Baird v. Becerra (USDC Eastern District of CA) Open Carry

[BAJ475]

Originally Posted by taperxz

You’re gonna lose and you’re gonna push back open carry rights into another court with bad precedence that your case will leave behind.

Just the fact that you have difficulties expressing yourself in a public forum shows that in a court of law, you may be your own worst enemy.

"May be." You have some doubt?

[TruOil]

Originally Posted by mcbair

Read PC 26150, and 26155. Show good cause, and may issue are still part of the language. I saw the memo Bonta sent to “issuing agencies”. It is just what it says, a memo. Bonta cannot force District attorneys not to prosecute, nor can he compel any successor to comply with his memo. Bonta also suggested in his memo that a moral turpitude test just might be used to control the number of permits just as show good cause is used now. .. For around 200 years that we can prove, it was not unlawful to openly carry a loaded weapon anywhere in California. It has been illegal to open carry for around 10 years for unloaded handguns and since 1968 for loaded handguns. I

One, California has not been around as a state for 200 years, although you are correct that the open carry bans are of very recent lineage and thus suspect under Bruen. The earliest controls are probably those enacted by San Francisco in the early 1900s, laws that have an express racist underpinning that may damn all such laws. I find it difficut to believe that state attorney generals are arguing that HTT is satisfied by laws that were explicitly racist.

Two, just because the language is still in the statute is meaningless, since a statute held to be unconstitutional may remain on the books until repealed. Hence, Bruen overruling "good cause" is applicable to the cited Penal code sections.

Three, I have read Bonta's memo, and he is correct that "good moral character" was not ruled on by Bruen. But at the same time, unless Bonta is a complete idiot (a distinct possibility), ANY discretion vested in a government official to deny on subjective factors included within "good moral character" such as those suggested by Bonta, do not withstand a Bruen analysis.

Finally, I don't see what laws prosecutors will be prosecuting, except for possession of a concealed firearm without a CCW. Anyone who has applied AFTER Bruen should not be subjected to a good cause requirement after Bruen by any issuing agency, as applying that condition opens them up to a civil rights action.

[press1280]

Originally Posted by mcbair

Agreed, these things can’t be fixed overnight. Let’s ask ourselves a question.
Is it acceptable for a State Legislature, a single state agent (with no appeal process), or a state agency to knowingly pass, enforce, or invent Unconstitutional laws, regulations, or interpretations of these things?
During the time of the adoption of the Bill of Rights it was considered Constitutional and lawful to carry any firearm required, in any manner chosen by the individual, any where one chose to carry, for any LAWFUL purpose. Self defense was considered an individual, pre- governmental, God given right. Self defense was considered the most important of the Laws of Nature and of Nature’s God.
I was not wired to accept tyranny, even though it may be time consuming to defend my Right against government Wrongs.
The USSC would have to set aside its own rulings in NYSRPA to disagree with the causes of action in this case.
The Second Amendment is not a second class right.
If the individuals conduct is consistent with the plain text of the amendment, it is presumptively Constitutional. The Bruin test!
The Second Amendment protects the right of the individual to carry weapons outside the home.
The government may not use interest balancing to justify denial of Second Amendment guarantees because the Amendment itself is the very product of the balance of the public’s Liberty verses the governments desire to take that Liberty.
During the founding era there is no history of any widely held or generally accepted regulation or prohibition of the open carry or personal weapons for the purpose of self defense outside the home.
When history after the founding era conflicts with the plain text, the text wins out.
I could go on, and on, and on, but you should get the point.
The NYSRPA case was a concealed carry case, that is true, however the USSC also set the bar for all subsequent 2A litigation with the Bruin test and the other stuff I outlined and more! The worst offenders, New York, California among them thumb their nose at the Court, thumb their nose at the people and thumb their nose at Liberty!
I am not ok with this and will do my best to defend my Liberty!

Again, I agree with you but unfortunately SCOTUS (or appeals/district courts) has to specifically rule on these, which they haven't. Bruen may make some of this pretty clear, but again it has to be ruled upon.
So the state can get away with these new laws until the court stops it. But if the state keeps getting more and more ridiculous, the district judges will start getting the message and these new laws will be struck in short order and the state will start paying out the nose to plaintiffs.

[mcbair]

TruOil,
I did not say California has been a state for 200 years. I said, open carry of a loaded weapon has been unregulated, and quite unremarkable, for at least 200 years that we can prove. Under Spanish, Mexican, and United States rule, open carry was a normal and unremarkable method of self defense. California stripped all of us of our pre-governmental right in order to stop the black panthers from the open carry of loaded weapons, and finally, Little Anthony Portantino, made the claim that, “No one needs to carry a gun to order a cheeseburger”, which was the end of open carry of unloaded weapons.

Is all of this really so difficult to grasp? We have been stripped of our pre-governmental right to self defense, first over racial animus towards a couple of minority groups, with the final blow, in the name of “Public Safety”.

If you personally are ok with all this, the God Bless you, and may your chains rest lightly upon you. Lick the hand that feeds you. Be content to sit by your master’s table and wait until he flicks a scrap of food onto the floor.

Patrick Henry once said, “Is life so sweet, or peace so dear, as to be purchased with the price of chains, and slavery? Forbid it Almighty God! For I know not what course others may take; but as for me, give me Liberty, or give me death.”

Subject or free, the choice is yours.



Concealed carry was perfectly lawful in California until 1917, except for a brief period from 1861 until 1869. In 1917 the Sheriff of Los Angeles County claimed he was afraid that Pancho Villa’s men would “sneak over the Mexican Border with guns in their pants to murder Angelenos in their beds”. In order to prevent Mexicans from concealed carry, everyone in California became subjects of the government.

[Librarian]

Originally Posted by TruOil

Two, just because the language is still in the statute is meaningless, since a statute held to be unconstitutional may remain on the books until repealed. Hence, Bruen overruling "good cause" is applicable to the cited Penal code sections.

And, the laws might never be repealed or removed from the Penal Code; they become unenforceable due to court rulings, and just lie there.

[mcbair]

If it is true that USSC ruling overturns statutes, then why is it that Californians, after Heller, McDonald, Caetano, etc etc still have no second amendment guarantees? After NYSRPA, how could the DOJ hold that People v Diaz dismissal was just a mistake? How does the California Legislature continue to pass unconstitutional anti Second Amendment laws, which the people must fight using their own money to oppose government , taxpayer funded lawyers. If it’s true that Circuit courts are “inferior to the USSC as the Article 3 “Supreme Court”, why are we having this conversation at all? I still find it hard to believe some would rather beg a corrupt governments permission to do that which we have the God given Right to do!

[mcbair]

Appeal filed to Ninth Circuit

[TruOil]

Originally Posted by mcbair

If it is true that USSC ruling overturns statutes, then why is it that Californians, after Heller, McDonald, Caetano, etc etc still have no second amendment guarantees? After NYSRPA, how could the DOJ hold that People v Diaz dismissal was just a mistake? How does the California Legislature continue to pass unconstitutional anti Second Amendment laws, which the people must fight using their own money to oppose government , taxpayer funded lawyers. If it’s true that Circuit courts are “inferior to the USSC as the Article 3 “Supreme Court”, why are we having this conversation at all? I still find it hard to believe some would rather beg a corrupt governments permission to do that which we have the God given Right to do!

A S.Ct. decision can only apply to laws that have been written, not to ones that haven't been passed yet. Legislators are immune from being sued for passing bad laws, so if they disagree with a given decision, there is nothing to stop them from passing another law, such as the NY and NJ recently revised CCW carry laws. Further, there are always questions as to how a given decision applies in a different context to a different law, and thus many llaws must be individually challenged.

[wchutt]

Originally Posted by mcbair

Appeal filed to Ninth Circuit

Is there a place to read it?

[pbreed]

https://assets.nationbuilder.com/fir...Appellants.pdf

[abinsinia]

Seems like a slam dunk. I hope you get real judges on the appeal.

[command_liner]

Originally Posted by TruOil

A S.Ct. decision can only apply to laws that have been written, not to ones that haven't been passed yet. Legislators are immune from being sued for passing bad laws, so if they disagree with a given decision, there is nothing to stop them from passing another law, such as the NY and NJ recently revised CCW carry laws. Further, there are always questions as to how a given decision applies in a different context to a different law, and thus many llaws must be individually challenged.

It is worth bringing up again that the legislature passes laws it knows are not constitutional because (in part) they are relying on the privilege of assumed constitutionality the courts afford to laws passed by the legislature.

At some point the courts might drop this assumption because the legislature is just clearly wasting the time of the courts, and wasting the time of the people, for the clear and unambiguous purpose of denying the people their civil rights.

Would courts today agree to grant the privilege of assumed constitutionality to new laws that were directly, clearly and obviously meant to subvert, nullify or delay the 13th Amendment? Probably not: the courts could use their discretion as a co-equal branch of government to very quickly work against such laws passed by the legislature and signed by the executive.

As mentioned before, if I had nothing to do, I would write a few good pieces on this concept of abrogation of the concept of presumed constitutionality.

[Drivedabizness]

The Voting Rights Act removed the ability of a number of States that had formerly joined the Confederacy & enacted Jim Crow las to make election law without pre-clearance from the US DOJ.

While the current DOJ is no friend of gun rights, it might be helpful to limit the ability of CA and the other recalcitrant States to make gun laws without pre-clearance.

A follow up to the Firearms Owners Protection Act, codifying quick, inexpensive, objective and Shall Issue/constitutional carry, along with reciprocity and protection from improper sensitive place designations would be very nice.

It should also codify Hellers in common use for lawful purposes language.

[ritter]

Originally Posted by pbreed

https://assets.nationbuilder.com/fir...Appellants.pdf

This appeal makes a couple of very interesting references that may end CA9 in a bind. CA9 has found that:

1. Laws that impede a Constitutional right are always an irreparable injury.
2. It is always in the states interest to see such law enjoined, the government suffers no harm from enjoining an unconstitutional law.
3. There is only a privilege of concealed carry in CA, not a right.
4. There is no right to open carry.

I'm not sure how CA9 wriggles out of their own rulings here, but I'm sure they'll find a way.

[wchutt]

Originally Posted by pbreed

https://assets.nationbuilder.com/fir...Appellants.pdf

Thank you!

[Rusty Bolts]

When is it going to be time to start holding the individuals who are blatantly and repeatedly using office to attack and strip away the right of the People accountable? When do we sue Gavin Newsome as well as the Office of the Governor? When do they get some skin in the game? What does it take? (I really would like an answer to that last one.)

Asking for a friend, don't ya know.

Rusty Bolts

[command_liner]

Originally Posted by pbreed

https://assets.nationbuilder.com/fir...Appellants.pdf

Very good brief. Only 2 typos!

A comment from the Duncan work applies here too. The brief could have included the California Constitution bit...
"The State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land." -ARTICLE III STATE OF CALIFORNIA SEC. 1

If it is the *supreme law*, then why is the state wasting tens of millions of dollars arguing that somehow the plain meaning of the US Constitution is not the supreme law?

Also the MLK quote applies here, because the anti-gun / anti-freedom laws we are all working against represent the last vestige of Jim Crow.

We shall overcome because the arc of the moral universe is long but it bends toward justice.
–Dr. Martin Luther King Jr., “Remaining Awake Through a Great Revolution.” Speech given at the National Cathedral, March 31, 1968.

[mcbair]

The California Charter of Rights means nothing in this state.
Cal Constitution Art 1, Sec 1; Art 2 Sec 1 is appropriate; Art 3 Sec 1 is also very concise and unambiguous. Here is the problem….no one in California government has ever read the California Constitution! Damn few of them have ever read the United States Constitution. Not many of the voters have read either document.

The State’s expert witness, in all things Second Amendment could not recite the Second. Chief Raney thought it said,” something like you can get a gun and keep it at home”. The California Constitution Article 20, miscellaneous items, contains the oath of office. None of the liars in the State Legislature or the Governors executive branch go by the oath even if they did know what was in it.

Brothers in arms, these are great thoughts. But we can not deal honestly with dishonest liars, socialists and crooks. The court is the only hope for the First Amendment Right to petition the government for redress of grievance.
An intellectually honest judge must rule in favor of the Right of the people to do that which the Right itself declares shall not be infringed!

Now that Flanagan has been declared moot, I genuinely hope people will begin to understand why we are trying so hard to restore Constitutional open carry. Any scheme that involves government permission in California will not end well for the people. Is concealed carry tactically superior? Good question but if you must first gain permission from a state that hates Liberty, I’d rather fight from a position of disadvantage.

[press1280]

The brief seems to be conflating the open carry & licensing questions. I see these as 2 very distinct questions.

[mcbair]

True, they are very distinct questions. We must respond to the state. DOJ claims that because concealed carry is an alternative we really don’t need the Right to carry openly. The USSC has rejected this logic, but we must actively oppose it as well, if we hope to succeed.

[press1280]

It'll be interesting how this plays out.
I don't see any other open carry regimes under lawsuit. Need to hit all circuits in order to get a circuit split to get it back to SCOTUS.

[BAJ475]

Originally Posted by press1280

It'll be interesting how this plays out.
I don't see any other open carry regimes under lawsuit. Need to hit all circuits in order to get a circuit split to get it back to SCOTUS.

The problem with hitting all circuits is that only 4 states and DC ban open carry and 9 states require a permit for open carry. See https://worldpopulationreview.com/st...n-carry-states

[mcbair]

Appeal of P.I. Up for oral arguments in front of 9th in June. State’s reply brief opposing our appeal is an odd piece of circular logic. Historically states have regulated the manner of carry, therefore it is ok to regulate “public” carry.
The only “manner” of carry ever regulated was concealed carry, and regulating carry is far different from banning open carry. A ban is not a regulation, it is a ban. In 1828 Future President Andrew Jackson was described as always traveling with a brace of horse pistols in pommel holsters, a pistol on his belt, and a rife. Christopher Spencer walked up to the White House with a rifle in 1860. He talked to the sentrys for a minute then he walked up to the White House door and knocked. He asked to see President Lincoln, and someone took him, with his rifle to see the President. Later Mr Spencer went with Mr. Lincoln to the Capitol Mall where they were seen shooting. Obviously the open carry of loaded weapons was unregulated until well past the founding era. In California, Constitutional carry was unregulated and unremarkable until 1967 loaded and 2013, unloaded.
The liars from DOJ have no case. We will win this. Please help. There is a fundraiser in Anderson CA on March 11, at the Veterans hall. Starts a 4pm. Get tickets at Jone?s Fort in Redding.

[BAJ475]

Originally Posted by mcbair

Appeal of P.I. Up for oral arguments in front of 9th in June. State?s reply brief opposing our appeal is an odd piece of circular logic.

How about a link to the State's reply.

Historically states have regulated the manner of carry, therefore it is ok to regulate ?public? carry.
The only ?manner? of carry ever regulated was concealed carry, and regulating carry is far different from banning open carry. A ban is not a regulation, it is a ban. In 1828 Future President Andrew Jackson was described as always traveling with a brace of horse pistols in pommel holsters, a pistol on his belt, and a rife. Christopher Spencer walked up to the White House with a rifle in 1860. He talked to the sentrys for a minute then he walked up to the White House door and knocked. He asked to see President Lincoln, and someone took him, with his rifle to see the President. Later Mr Spencer went with Mr. Lincoln to the Capitol Mall where they were seen shooting. Obviously the open carry of loaded weapons was unregulated until well past the founding era. In California, Constitutional carry was unregulated and unremarkable until 1967 loaded and 2013, unloaded.
The liars from DOJ have no case. We will win this. Please help. There is a fundraiser in Anderson CA on March 11, at the Veterans hall. Starts a 4pm. Get tickets at Jone?s Fort in Redding.

[SpudmanWP]

Courtlistener Page: https://www.courtlistener.com/docket...&order_by=desc

[mcbair]

That is not our appeal to the Ninth to reconsider the P.I. Which the circuit court denied, nor is it the states opposition to our appeal.

The above link is our objection to Mullers desire to appoint a court expert which she wanted to explain the Second Amendment to her. She has probably never read the Bill of Rights, she certainly doesn’t know what a Right is.

The States reply to her request agrees with ours in its conclusion that no court expert is required to adjudicate this case.

I have not determined how to attach a link to these comments or I would link our appeal and state’s objection. Our reply brief to the Ninth is due soon.
If someone would outline the steps to link a brief, I’ll post them.

[BAJ475]

Originally Posted by mcbair

That is not our appeal to the Ninth to reconsider the P.I. Which the circuit court denied, nor is it the states opposition to our appeal.

The above link is our objection to Mullers desire to appoint a court expert which she wanted to explain the Second Amendment to her. She has probably never read the Bill of Rights, she certainly doesn?t know what a Right is.

I would say "No Sh*t" but it is probably that she knows but simply refuses to do her sworn duty based on her political views. To me that is treason and they should be hung!

The States reply to her request agrees with ours in its conclusion that no court expert is required to adjudicate this case.

That is because they know that their last expert is and was a total idiot and they do not have anyone better.

I have not determined how to attach a link to these comments or I would link our appeal and state?s objection. Our reply brief to the Ninth is due soon. If someone would outline the steps to link a brief, I?ll post them.

While I have not agreed with all of your post, I hope that you do not take that as opposing what you are trying to accomplish. You are not asking for anything more than what the residents of most states can already do.

[mcbair]

PI awarded to plaintiffs in pistol roster case. Why?
Likely to succeed on merits. “ conduct sought by plaintiffs complies with the plain text of the Second Amendment”.

My case, judge and state admit we are likely to succeed on merits but Judge did not consider that because this is only the preliminary phase of proceeding and Bruen test doesn’t apply until the merits phase.

Irreparable harm. Judge ruled in the pistol roster. Denial of Constitutional right is always irreparable harm, even though the state argued that since some pistols were available, the public did not need access to more modern pistols. Our Judge ruled that denial of rights does not constitute irreparable harm because we “may” be allowed to carry concealed, we really don’t need the Second Amendment Right to carry. “ when alleging denial of Constitutional guarantees most courts hold
No further showing of harm is required”.

Balance of equities and public interest. Muller ruled that public safety, ( although she admits Bruen does not allow this argument in the merits phase, is somehow allowed in the preliminary phase), weighs in the governments favor even though 25850 is a ban on an enumerated right. Judge in Pistol roster case said as he granted the PI………”it is always in the public interest to maintain constitutional rights”.

Our reply brief is due today. The last fundraiser was successful thanks once again due to the people of Shasta, Siskiyou, and Tehama counties. We will win this case! Thank you to all who have donated so generously from Northern California!
I thank God that Liberty still has value here.

[SpudmanWP]

Someone needs a recall/impeachment.

There is "activist" and then there is "what Constitution".

[Foothills]

I smiled at the "preclearance" idea. I guess there is precedent. Not sure how helpful it would be when the DOJ changes hands however.

It did occur to me that the Supreme Court COULD remove qualified immunity from any government official or employee who engages in enforcement of any unconstitutional law restricting 2A, just like they would if they violated people's voting rights, or police violating other civil rights. If it works for officials who violate 5A, 6A and 14A rights, let's just add 2A rights in there also.

[mcbair]

Due to my attorneys illness we were granted a two week extension to file our rebuttal to the State’s opposition for P.I. In front of the ninth Circuit.

The Boland case is very good for us. Plaintiffs were granted a P.I. For almost exactly the reasons we are seeking the same. The only difference….the conduct I seek complies verbatim with the plain text of the Second Amendment.

The argument the state makes against the P.I. Is near to exactly the logic rejected in Heller, rejected in McDonald, rejected in Caetano, and rejected in Boland.

Should be a slam dunk right?? ��������

[curtisfong]

If only outcomes were determined by the rule of law in the 9th.

All the best luck, though. Perhaps there are a few honest judges around, somewhere.

[mcbair]

Reply brief filed with Ninth. Judge Muller erred in admitting she did not consider merits of case or harm to plaintiffs in our request for P.I. In doing so she failed to ensure the state met its burden to supply historic regulations dating to founding era. She also used interest balancing to show balance of equities were in favor of defendants.

[mcbair]

Reply to Ninth filed. Muller admits she did not consider our likelihood of success on merits. She admits she did not consider denial of Rights constitutes harm to plaintiff. She used public safety and interest balancing to allege balance of equities is in favor of defendant.

[rational_behavior]

OK, what does that mean? Does it leapfrog the case to the 9th?

[mcbair]

It appeals the denial of the P.I. to the ninth circuit because judge Muller in the eastern district abused process in her denial of our P.I. She failed to consider the elements which enable a plaintiff to prevail in a request for a preliminary injunction.

[mcbair]

Oral arguments in front of Ninth set for 6/30/23 at 0930 courtroom 1, Federal Courthouse in Pasadena. This is an interlocutory appeal of the denial of our P.I.
Judge Mueller admitted she failed to examine our likelihood to succeed on the merits of our case., ( the conduct we seek is verbatim from the Second Amendment and thus is presumed to be constitutional).

Judge Muller failed to examine the harm in denial of an enumerated Right.

Judge Mueller failed to include Ninth Circuit precedent that the government cannot suffer harm from being prevented from enforcing unconstitutional acts.

Judge Muller failed to consider the balance of equities always falls to the people when it comes to preserving enumerated rights. The balance of equities cannot fall to the government in denial of those rights. The government cannot use public safety as grounds to deny Second Amendment rights, which are pre-governmental and thus “Natural Rights”.

This is how the Winters Test is fully and comprehensively integrated into the Bruen test.

The state failed to put forward one single example of bans on open carry which date to the founding era. The judge and the state claim that interest balancing, although insufficient to win during what they refer to as the merits phase of the case are perfectly fine during the preliminary phase of a Second Amendment case and this is why she feels she was not required to examine the first two steps in the Winters test.

Weak logic from a weak judge and a weak States attorney. We will see whether
There is any Justice in what is arguably the worst run state in this nation.

[guntrust]

Originally Posted by mcbair

Oral arguments in front of Ninth set for 6/30/23 at 0930 courtroom 1, Federal Courthouse in Pasadena. This is an interlocutory appeal of the denial of our P.I.
Judge Mueller admitted she failed to examine our likelihood to succeed on the merits of our case., ( the conduct we seek is verbatim from the Second Amendment and thus is presumed to be constitutional).

Judge Muller failed to examine the harm in denial of an enumerated Right.

Judge Mueller failed to include Ninth Circuit precedent that the government cannot suffer harm from being prevented from enforcing unconstitutional acts.

Judge Muller failed to consider the balance of equities always falls to the people when it comes to preserving enumerated rights. The balance of equities cannot fall to the government in denial of those rights. The government cannot use public safety as grounds to deny Second Amendment rights, which are pre-governmental and thus ?Natural Rights?.

This is how the Winters Test is fully and comprehensively integrated into the Bruen test.

The state failed to put forward one single example of bans on open carry which date to the founding era. The judge and the state claim that interest balancing, although insufficient to win during what they refer to as the merits phase of the case are perfectly fine during the preliminary phase of a Second Amendment case and this is why she feels she was not required to examine the first two steps in the Winters test.

Weak logic from a weak judge and a weak States attorney. We will see whether
There is any Justice in what is arguably the worst run state in this nation.

If there is justice, you will win. State has no equity or hardship in your exercise of RKBA. Burden is on State to demonstrate consistency with national historical tradition.

[Chewy65]

Originally Posted by mcbair

Reply to Ninth filed. Muller admits she did not consider our likelihood of success on merits. She admits she did not consider denial of Rights constitutes harm to plaintiff. She used public safety and interest balancing to allege balance of equities is in favor of defendant.

Graucho would have brought the duck down.

[TruOil]

Is the brief on line some where? That would be an interesting read.