Nichols Vs. Newsom (was Brown) update...

[press1280]

Originally Posted by TruOil

Had Bonta so stipulated, the case would be over. Since it is not over, I think we can safely assume, in the absence of anything in writing filed with the Court, that this is not the case. What really has happened is this:

"Both sides agree that Plaintiff Nichols has a right protected by the Second Amendment to carry a loaded firearm in public (the Defendants conceded that point on appeal). But the Defendants position is that there is only a
right to carry a handgun concealed. Their position is that Plaintiff Nichols does not have a right to step even one inch outside the door to his home while openly carrying a loaded firearm for the purpose of self-defense and for other lawful purposes."

What is interesting is that Bonta essentially concedes that the Ninth Circuit got it wrong in Peruta in declaring that there is no right to a CCW.

This pretty much follows the pattern of IL, DC, and apparently now Hawaii. When faced with choosing one mode of carry over another, they'll choose CCW every time.

[TruOil]

Originally Posted by press1280

This pretty much follows the pattern of IL, DC, and apparently now Hawaii. When faced with choosing one mode of carry over another, they'll choose CCW every time.

The question that maybe Nichols will answer is whether it is constitutionally permissible for a state t choose one over the other for urban carry, and if they do, a separate question now being addressed s how extensive the regulation of concealed carry may be. After Bruen, a state may have a difficult time justifying open carry bans, when there has been no history, text, or tradition of such restrictions other than a few local restrictions in the Wild West and the state wide ban in Texas enacted during Reconstruction.

[Drivedabizness]

This is a Constitutional issue. Why are you even entertaining the notion that, truly sensitive places aside, rights are one thing in an urban setting and another in a rural one? I don't get it.

It was wrong on the law when CA legislated it, it was wrong when Obama / Holder suggested it, it's wrong - period.

[abinsinia]

The SCOTUS analysis doesn't include anything related to urban or rural carry, unless it's in the history, AFAIK there's no history about that.

[TruOil]

Originally Posted by abinsinia

The SCOTUS analysis doesn't include anything related to urban or rural carry, unless it's in the history, AFAIK there's no history about that.

Well, the fact is that open unlicensed carry is lawful in California in unincorporated areas (with one exception) which includes all state and national forests, and open carry is legal in unincorporated areas with the permission of the owner. So whether or not the Supreme Court made the distinction is of no relevance because California has.

[abinsinia]

Originally Posted by TruOil

Well, the fact is that open unlicensed carry is lawful in California in unincorporated areas (with one exception) which includes all state and national forests, and open carry is legal in unincorporated areas with the permission of the owner. So whether or not the Supreme Court made the distinction is of no relevance because California has.

So you believe the plain text or history allows a split up of this type?

[TruOil]

Originally Posted by abinsinia

So you believe the plain text or history allows a split up of this type?

That is not what I said. There already is a right to carry open or concealed in unincorporated areas, thus the issue is not presented for determination. You do not fight a battle you have already won. It really is that simple. Again, the only outstanding issue is whether the State can mandate open or concealed carry in incorporated areas, with the subsidiary issue of how much regulation is permissible.

[BAJ475]

Originally Posted by TruOil

That is not what I said. There already is a right to carry open or concealed in unincorporated areas, thus the issue is not presented for determination. You do not fight a battle you have already won. It really is that simple. Again, the only outstanding issue is whether the State can mandate open or concealed carry in incorporated areas, with the subsidiary issue of how much regulation is permissible.

With all respect and not arguing that the issue is not presented for determination, the battle is not won until nonresidents can carry openly or concealed as they choose.

[abinsinia]

Originally Posted by TruOil

That is not what I said. There already is a right to carry open or concealed in unincorporated areas, thus the issue is not presented for determination. You do not fight a battle you have already won. It really is that simple. Again, the only outstanding issue is whether the State can mandate open or concealed carry in incorporated areas, with the subsidiary issue of how much regulation is permissible.

It sounds like your position is similar to the states position on hand guns or rifles. The state claims that only a categorical ban of arms triggers the second amendment. So they claim they can ban %90 of handguns with the roster and it's fine, or %80 of rifles and it's fine.

[command_liner]

Originally Posted by abinsinia

It sounds like your position is similar to the states position on hand guns or rifles. The state claims that only a categorical ban of arms triggers the second amendment. So they claim they can ban %90 of handguns with the roster and it's fine, or %80 of rifles and it's fine.

Imagine applying the state's logic to other parts of the Bill of Rights or other amendments.
1) Women can vote in rural unincorporated areas only
2) Black men not subject to slavery in 10% of the state
3) 15% of the newspapers are not-unsafe to read
4) Prayer can only happen in "sensitive locations" determined by the government

... and so on.

[TruOil]

Originally Posted by abinsinia

It sounds like your position is similar to the states position on hand guns or rifles. The state claims that only a categorical ban of arms triggers the second amendment. So they claim they can ban %90 of handguns with the roster and it's fine, or %80 of rifles and it's fine.

I thought what I wrote is simple and clear. It does not state a position on anything. It merely identifies that which is undecided by the court.

That which is undecided is what can be mandated by the State for carry in urban areas. Currently it is CCW only, and subject to revision based on whatever Portantino proposes. Is that a constitutional provision using a modification of the "time place and manner" allowable restrictions on the exercise of the First Amendment? The court will decide. Nichols is pushing for unrestricted open carry, which as others have recognized, is a politically disfavored option. Is that option constitutionally required under Bruen (which is of course only a CCW case, but appears to set the rules as to THT for evaluation of laws, and under which open carry restrictions are questionable. I am not taking a position as to how this will all pan out, other than commenting that concealed carry causes a lot less distress among the Karens and soccer moms, and massively reduces the "man with gun" calls to 911. (I am sure many of you remember what happened in 2012 when the open carry movement hit the streets. It wasn't pretty.)

[abinsinia]

Originally Posted by TruOil

I thought what I wrote is simple and clear. It does not state a position on anything. It merely identifies that which is undecided by the court.

That which is undecided is what can be mandated by the State for carry in urban areas. Currently it is CCW only, and subject to revision based on whatever Portantino proposes. Is that a constitutional provision using a modification of the "time place and manner" allowable restrictions on the exercise of the First Amendment? The court will decide. Nichols is pushing for unrestricted open carry, which as others have recognized, is a politically disfavored option. Is that option constitutionally required under Bruen (which is of course only a CCW case, but appears to set the rules as to THT for evaluation of laws, and under which open carry restrictions are questionable. I am not taking a position as to how this will all pan out, other than commenting that concealed carry causes a lot less distress among the Karens and soccer moms, and massively reduces the "man with gun" calls to 911. (I am sure many of you remember what happened in 2012 when the open carry movement hit the streets. It wasn't pretty.)

It's not confusing, but it appeared to be your opinion on how this will play out. It seems now your suggesting your interpreting the current situation.

I think you fairly establish the current situation.

[Paladin]

[abinsinia]

The Judge appears to assert that she has jurisdiction,

https://storage.courtlistener.com/re...8404.193.0.pdf

A recent docket entry.

[Paladin]

Originally Posted by abinsinia

The Judge appears to assert that she has jurisdiction,

https://storage.courtlistener.com/re...8404.193.0.pdf

A recent docket entry.

No, she is not a judge over her own case. The judge, Judge Sykes, provides the facts (Nichols is a pro se plaintiff (i.e., representing himself) in a 42 USC §1983 action) and the applicable law (“General Order No. 05-07 of this District“) that management of his case properly belongs with the full-time Magistrate Judges, including the magistrate judge in his case, Judge Scott.

Proceedings: (IN CHAMBERS) ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE’S ORDERS [Dkt. 192].

The Court is in receipt of Plaintiff’s objections to the Magistrate Judge Karen Scott’s Order Requiring Parties to File Status Report [Dkt. 185], Order Regarding Further Proceedings [Dkt. 190], and Case Management and Scheduling Order [Dkt. 191]. [Dkt. 192].

Plaintiff objects to these Orders entered by the Magistrate Judge on the grounds that she lacks jurisdiction in this matter. He is mistaken. Per General Order No. 05-07 of this District, suits filed by pro se plaintiffs under 42 USC §1983 “shall be referred to the full-time Magistrate Judges.” Here, Plaintiff is not represented by counsel and has brought Section 1983 claims. Therefore, this proceeding is properly before Judge Scott.

The Court further reminds Plaintiff that the Orders to which he objects pertain only to case management and scheduling, and that Judge Scott has not yet reached the merits of his claims. When an order ruling on the merits is issued, Plaintiff will have the opportunity to seek review by this Court. However, for the reasons set forth above, his current objections are OVERRULED.

IT IS SO ORDERED.

[Paladin]

Anyone know what’s next and when?

If anyone has a link to this case’s docket or a webpage monitoring its status and actions, please post it.

[abinsinia]

Originally Posted by Paladin

Anyone know what’s next and when?

If anyone has a link to this case’s docket or a webpage monitoring its status and actions, please post it.

https://www.courtlistener.com/docket...nd-g-brown-jr/

Looks like next date is March 20, 2023 from docket entry 191

[Drivedabizness]

IANAL, and I sometimes question the quality of his writing - but a lot of what he says makes sense to me.

[abinsinia]

STATUS REPORT Plaintiff's Response to Discovery Order ECF 191, page 5, part 11 filed by Plaintiff Charles Nichols. (Nichols, Charles) (Entered: 03/20/2023)

https://storage.courtlistener.com/re...8404.194.0.pdf

very short.

[WithinReason]

Now, that is a succinct response!

[abinsinia]

STATUS REPORT Attorney General's Discovery Status Report filed by Defendant Xavier Becerra. (Haddad, Lara) (Entered: 03/20/2023)

https://storage.courtlistener.com/re...8404.195.0.pdf

[Elgatodeacero]

Looks like the trial court is going to drag Mr. Nichols case out for at least another year.

[Chewy65]

I heard of Nichols and didn't understand why everyone was so upset for him claiming a tight to open carry, but after reading some of his writing I see the problem. The part where he told the 9th that it could grant his claim regarding open carry and put closed carry back in its cage!

Expletives are omitted.

A good example of how misleading I found his Supplemental Brief to the 9th is this.

"[C]itizens ha[ve] 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.” Heller at 613

[Edited this part after seeing the following post by guntrust.] Nichols writing makes itsound like Heller said the citizens have the right to carry openly. It said no such thing. By quoting Heller out of context Nichols made it seem that the above was the holding of Heller, when Heller was plaingly quoting a Loisiana state decision in order to demonstrate that the right to bear was not limited to militia.

[guntrust]

Originally Posted by Chewy65

I heard of Nichols and didn't understand why everyone was so upset for him claiming a tight to open carry, but after reading some of his writing I see the problem. The part where he told the 9th that it could grant his claim regarding open carry and put closed carry back in its cage!

Expletives are omitted.

A good example of how misleading I found his Supplemental Brief to the 9th is this.

"[C]itizens ha[ve] 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.? Heller at 613

Nichols writing represented the above as thought Heller made that finding, when Heller merely quoted an 1850 Loisiana decison to illustrate that historically the right to carry was not limited to militia.

Nichols may be a little rough around the edges, but in fairness to him, my understanding (based on what I've heard, though I haven't read briefs) is that most of the star 2A lawyers including Michel argued over the years in several cases that OC could be banned if CC were allowed. Bruen trounced that view, including dicta (Charles would insist it was holding, not dicta) strongly indicating OC is the fundamental right, more protected than CC. CC was at issue in the case, but it's clear SCOTUS sees a difference between CC and OC, and we will see that play out in future cases dealing with sensitive areas.