By Charles Nichols
Today, Tuesday, January 31st, we finally learned the names of the three judges assigned to the Flanagan v. Bonta case (SCHROEDER, TALLMAN, and IKUTA). Schroeder is an opponent of the Second Amendment, Tallman and Ikuta are a coin toss despite the latter’s position in the Young v. Hawaii three-judge panel opinion.
The composition of the three-judge panel does tend to explain the Order of December 23rd, instructing both sides to file a letter brief discussing:
“(1) whether the appellees’ voluntary cessation renders this case moot…and (2) whether we should depart from our prior practice of “vacat[ing] the judgment of the district court and remand[ing] [the] case to the district court for further proceedings pursuant to” the Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v. Bruen…”
AG Bonta filed his letter brief at 5:21 PM on the last day (January 25th). Late that night (9:51 PM), the CRPA filed its letter brief, but then filed a corrected brief two days later. Typical.
Unsurprisingly, the State of California’s position is that the case should be dismissed as moot, and the CRPA takes the opposite view.
Surprisingly, the CRPA has evoked Open Carry as a reason why its case is not moot saying:
“While this litigation has been refocused on the “good cause” requirement in light of Bruen’s holding a similar provision unconstitutional, the constitutional right that Appellants sued to vindicate is their right to bear arms publicly in some manner. That is why Appellants did not limit their challenge to the “good cause” requirement but also challenged the state’s open carry regime. X ER at 218. While repeal of the “good cause” requirement would grant Appellants the relief they seek if the rest of California law remains static, the legislature has made clear that that is not what is going to happen. Indeed, the reason the legislature has not yet repealed the “good cause” requirement is because it fully intends to replace it with something that will make it just as difficult for law-abiding citizens to exercise the constitutional right that Bruen recognized.”
There are a couple of fatal flaws to that argument. First and foremost is that none of the plaintiffs has standing to challenge California’s Open Carry bans, notwithstanding that the district court judge never ruled on the constitutionality of California’s ban on openly carrying a loaded handgun because the plaintiffs either disavowed any intention of openly carrying a loaded firearm anywhere or for any reason, or because the lone plaintiff who did not disavow Open Carry failed to articulate a concrete plan, or any plan, to openly carry a loaded handgun in violation of the law. The NRA lawyers in the district court and on appeal argued that California’s Open Carry bans are constitutional so long as the “good cause” requirement for a concealed carry permit is enjoined.
Another fatal flaw is that California has not passed any new legislation and until it does, there is no Federal “case or controversy” over laws that do not exist.
The oral argument for this case is still scheduled for February 8th at 9:00 am Courtroom 1, Richard H. Chambers US Court of Appeals, Pasadena. Oral argument can be canceled at any time between now and then. If oral argument takes place then the video will be made available on the circuit court’s YouTube channel.
The Baird v. Bonta opening brief is due tomorrow. It will be interesting to see if the Baird opening brief lists the Flanagan appeal as a related case.
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