Opinion| California Open Carry – Ten Years Ago Today

It was 10 years ago today, May 26, 2011, I announced my intention to file a lawsuit against California’s Loaded  Open Carry ban.

To show how naive the head of the local Members Council was about the NRA, he sent out an email asking his membership to support my lawsuit.

The very next day, the NRA sent out a statewide opposition to my California Open Carry lawsuit to everyone in every Members Council.

The opposition was signed by:

H. Paul Payne
NRA Members’ Council Program Administrator

It was signed above the letterhead of Michel and Associates, the law firm headed by NRA lawyer Chuck Michel who has waged a decade-long war against Open Carry, funded by the NRA.

The two-page opposition letter concluded by saying:

“Among other reasons why the proposed suit is ill-advised, the NRA’s attorneys have informed me that there would likely be detrimental, unintended consequences by bringing this lawsuit now, beyond merely jeopardizing a victory in the Peruta matter.”

As much as I would like to take credit for the loss of the concealed carry lawsuit, Peruta v. San Diego, the NRA lost that case all on its own.

My notice of appeal was filed on May 27, 2014. My appeal was stayed until the 9th circuit court of appeals published its en banc opinion in Peruta v. San Diego.

It was only after Peruta v. San Diego lost en banc that I was allowed to file my opening brief on appeal. It was not until February 15, 2018, that I was allowed to argue my case before a three-judge panel of the 9th circuit court of appeals. By that time, the cert petition in Peruta v. California (formerly San Diego) had long since been denied.

Because of the concealed carry loss in Peruta v. San Diego, the NRA lost its concealed carry lawsuits against the Sheriffs of Orange and Los Angeles Counties, as did the baker’s dozen of lawyers who filed separate concealed carry lawsuits.

I predicted that all of those lawsuits would crash and burn leaving my California Open Carry lawsuit the last one standing.

I was right.

I did file a motion and an Amicus Brief in Peruta v. San Diego in which I was the only one who argued in support of the 9th circuit not deciding the Open Carry question because that question was not properly before it given that the Plaintiffs’ legal argument was that it is constitutional to ban Open Carry.

I won that argument in Peruta.

After I argued my appeal and it was taken under submission for a decision, submission was vacated 12 days later pending the final decision in Young v. Hawaii, en banc. Technically not a stay but vacating submission for a decision meant there would be no decision in my appeal until there was a final decision in Young v. Hawaii.

Ironically, the threshold Second Amendment Open Carry question in Young v. Hawaii was not answered by the en banc opinion in Young v. Hawaii despite the 200+ pages of verbiage.

The threshold question in Young v. Hawaii was whether or not the Second Amendment is limited to the interior of our home.

The Young v. Hawaii opinion said that “small and concealable” arms are not protected by the Second Amendment and therefore there is not any right, fundamental or otherwise, to carry “small and concealable” arms openly or concealed.

We will not know if the 9th circuit court of appeals can find a right to keep and bear arms under either the 2nd or 14th Amendment until there is an opinion issued in my appeal.

Coincidentally, it was May of 1967 when approximately 30 Black men and women staged their impromptu protest of what would become The Mulford Act of 1967 banning Loaded Open Carry. It was May 1st, 2014, when Federal District Court Judge Samuel James Otero published his final judgment in my California Open Carry appeal. And it was May 27th of that same year my notice of appeal was filed.

Now retired Judge Otero compared firearms to crystal meth and people who carry firearms to dealers in crystal meth.

Keep in mind that according to the United States Supreme Court, if a machine gun is legally possessed by a person who has paid the $200 tax then the possession of the machine gun is an innocent act.

According to the California Supreme Court, including as recently as 2012, possession of a firearm is in, and of itself, an innocent act.

Nothing surprises me anymore although I am a little bit surprised that there has not been an opinion issued in my California Open Carry lawsuit, Charles Nichols v. Gavin Newsom, et al.

It has been two months now since the 9th circuit en banc opinion in Young v. Hawaii was published. On Facebook, I gave the following as a possible reason why there has not yet been an opinion issued in my case. I will close this newsletter by quoting it here.

California Penal Code section 25850(a) says in relevant part:
A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.

There is a canon of statutory construction “expression unius est exclusion alterius” which means, “When one or more things of a class are expressly mentioned. others of the same class are excluded.”

An early draft of the legislation said, “cities.” This was changed to “incorporated cities.” Under the canons of statutory construction, the Loaded Open Carry ban does not apply to “unincorporated” cities, towns, or villages.
“Prohibited area of unincorporated territory” is not defined in this code section. The definition, such that it is, can be found in California Penal Code section 17030, which states if full, “As used in this part, “prohibited area” means any place where it is unlawful to discharge a weapon.”

The problem with that definition of “prohibited area” is that it is impossible to determine where, outside of an incorporated city, the Loaded Open Carry ban applies.

An example I gave in my opening brief was it is always lawful to discharge a firearm to prevent a murder and it is always unlawful to discharge a firearm to commit a murder.

Either interpretation renders the law nugatory.

Another example I gave was that Los Angeles County has prohibitions on the discharge of a weapon but its local ordinance explicitly says that those prohibitions do not apply to the discharge of a firearm in self-defense.

The State of California, instead of arguing in support of some interpretation, argued that some local government likely put up signs saying where the Loaded Open Carry ban applies, and since signage is an application of the law, the law is not vague in every single circumstance and is therefore constitutional.

In any other lawsuit, the three-judge panel would have held that the defendants waived their defense.

The State of California did concede that unloaded firearms are not loaded in oral argument.

It is things like this that might explain why it is taking so long for an opinion to be issued in my appeal. It has been two months since the en banc opinion in Young v. Hawaii was published.

If Young v. Hawaii resolved my case in favor of the State of California, then my appeal could have been disposed of in an unpublished memorandum opinion two months ago

Charles Nichols
Redondo Beach, CA 

https://californiaopencarry.us11.list-manage.com/track/click?u=8983547b55225326e869dd6a1&id=ee0cd17bb8&e=7161fca994


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Happy Realist

NRA = Not Real Advocates

Want Open Carry? Constitutional Carry?

Go with Gun Owners of America

Charles Nichols

I contacted both the Gun Owners of America and its sister organization, the Gun Owners of California. When I was still in the district court, the Gun Owners of California said that it would file an Amicus brief in support of my lawsuit but then changed its mind and aligned itself with the NRA’s Peruta v. San Diego concealed carry lawsuit which argued that bans on Open Carry are constitutional.

More recently, I contacted a lawyer who represents the Gun Owners of America who said he would have to get approval to represent me.

Gun Owners of America did not give its approval. This is not surprising given that Gun Owners of America had already aligned itself with the NRA’s claim that it is constitutional to ban Open Carry when it filed its Amicus brief in support of the Peruta v. San Diego concealed carry lawsuit.

Until his fairly recent death, the President of both Gun Owners of America and Gun Owners of California was former California State Senator H.L. Richardson who voted for the 1967 California Loaded Open Carry ban and who voted for the bill that raised the threshold to carry a loaded firearm from a reasonable fear of serious bodily injury to “grave, immediate danger.”

Take a look at the list of so-called gun-rights groups that filed Amicus briefs in support of the NRA’s claim that bans on Open Carry are constitutional and you will discover that they all opposed Open Carry.

The problem is that most gun owners don’t even know where to find the en banc opinion in Peruta v. San Diego let alone who filed Amicus briefs in the case.