right. The right to openly carry arms for the purpose of self-defense does not depend upon the existence of the Second Amendment. There is no preexisting right to concealed carry and there never has been. As such, the “right” would have to be created and like any artificially created right, can just as easily be taken away.
As easily as enumerated rights are eliminated on a whim.
Any of your rights can be taken by the state if the state chooses because the state can take your life and dead people don’t have rights. As it is I have the right to carry a firearm concealed so long as I don’t use that firearm to infringe on the rights of others. And thanks to a little note from my local sheriff saying that I’m cool, I’m allowed to carry concealed most places without any undue harassment from the state.
Your summary of English common law only proves my point that the laws were wrong in the first place. Although I’d contend that the ‘highwayman’ exception was pretty large, since robbers are the most likely reason for needing an armed defense. However there would have been no incentive to carry concealed out on the highway, in fact you’d want to make yourself look as hard of a target as possible.
As far as the courts are concerned, they can always reverse themselves. No one is arguing that Dred Scott is still binding. And in the cases of abortion and gay marriage the SCOTUS found rights hidden in between the lines of the text that no one had noticed before.
Politically you have a point though, you have to pick your battles and with the courts we’ve got I’m not expecting any judicial epiphanies.
Gov. William J. Le Petomane wrote:
“Any of your rights can be taken by the state if the state chooses because the state can take your life and dead people don’t have rights. As it is I have the right to carry a firearm concealed so long as I don’t use that firearm to infringe on the rights of others. And thanks to a little note from my local sheriff saying that I’m cool, I’m allowed to carry concealed most places without any undue harassment from the state.”
My response: There may or may not be a right to carry concealed but that isn’t the legal theory the so called gun-rights lawyers have placed before the courts. Their argument is that they have a right to carry concealed pursuant to the Second Amendment, which they don’t. Judges are limited to the case before them, or at least that is what they claim.
Gov. William J. Le Petomane wrote:
As far as the courts are concerned, they can always reverse themselves. No one is arguing that Dred Scott is still binding. And in the cases of abortion and gay marriage the SCOTUS found rights hidden in between the lines of the text that no one had noticed before.
My response: SCOTUS can reverse itself but it rarely does and given the current composition of the court, the chances of SCOTUS saying that there is a Second Amendment right to concealed carry is somewhere between nil and none. No one is arguing that Dred Scott is still binding because the 13th, 14th and 15th Amendments were enacted. As to the abortion case Roe v. Wade, even liberals like Supreme Court Justice Ginsburg have criticized the reasoning behind the decision (but not the outcome). As to the gay marriage decision late last term, it conflicted with longstanding 14th Amendment jurisprudence.
Gov. William J. Le Petomane wrote:
Politically you have a point though, you have to pick your battles and with the courts we’ve got I’m not expecting any judicial epiphanies.
My response: My points are legal ones. Courts don’t have the authority to make political decisions. They are limited to deciding legal questions resulting from political decisions.
In closing, I thank you for a civil discourse. As you can see by the posts made by my detractors here, they are incapable of doing anything other than throw their feces around.
California Right To Carry -> http://CaliforniaRightToCarry.org
Interesting conversation. I see your points from a legal perspective. Although I’d contend that while courts might not have the authority to make political decisions, they make decisions based on politics all the time -cough- Obamacare -cough-…
Just a side point, but interestingly enough, in the majority decision of Roe v Wade Justice Blackmun wrote that ‘if the humanity of the fetus could be established’ it would void their decision. 42 years and several billion live births later, there hasn’t been a single case of one of those little buggers that weren’t aborted coming out as anything but human.
Your earlier reference to the Dred Scott decision sparked a memory from when I studied law in college. Roe v. Wade had been recently decided and the similarities between the two were striking to me at the time. A few years after that I discovered the works of Solzhenitsyn. Dred Scott, Roe v. Wade, the Soviet Union (and of course NAZI Germany) all had the same solution. Simply declare that people are not persons, problem solved.
The next time you debate someone who asserts that the unborn are not people, ask him or her what would a DNA test reveal about the human fetus? Or you could try the argument from my first paragraph but it probably would sound like Greek as the lack of education exhibited by people today is scary.
Yes, the untermenschen have no rights.
I personally find it’s a waste of time arguing with willfully ignorant people who believe I’m the one who’s ‘anti-science’.
Gov.
I am not an uneducated twerp by anyone’s definition and even though I have not studied law in a college / university environment , I have managed to stay relatively self educated over the coarse of my life and have managed to maintain a smidgen of common sense , albeit in a world turned upside down .
I do know that two humans make a human and a fetus inside the womb of a human woman is a human being .
I do know that dingbats base more authority on case law and what other dingbats believe the intent of a document is rather than what the words on paper literally say .
These say irk are the reason we have a watered down convoluted message on the Gospel of Christ , chosen allegory over literal .
Welcome to the smartest guy in the room. We’re very proud of ourselves, aren’t we?
tl;dr
The chubby guy in the pic with a musket slung over his shoulder appears to be pointing to a Redcoat hiding in the distance. Maybe time for a padded room?
On the other head he sounds like a legal rocket surgeon, why isn’t he representing himself with this rock solid case?
He explains why. Did you read the article or just look at the pictures?
“Four years ago this month, November 30, 2011 to be precise, I filed a Federal Civil Rights lawsuit in the Federal Central District Court of California which seeks to strike down California’s 1967 ban on openly carrying loaded firearms in public for the purpose of self-defense . . .”. etc.
is that not an instance of “….representing himself” ??
With friends like these, who needs enemies?
I always applaud insightful commentary.
This Nickols guy ate way too many paint chips as a kid.
SAF has won carry cases in the 7th, 9th and DC. Now just waiting on the 2 appeals and then a SCOTUS case to make it national.
Lead follow or get the hell out of the way.
I am not a lawyer. I may work around lawyers, but I have only picked up bits a pieces. Anyhow, there is one thing I have picked up is that an argument presented in the wrong way can have a devastating affect on other related cases today and for many years to come. Should we be worried about this?
Bob – If concealed carry is your desire then it is too late to worry, that ship has sailed leaving a wake of decisions which have harmed other Second Amendment cases. Here is a partial list of those failed concealed carry cases brought by the so called gun-rights lawyers.
Hightower v. City of Boston, 693 F. 3d 61 – Court of Appeals, 1st Circuit (2012)
“Under current Supreme Court precedent, Hightower cannot make out her Second Amendment claim as to the concealed weapon aspect of her revoked license, as she must for her as-applied challenge to succeed. Under our analysis of Heller, as follows, the government may regulate the carrying of concealed weapons outside of the home.
In Heller, the Court explained that “the right secured by the Second Amendment is not unlimited” and noted that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under Second Amendment or state analogues.” 128 S.Ct. at 2816. We have interpreted this portion of Heller as stating that “laws prohibiting the carrying of concealed weapons” are an “example[] of `longstanding’ restrictions that [are] `presumptively lawful’ under the Second Amendment.” United States v. Rene E., 583 F.3d 8, 12 (1st Cir.2009) (quoting Heller, 128 S.Ct. at 2816-17 & n. 26); see also Robertson v. Baldwin, 165 U.S. 275, 281-82, 17 S.Ct. 326, 41 L.Ed. 715 (1897) (observing that “the first 10 amendments to the [C]onstitution” protect rights that are “subject to certain well-recognized exceptions” and stating, in dicta, that the Second Amendment right “is not infringed by laws prohibiting the carrying of concealed weapons”).[9] Licensing of the carrying of concealed weapons is presumptively lawful, and Hightower makes no serious argument to the contrary.” Id at 73-74.
Kachalsky v. County of Westchester, 701 F. 3d 81 – Court of Appeals, 2nd Circuit (2012)
“Notably, Chandler and Reid conflict with Plaintiffs’ position, at least in part. Plaintiffs contend that a state may choose to ban open carrying so long as concealed carrying is permitted. But both Chandler and Reid suggest that open carrying must be permitted. The Reid court explained:
Under the provision of our constitution, we incline to the opinion that the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence.
1840 WL 229, at *5; see also Chandler, 1850 WL 3838, at *1.” Id at [fn 13]
Drake v. Filko, 724 F. 3d 426 – Court of Appeals, 3rd Circuit (2013)
“New Jersey’s longstanding handgun permitting schema is not an anomaly. Many recent judicial opinions have discussed historical laws regulating or prohibiting the carrying of weapons in public. See, e.g., Peterson v. Martinez, 707 F.3d 433*433 1197, 1201 (10th Cir.2013) (“extending” the recognized Heller exceptions to cover regulations on the carrying of concealed firearms, stating that “[i]n light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment’s protections”).” Id at 433
Woollard v. Gallagher, 712 F. 3d 865 – Court of Appeals, 4th Circuit (2013)
“The district court permanently enjoined enforcement of section 5-306(a)(5)(ii) of the Public Safety Article of the Maryland Code, to the extent that it conditions eligibility for a permit to carry, wear, or transport a handgun in public on having “good and substantial reason” to do so. Necessary to the entry of the court’s injunction was its trailblazing pronouncement that the Second Amendment right to keep and bear arms for the purpose of self-defense extends outside the home, as well as its determination that such right is impermissibly burdened by Maryland’s good-and-substantial-reason requirement. See Woollard v. Sheridan, 863 F.Supp.2d 462 (D.Md.2012). Because we disagree with the court’s conclusion that the good-and-substantial-reason requirement cannot pass constitutional muster, we reverse the judgment without needlessly demarcating the reach of the Second Amendment.” Id at 868
National Rifle Ass’n v. Bureau of Alcohol, Tobacco, 700 F. 3d 185 – Court of Appeals, 5th Circuit (2012)
“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. 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 …. [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id at 193
National Rifle Ass’n of America, Inc. v. McCraw, 719 F. 3d 338 – Court of Appeals, 5th Circuit (2013)
“For example, the Court said, “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.”” Id at 346
Moore v. Madigan, 702 F. 3d 933 – Court of Appeals, 7th Circuit (2012)
“And a state may be able to require “open carry” — that is, require persons who carry a gun in public to carry it in plain view rather than concealed. See District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783; James Bishop, Note, “Hidden or on the Hip: The Right(s) to Carry After Heller,” 97 Cornell L.Rev. 907, 920-21 (2012).” Id at 938
US v. Fincher, 538 F. 3d 868 – Court of Appeals, 8th Circuit (2008)
“[T]he 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.” Id at 873
Peterson v. Martinez, 707 F. 3d 1197 – Court of Appeals, 10th Circuit (2013)
“With respect to Peterson’s claims against the Denver sheriff, we conclude that the carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause.” Id at 1201
Heller v. District of Columbia (Heller II), 670 F. 3d 1244 – Court of Appeals, Dist. of Columbia Circuit (2011)
“The Court identified other historical limitations upon the scope of the right protected by the Second Amendment. For example, it noted “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.”” Id at 1252
Peruta v. County of San Diego, 742 F. 3d 1144 – Court of Appeals, 9th Circuit (2014) (vacated)
“To be clear, we are not holding that the Second Amendment requires the states to permit concealed carry.” Id at 1172.
“The majority’s first — and crucial — mistake is to misidentify the “conduct at issue.” Chester, 628 F.3d at 680. The majority frames the question as “whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.” This is certainly an important issue, but it is not the question we are called upon to answer. The Plaintiffs are not seeking a general license to carry firearms in public for self-defense — they are seeking a license to carry concealed firearms in public.” Peruta dissent at 1181.
“Although all the nineteenth-century cases cited by the majority cautioned against restrictions on the open carrying of weapons, none of them — except the discredited, outlier Bliss — suggests that restrictions on carrying concealed weapons implicate the Second Amendment. See Chandler, 1 La.Ann. at 490; Nunn, 1 Ga. at 251; Reid, 1 Ala. at 616-17. And nothing in these cases or Chase’s Blackstone even hints that a restriction on carrying concealed weapons would become invalid if restrictions were placed on open carry. Rather, they suggest that restrictions on concealed carry are always valid, while there are limits to restrictions on open carry.” Peruta dissent at 1195
Note that it is “the Second Amendment right recognized in Heller” which is binding on all states and local governments. Not the imagined right to carry concealed which the Supreme Court in Heller clearly states is not a right under the Second Amendment.
http://CaliforniaRightToCarry.org
Hightower v. City of Boston, 693 F. 3d 61 – Court of Appeals, 1st Circuit (2012)
“Under current Supreme Court precedent, Hightower cannot make out her Second Amendment claim as to the concealed weapon aspect of her revoked license, as she must for her as-applied challenge to succeed. Under our analysis of Heller, as follows, the government may regulate the carrying of concealed weapons outside of the home.
In Heller, the Court explained that “the right secured by the Second Amendment is not unlimited” and noted that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under Second Amendment or state analogues.” 128 S.Ct. at 2816. We have interpreted this portion of Heller as stating that “laws prohibiting the carrying of concealed weapons” are an “example[] of `longstanding’ restrictions that [are] `presumptively lawful’ under the Second Amendment.” United States v. Rene E., 583 F.3d 8, 12 (1st Cir.2009) (quoting Heller, 128 S.Ct. at 2816-17 & n. 26); see also Robertson v. Baldwin, 165 U.S. 275, 281-82, 17 S.Ct. 326, 41 L.Ed. 715 (1897) (observing that “the first 10 amendments to the [C]onstitution” protect rights that are “subject to certain well-recognized exceptions” and stating, in dicta, that the Second Amendment right “is not infringed by laws prohibiting the carrying of concealed weapons”).[9] Licensing of the carrying of concealed weapons is presumptively lawful, and Hightower makes no serious argument to the contrary.” Id at 73-74.
Kachalsky v. County of Westchester, 701 F. 3d 81 – Court of Appeals, 2nd Circuit (2012)
“Notably, Chandler and Reid conflict with Plaintiffs’ position, at least in part. Plaintiffs contend that a state may choose to ban open carrying so long as concealed carrying is permitted. But both Chandler and Reid suggest that open carrying must be permitted. The Reid court explained:
Under the provision of our constitution, we incline to the opinion that the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence.
1840 WL 229, at *5; see also Chandler, 1850 WL 3838, at *1.” Id at [fn 13]
Drake v. Filko, 724 F. 3d 426 – Court of Appeals, 3rd Circuit (2013)
“New Jersey’s longstanding handgun permitting schema is not an anomaly. Many recent judicial opinions have discussed historical laws regulating or prohibiting the carrying of weapons in public. See, e.g., Peterson v. Martinez, 707 F.3d 433*433 1197, 1201 (10th Cir.2013) (“extending” the recognized Heller exceptions to cover regulations on the carrying of concealed firearms, stating that “[i]n light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment’s protections”).” Id at 433
Woollard v. Gallagher, 712 F. 3d 865 – Court of Appeals, 4th Circuit (2013)
“The district court permanently enjoined enforcement of section 5-306(a)(5)(ii) of the Public Safety Article of the Maryland Code, to the extent that it conditions eligibility for a permit to carry, wear, or transport a handgun in public on having “good and substantial reason” to do so. Necessary to the entry of the court’s injunction was its trailblazing pronouncement that the Second Amendment right to keep and bear arms for the purpose of self-defense extends outside the home, as well as its determination that such right is impermissibly burdened by Maryland’s good-and-substantial-reason requirement. See Woollard v. Sheridan, 863 F.Supp.2d 462 (D.Md.2012). Because we disagree with the court’s conclusion that the good-and-substantial-reason requirement cannot pass constitutional muster, we reverse the judgment without needlessly demarcating the reach of the Second Amendment.” Id at 868
National Rifle Ass’n v. Bureau of Alcohol, Tobacco, 700 F. 3d 185 – Court of Appeals, 5th Circuit (2012)
“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. 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 …. [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id at 193
National Rifle Ass’n of America, Inc. v. McCraw, 719 F. 3d 338 – Court of Appeals, 5th Circuit (2013)
“For example, the Court said, “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.”” Id at 346
Moore v. Madigan, 702 F. 3d 933 – Court of Appeals, 7th Circuit (2012)
“And a state may be able to require “open carry” — that is, require persons who carry a gun in public to carry it in plain view rather than concealed. See District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783; James Bishop, Note, “Hidden or on the Hip: The Right(s) to Carry After Heller,” 97 Cornell L.Rev. 907, 920-21 (2012).” Id at 938
US v. Fincher, 538 F. 3d 868 – Court of Appeals, 8th Circuit (2008)
“[T]he 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.” Id at 873
Peterson v. Martinez, 707 F. 3d 1197 – Court of Appeals, 10th Circuit (2013)
“With respect to Peterson’s claims against the Denver sheriff, we conclude that the carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause.” Id at 1201
Heller v. District of Columbia (Heller II), 670 F. 3d 1244 – Court of Appeals, Dist. of Columbia Circuit (2011)
“The Court identified other historical limitations upon the scope of the right protected by the Second Amendment. For example, it noted “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.”” Id at 1252
And from the now vacated three judge panel decision in Peruta v. County of San Diego, 742 F. 3d 1144 – Court of Appeals, 9th Circuit (2014) “To be clear, we are not holding that the Second Amendment requires the states to permit concealed carry.” Id at 1172.
As as Circuit Judge Thomas (now Chief Judge of the 9th Circuit Court of Appeals) observed in his dissent:
“The majority’s first — and crucial — mistake is to misidentify the “conduct at issue.” Chester, 628 F.3d at 680. The majority frames the question as “whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.” This is certainly an important issue, but it is not the question we are called upon to answer. The Plaintiffs are not seeking a general license to carry firearms in public for self-defense — they are seeking a license to carry concealed firearms in public.” Peruta dissent at 1181.
“Although all the nineteenth-century cases cited by the majority cautioned against restrictions on the open carrying of weapons, none of them — except the discredited, outlier Bliss — suggests that restrictions on carrying concealed weapons implicate the Second Amendment. See Chandler, 1 La.Ann. at 490; Nunn, 1 Ga. at 251; Reid, 1 Ala. at 616-17. And nothing in these cases or Chase’s Blackstone even hints that a restriction on carrying concealed weapons would become invalid if restrictions were placed on open carry. Rather, they suggest that restrictions on concealed carry are always valid, while there are limits to restrictions on open carry.” Peruta dissent at 1195
“[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
“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
“[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.
“We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.” McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010) at 3050.
Note that it is “the Second Amendment right recognized in Heller” which is binding on all states and local governments. Not the imagined right to carry concealed which the Supreme Court in Heller clearly states is not a right under the Second Amendment.
http://CaliforniaRightToCarry.org
Ironically, the relevant briefs are available for free online at Peruta’s NRA lawyer (Chuck Michel) website -> http://michellawyers.com/guncasetracker/perutavsandiego/
The court of appeals almost invariably limits the scope of the appeal to the issues raised in the Appellant Opening Brief which were also argued in the district court. Peruta’s opening brief is here -> http://michellawyers.com/wp-content/uploads/2010/11/Peruta-Opening-Brief.pdf
California Penal Code section 12031 refers to California’s 1967 ban on carrying loaded firearms (openly) in public (the Black Panther ban) which is now codified in part as PC 25850. The California Gun-Free School Zone Act of 1995, which the brief argues would be “drastic” were it to be overturned, is PC 626.9.
This guy you refer to is unlikely to read the briefs, even though they are written in plain English, so perhaps you can persuade him to spend one minute of his time to watch NRA lawyer Paul Clement (the same lawyer who argued against Heller in the Supreme Court) saying that the state may place restrictions on the Second Amendment in public, in particular a ban on Open Carry -> https://youtu.be/MRgTihlLOHk
You might want to show him the video first. If he thinks the NRA lawyer is saying something other than what he actually said then having him read the appellant opening brief would be pointless.
I do not understand equating self defense with mutual combat, or at the very least putting it under the same mantle, which is what seems to be happening here. I’d hardly consider being pressed into defending oneself mutual combat. Could you not also just as creatively as putting self defense under mutual combat consider a mugger, or home invader a highwayman and thus press the exemption for using a concealed weapon upon that?
The fundamental premise that using a concealed weapon to legitimately defend oneself is illegal in all but the narrowest of circumstances is the problem, not part about concealing the weapon.
Open and concealed carry should not be illegal.
Keep in mind that Open Carry wasn’t some magical get out of jail free card. If one were to walk up to another person, draw his sword, and kill the person (even if the other person were armed) then he was guilty of murder and not manslaughter. Similarly, someone who made threatening statements towards or regarding another, that person could be brought before the courts and be required to post a “surety” to guarantee his good behavior.
Matt wrote:
“The fundamental premise that using a concealed weapon to legitimately defend oneself is illegal in all but the narrowest of circumstances is the problem, not part about concealing the weapon.”
My response:
Here is the reason given by a recent California appellate court in upholding prohibitions on concealed carry without using Heller’s language regarding people who carry concealed being cowards, criminals and effeminate:
“The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon. In light of this policy, the question whether a particular weapon was concealed should be considered from the point of view of one approaching the location of the weapon, and the intent of the defendant as to concealment should not be considered, since a defendant’s innocent intent does not make a concealed weapon any more visible.” People v. Mitchell, 209 Cal. App. 4th 1364 – Cal: Court of Appeal, 4th Appellate Dist., 1st Div. (2012) at 1371.
California Right To Carry -> http://CaliforniaRightToCarry.org
Your first response still does not address what open versus concealed carry has to do with self defense. We aren’t talking about mutual combat, or an unprovoked murder. We are talking about reacting to the individual with murderous or criminal intent, not being that individual.
The entire quote in the second response, for all I know, is much more specific that what is shown here but I lack the time to read the full case history. Within the context of that snippet, I cannot comprehend the logic of it. A person who defends them self with a concealed weapon is now the bad guy because a ne’er do well approached them under the assumption they were not armed because no weapon was visible?
Why would you attempt to work under such a ridiculous framework and not opt to change it?
Matt Said:
… I lack the time to read the full case history.
My response:
Herein lies your problem. American case law affirming the mere carriage of weapons concealed goes back to at least 1831. English common law case law regarding the prohibition on the use of concealed weapons goes back more than 100 years before that.
Your “lack of time” is not my problem nor does it change the fact that there has never been a right to carry a weapon concealed under the Second Amendment.
Go back to the original premise supporting placing 2A in the first amendments to the constitution. At that point in history, concealing “long guns” and flintlock pistols and swords was most difficult. The reasoning was that anyone who would take the time to actually conceal a firearm or other weapon was up to know good because open display of weapons was so common (which has not been the case in the US for over 100 years). People who concealed weapons in 1791 could only be criminals and assassins wanting to hid their intention until it was too late for the average citizen to respond. Courts have maintained this theory of weapon carry ever since. Right or wrong, it is the prevailing legal theory underpinning jurisprudence since before the Revolution. Changing law would either require a new amendment (or modification of 2A), meaning full ratification, or a piece of legislation that specifically addresses concealed carry as new right devolved from 2A. The latter might be easier to do, but also be much easier to undo than a full-up amendment.
The argument in the law suit in question is that courts have historically and consistently held that open carry is covered by the constitution, and state restrictions are invalid. The lawsuit in question seeks to have a clear declaration that open carry cannot be infringed, no matter the stance on concealed carry. Win the open carry argument and maybe it can be leveraged to eventually result in concealed carry being protected. Lose the open carry suit, and states and the federal government can freely infringe (including unwarranted confiscation).
“Shouldn’t” has a poor track record in courts.
We may be amidst an esoteric battle here, between people who believe government “shouldn’t” be able to put any restrictions on 2A, and a person who is trying to establish the fact the all previous SC decisions regarding RTKBA ruled that open carry is exactly the form the constitution covers. If governments are allowed to prevent exercise of a court-sanctioned definition of 2A, then none of the derivative “rights” matter. It seems fruitless to argue in court that concealed carry is a right, when those same courts have consistently ruled that only open carry is a “right”. Win the superior battle first, then take on the logical extensions.
I have a right to keep and bare arms , I am a ‘ people ‘.
I must have that armament on me in order for me to keep it or bare it .
If it is on me , it may be in my pants pocket and if the pocket is large enough and not see through , it may be concealed until I bare it .
If I am not breaking any laws then I have a right to have my armament concealed in my pocket and not have to worry about being searched without probable cause .
Any documented instance where self-righteousness prevailed at trial? Want to, cudda, shudda, and Felix Unger have never been persuasive. Under the law as interpreted by the courts, using historical references and case law, the man has a point: there is no right (civil or natural) to a concealed weapon. Bearing an armament is not physically restricted to concealment. A person can quite capably carry an armament exposed in plain sight. We all want the politicians and courts to follow the law, but we don’t demand the same of ourselves when it is inconvenient or onerous. There are invalid laws in existence, and we either obey them, or rebel…at our peril. The other option is to change the laws, while suffering the consequences for either ignoring the law or disobeying while trying to change the laws. Oh yes, there is jury nullification, but rare. And to get a jury to nullify, you need to first come to trial. You must break the law and be arrested. You don’t get a pass because you want one.
“By comparison, NRA lawyer Paul Clement, who bills his clients around $1,300 an hour will get paid by the NRA when he loses.”
Mr. Clemente does have a mixed record of success in his specialty of appellate cases. Then again, anyone with significant experience in that field does, as you’re on the leading edge of the law. That’s rough territory.
Nevertheless, Mr. Clemente is extremely experienced and with only few peers. At last count, he’s #8 on the all time list of individuals who’ve argued the most cases before the U.S. Supreme Court. (Since 2000, he’s #1). Only guys like Daniel Webster, yes, the Daniel Webster, argued more. They’re dead, while Clemente is in his early 50s.
Get used to him, as he’s on the short list for a SCOTUS appointment in the next GOP presidential administration.