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

[kcbrown]

Originally Posted by mrrabbit

I don't have to take a position on what Heller says.

Good. Then you don't disagree with me on what I say about Heller, do you? Since to disagree with me on what I say about Heller, you do have to take a position on what Heller says.

CA9 has to take a position on what Heller says.

Indeed it does.

The already did with Peruta, cherry picking to avoid the request for some kind of remedy AND in doing so, agreeing with SCOTUS the prohibitions on concealed can be upheld . . .

. . . and SCOTUS denied Cert on appeal.


Now CA9 has to take a position again on what Heller says in regards to Nichols loaded open carry case.

If past performance is a promise of future returns (just being funny here) CA9 will probably play loose with the "narrow restrictions" theme in Heller and strike down the ban on Unloaded Open Carry - but leave in place the ban on Loaded Open Carry - betting that SCOTUS will deny Cert if Nichol's appeals.

Actually, I expect CA9 will uphold the ban under "intermediate scrutiny" and claim that while concealed carry does not fall under the protection of the 2nd Amendment, it is nevertheless a manner of "bear" and thus satisfies the requirement that "some manner" of carry be "available".

Perhaps Nichol's is reading my mind. Perhaps Nichol's is sneaking around Calguns and reading this thread. Perhaps his filing of FRAPS letters reminding CA9 of the racial animus behind the Loaded Open Carry ban is designed specifically to keep CA9 from grabbing Unloaded Open Carry and running with it to the exclusion of all else.


We'll find out...

=8-|

We will indeed, and I think it's going to be an interesting show, to say the least.

[TruOil]

Originally Posted by kcbrown

Actually, I expect CA9 will uphold the ban under "intermediate scrutiny" and claim that while concealed carry does not fall under the protection of the 2nd Amendment, it is nevertheless a manner of "bear" and thus satisfies the requirement that "some manner" of carry be "available".

I agree that the Ninth will likely uphold the open carry ban--I find it inconceivable that they would suddenly declare their is a right to openly carry loaded firearms in public, even with Mr. Nichols' narrow reading of the scope or breadth of areas in which that right might be exercised. However, having painted itself into a conceptual corner with Peruta by declaring that there is no right to carry a concealed weapon (and thus no right to a CCW permit), how can it logically contend that the exercise of the Second Amendment is adequately protected by carrying in a manner for which there is no right?

I know I know...this is kind of awkward but...If a CCW is not a right, then one is not exercising a right but a privilege when carrying a concealed weapon. So how can one exercising a right that is available only as a privilege? You can't--the Second Amendment has been effectively reduced to a privilege exerciseable only in the discretion of the government. So how will the Ninth avoid this conundrum?

As you said, through the exercise of intermediate scrutiny and a finding that the exercise of the right may be regulated (into an unstated nonexistence) "in the interest of public safety." So instead of saying that CCW is an adequate protection of the right, it will hold that the exercise is limited to unincorporated areas of the state, for which a right to open loaded carry exists--for the children. In short, it will massively expand all GFSZs into all incorporated areas of the state, but argue, unpersuasively, that this is really not a "ban" at all. If THAT doesn't get the attention of the Supreme Court, along with today's decision in Wrenn, nothing will.

[mshill]

The 9th will use the same reasoning that was used in the dissent of the Wren v DC appeal, namely that Heller said the defense of self, family and property is "most acute" in the home and conversely "not acute" or of less import outside of the home, therefore it does not impinge the "core" of the right. As such both concealed and open carry can be regulated (out of existence).

Intellectually dishonest at its core.

[press1280]

Originally Posted by mshill

The 9th will use the same reasoning that was used in the dissent of the Wren v DC appeal, namely that Heller said the defense of self, family and property is "most acute" in the home and conversely "not acute" or of less import outside of the home, therefore it does not impinge the "core" of the right. As such both concealed and open carry can be regulated (out of existence).

Intellectually dishonest at its core.

This will be difficult considering in Nichols' case it's a total ban on OC. They would have to hold OC is the "right" but that a total ban is permissible under intermediate scrutiny (BIG stretch), or, hold the 2A has no application in public (and split with CA7).
Another route they may try is the good old "Let's wait for SCOTUS to rule on public carry before we make any call on this."

[Mute]

The only reasoning the CA9 will give is "because we say so." That seems to be it's SOP on anything it wants to make into reality. Since when has the 9th ever shown itself to care about being judicially sound in its decisions.

[TruOil]

Originally Posted by press1280

This will be difficult considering in Nichols' case it's a total ban on OC. They would have to hold OC is the "right" but that a total ban is permissible under intermediate scrutiny (BIG stretch), or, hold the 2A has no application in public (and split with CA7).
Another route they may try is the good old "Let's wait for SCOTUS to rule on public carry before we make any call on this."

The thing is, it is not a total ban. along with numerous exceptions, one can carry a loaded firearm openly when dealing with an emergency between the time you call 911 and the time it takes for the police to arrive (oh joy!), and you can openly carry loaded firearms in the vast forests and parks in this state--millions of acres of land for you to exercise your right! That should be enough! (*cough*) But they can make the same argument that D.C. made in opposing the Wrenn case--in which, as you may have noted, California filed or joined an amicus brief--where it was argued that carry is permissibly banned in dense public areas in the overweening interest of public safety.

I don't think there is any way the court can duck the issue presented by waiting for SCOTUS to act.

[press1280]

Originally Posted by TruOil

The thing is, it is not a total ban. along with numerous exceptions, one can carry a loaded firearm openly when dealing with an emergency between the time you call 911 and the time it takes for the police to arrive (oh joy!), and you can openly carry loaded firearms in the vast forests and parks in this state--millions of acres of land for you to exercise your right! That should be enough! (*cough*)

The county is incorporated, so no OC permit available. I also recall in Heller that DC was trying to make a big deal about an emergency clause which protected you if you were in the middle of an assault.
Big stretches all the way.
IMO he'll win, however CA9 will hint strongly that OC can require a permit which can also be may-issue(see Peruta concurrence which said even if CCW were protected under the 2A that they still would find may-issue permissible).

[TruOil]

Originally Posted by press1280

The county is incorporated, so no OC permit available. I also recall in Heller that DC was trying to make a big deal about an emergency clause which protected you if you were in the middle of an assault.
Big stretches all the way.
IMO he'll win, however CA9 will hint strongly that OC can require a permit which can also be may-issue(see Peruta concurrence which said even if CCW were protected under the 2A that they still would find may-issue permissible).

Counties are not incorporated, only cities and towns. And under both prior and current law, no permits were/are required for carry out in the unincorporated forests and deserts. And yes, there is an emergency clause in California law, but I am too busy to look up the Penal Code section. As I recall, it allows carry in public to defend against an immediate threat of harm between the time the police are called and the police arrive. The law presumes, I suppose, that one has exited one's premises with a firearm while responding to an imminent threat of harm, e.g., your significant other/child is being violently assaulted in the street.

the issue I ahve with Nichols' approach is that it seeks to allow open carry in any place that is not a sensitive place--but the problem with that is the Gun free School Zone Act, which prohibits that open carry of pistols within 1000' of any school (there is some inconsistent language that suggests that open carry of a rifle is still not banned under the GFSZ Act, which is kind of weird.) the fact is--and I've seen maps of San Francisco and Fresno--that once you map out all the school exclusion zones, in most places you can't even cross town with an exposed handgun without violating the law. I personally, absent a CCW, could not leave my house without violating that law even if Nichols wins.

[cvigue]

Originally Posted by lowimpactuser

Paladin, you really need to vary things up.

If you're going to continue to post "sandwich and a nap"

[press1280]

Originally Posted by TruOil

Counties are not incorporated, only cities and towns. And under both prior and current law, no permits were/are required for carry out in the unincorporated forests and deserts. And yes, there is an emergency clause in California law, but I am too busy to look up the Penal Code section. As I recall, it allows carry in public to defend against an immediate threat of harm between the time the police are called and the police arrive. The law presumes, I suppose, that one has exited one's premises with a firearm while responding to an imminent threat of harm, e.g., your significant other/child is being violently assaulted in the street.

the issue I ahve with Nichols' approach is that it seeks to allow open carry in any place that is not a sensitive place--but the problem with that is the Gun free School Zone Act, which prohibits that open carry of pistols within 1000' of any school (there is some inconsistent language that suggests that open carry of a rifle is still not banned under the GFSZ Act, which is kind of weird.) the fact is--and I've seen maps of San Francisco and Fresno--that once you map out all the school exclusion zones, in most places you can't even cross town with an exposed handgun without violating the law. I personally, absent a CCW, could not leave my house without violating that law even if Nichols wins.

Thanks, I meant to say cities. As far as the GFSZ I'll have to look at the briefs again, I thought there was some part of the CCW law that was being challenged. OC would be pretty useless in much of SF and LA (unless they're going to extend sanctuary policies to open carry-NOT).

[TruOil]

Originally Posted by press1280

Thanks, I meant to say cities. As far as the GFSZ I'll have to look at the briefs again, I thought there was some part of the CCW law that was being challenged. OC would be pretty useless in much of SF and LA (unless they're going to extend sanctuary policies to open carry-NOT).

Mr. Nichols is NOT challenging the GFSZ Act. Said so himself on another forum, so I assume that to be accurate.

[press1280]

Originally Posted by TruOil

Mr. Nichols is NOT challenging the GFSZ Act. Said so himself on another forum, so I assume that to be accurate.

Wait a sec, he can't be challenging the GFSZ act, that's a Federal law. Does CA have a 1000ft-from-schools law that can only be exempted with a CCW?

[nick]

Yes, CA has its own GFSZ.

[kcbrown]

Originally Posted by TruOil

I agree that the Ninth will likely uphold the open carry ban--I find it inconceivable that they would suddenly declare their is a right to openly carry loaded firearms in public, even with Mr. Nichols' narrow reading of the scope or breadth of areas in which that right might be exercised. However, having painted itself into a conceptual corner with Peruta by declaring that there is no right to carry a concealed weapon (and thus no right to a CCW permit), how can it logically contend that the exercise of the Second Amendment is adequately protected by carrying in a manner for which there is no right?

It can't. But that doesn't mean it won't.

It can, and thus (absent some other alternative, which could easily be the one you point to below) will, claim that even though concealed carry itself is not a right, its "availability" is sufficient to "satisfy" the right. It will in essence claim that a right is not infringed as long as there is some way for some subset of the people (no matter how small) to exercise it, even if the means available to them is not, itself, a right.

I know I know...this is kind of awkward but...If a CCW is not a right, then one is not exercising a right but a privilege when carrying a concealed weapon.

The 9th Circuit would (at least absent some other "better" alternative) argue otherwise. It will claim that one needn't have access to something that is a right in order to exercise a right. What it will argue is, of course, going to be inherently contradictory. But that is how this court rolls.

So how can one exercising a right that is available only as a privilege? You can't--the Second Amendment has been effectively reduced to a privilege exerciseable only in the discretion of the government. So how will the Ninth avoid this conundrum?

In reality, it won't. It will claim to, but it won't.

As you said, through the exercise of intermediate scrutiny and a finding that the exercise of the right may be regulated (into an unstated nonexistence) "in the interest of public safety." So instead of saying that CCW is an adequate protection of the right, it will hold that the exercise is limited to unincorporated areas of the state, for which a right to open loaded carry exists--for the children. In short, it will massively expand all GFSZs into all incorporated areas of the state, but argue, unpersuasively, that this is really not a "ban" at all. If THAT doesn't get the attention of the Supreme Court, along with today's decision in Wrenn, nothing will.

I won't be surprised if the 9th Circuit argues that way, either.

There are multiple ways the 9th Circuit can argue the issue, but every single one of them will eviscerate the right while simultaneously claiming that the right remains intact.

[Diamondi88]

CA9 will just repeat "Open carry is not the protected right in the 2nd amendment and therefore can be regulated into none existence" It will not review the case in light of Peruta. They will ignore Peruta ruling altogether because it will not be revisited by the court. This case will not cause a review of the Entirety of the scheme to allow some form of carry be available to the common person. This case has the same handicap as Peruta did, and CA9 will abuse logic to come to the same conclusion.

just my 2c.

[Diamondi88]

mrrabbit, I see where you are going with your argument and respect your opinion on it. And you maybe completely right.

However, I believe the CA9 will narrow the question so tightly as to be able to say that LOC is not the right. They will not order UOC or CCW as relief. They will say "You will have to seek legal remedy to address that issue apart from this case". Just like they refused to look at the open carry ban in Peruta.


It is the whole scheme that needs to be challenged, not the bits and pieces.

[press1280]

UOC was never asked for by Nichols. CA9 will either give him some form of LOC or nothing at all. I don't see the court granting a remedy that simply isn't being even suggested by either Nichols or the state.

The easiest way out for the court is to strike the LOC ban but map out a blueprint for the state to simply make LOC permits available statewide, but that those can follow the may-issue scheme just like CCW. Just look to the concurrence in the en banc opinion of Peruta where they stated that even if CCW were protected under the 2A, that the may-issue scheme was still constitutional. This tells me those same judges will do the same under a may-issue OC scheme.

[Metal God]

Sorry to interrupt your discussion but I saw there was new content here and want to see where this case was . I went back 3 pages and found no actual updates .

Where does this case stand now ? Is it at the 9th now ? Has it been heard by the 9th ?

Thanks Metal

[TruOil]

Originally Posted by Metal God

Sorry to interrupt your discussion but I saw there was new content here and want to see where this case was . I went back 3 pages and found no actual updates .

Where does this case stand now ? Is it at the 9th now ? Has it been heard by the 9th ?

Thanks Metal

There is a post in there somewhere saying that the case is awaiting assignment of a hearing date in the Ninth. Briefing was complete months ago, with a recent update for the Wrenn v. D.C. decision. Mr. Nichols thinks it will be scheduled this fall, but I am a little fuzzy as to what month. October?

[TruOil]

Hmm, lot's of good discussion and ideas going on here. I am persuaded that if any relief is granted, it will be worse than a loss. As I've said before, I cannot see the court allowing LOC, even with the existing restrictions as to sensitive places--i.e., all public buildings and all GFSZs. On the other hand, I cannot see it concluding that there is no right to carry outside the home--wiping out "bear", which would assure a grant of review. So instead it will simply strike down the UOC ban, leaving us with a right in name but not in function, since the exercise of that right is still subject to the same sensitive places law and the GFSZ Act that Nichols did not challenge. Moreover, this approach, i.e. unlicensed UOC, avoids the issue of any licensing scheme on a right to bear arms in which a governmental official decides who gets to bear and who doesn't is an infringement as to all who are denied, a direct affront to the "shall not be infringed" language in the amendment...To me, UOC is worse than a loss, but to the court, a delightful poke in the eye to any who wish to exercise their rights.

[surfgeorge]

Originally Posted by TruOil

There is a post in there somewhere saying that the case is awaiting assignment of a hearing date in the Ninth. Briefing was complete months ago, with a recent update for the Wrenn v. D.C. decision. Mr. Nichols thinks it will be scheduled this fall, but I am a little fuzzy as to what month. October?

The Ninth Circuit Oral Arugments Calendar is here:

http://www.ca9.uscourts.gov/calendar/

Typically they list the cases 10 weeks before the hearing date. (The past week's updates were for cases scheduled for mid-October.) There is some reason to believe (too long to go in to) that Nichols will be scheduled for the week of November 6 in Pasadena, which means that if orals are held, that they would be listed in the calendar in the next TWO WEEKS. If it is not listed for that date, then... never mind. There is still the unanswered request to have the case heard initially by an en banc panel...

Usually that calendar is updated on Monday or Tuesday, but last week it was updated with the next week's schedule on Sunday.

[Metal God]

Thank you for the update

[press1280]

Originally Posted by mrrabbit

Um, yes he has....

http://blog.californiarighttocarry.o...1116531126.pdf

=8-|

I think he's asking for all of the above, not just UOC in isolation and I don't think the court can necessarily "split the baby" and give him just UOC.
There's no RTKBA precedent that I know of where firearms are allowed to be carried ONLY in a unloaded manner.

[kcbrown]

Originally Posted by mrrabbit

They can strike down the ban on UNLOADED open carry - claiming that satisfies Heller....and ignore Nichol's request for action on Loaded Open Carry.

Technically speaking, they can only do that if the text of the law explicitly calls out unloaded carry as a separate thing. The courts cannot add language to the law. They can change the meaning of what's there, or can strike language, but that's it.

It does appear that section 26350 explicitly calls out unloaded open carry as prohibited, so it is possible for the court to strike that. Nichols does explicitly call for that in his prayer for relief, so it is a possibility on the table.


But that said, why would the 9th Circuit give us anything at all, even if it's just unloaded open carry, when it doesn't have to? It has plenty of options for completely eviscerating the right while claiming to not be doing so. Since it has such options, it's essentially guaranteed it'll use one of them.

[Metal God]

Can they choose not to hear it ?

[kcbrown]

Originally Posted by mrrabbit

Because if they don't - effectively a total ban - it increases the likelihood of SCOTUS taking up an appeal by Nichols.

With the primary argument being one about open carry and all of the history that comes with it.

That's different enough that it might catch SCOTUS' attention, but it's important to realize that SCOTUS was perfectly happy to let an essentially identical ban stand in Woollard.

Methinks you ascribe far too much fear of SCOTUS on the part of the 9th Circuit here. I guarantee they're not afraid of SCOTUS at all, since it has refused Every Single Firearms 2A Case since McDonald. And the political situation at SCOTUS has not changed since then either, nor will it until the composition changes.

A change in composition is the only thing the 9th reasonably has to fear. But if that changes, then ANY reasonable carry case will result in securing "bear". So the 9th has absolutely nothing to lose by eviscerating the right.

They're not going to leave that to chance...they cherry picked and ran with the "cherry" in Peruta and got away with it - they'll do it again in Nichols - and in my opinion - get away with it again.

Oh, I agree. They'll get away with it, and do so by denying the right in exactly the same way so many other courts have. We will get absolutely nothing from the 9th Circuit




Sent from my iPhone using Tapatalk

[kcbrown]

Originally Posted by mrrabbit

Those were primarily CCW cases, "not so clean cases" (baggage) and/or regulatory cases . . . not cases that were simply about bans on any kind of open carry.



Nichols = straight arrow to LOC ban.

Nichols = straight arrow to UOC ban.

This is true except for Woollard, which was not about any kind of mode at all, since the same law covered all forms of carry and a permit authorized all forms of carry. If "may issue" qualifies as an effective ban, then that case is proof that the Court has no problem with letting an effective ban stand.

In any case, the main point is that the 9th Circuit has no reason to fear anything from SCOTUS as regards Nichols. Their decision will eviscerate the right because they have no reason to fear reversal.







Sent from my iPhone using Tapatalk

[press1280]

Originally Posted by kcbrown

This is true except for Woollard, which was not about any kind of mode at all, since the same law covered all forms of carry and a permit authorized all forms of carry. If "may issue" qualifies as an effective ban, then that case is proof that the Court has no problem with letting an effective ban stand.

In any case, the main point is that the 9th Circuit has no reason to fear anything from SCOTUS as regards Nichols. Their decision will eviscerate the right because they have no reason to fear reversal.







Sent from my iPhone using Tapatalk

With Peruta being decided the way it was, it does set the stage of a total ban, different than Woollard. The OC permit is unavailable to him based on where he lives and the 9th cannot turn around and say that CCW is available since they already said it's not part of the 2A at all.

So it would be a total ban, something Scotus would likely answer, although to what degree I don't know.

[kcbrown]

Originally Posted by press1280

With Peruta being decided the way it was, it does set the stage of a total ban, different than Woollard. The OC permit is unavailable to him based on where he lives and the 9th cannot turn around and say that CCW is available since they already said it's not part of the 2A at all.

You're presuming honesty on the part of a court that has repeatedly proven its dishonesty.

The 9th Circuit can just as easily claim that even though CCW itself isn't protected by the 2nd Amendment, its "availability" is sufficient to "satisfy" the right to bear arms and, therefore, the ban on open carry does not foreclose the right to bear arms. It can also claim that open carry is available in some locations and, thus, that the prohibition is merely a "time, place, or manner" regulation.

So it would be a total ban, something Scotus would likely answer, although to what degree I don't know.

With a construction such as the above, the dispute will be, in part, about whether or not there's a total ban in place.

Admittedly, it does have differences from Woollard. But even so, we're not talking about a Supreme Court that has refused to hear carry cases, we're talking about a Supreme Court that has refused to hear all firearms-related 2nd Amendment cases. This most certainly qualifies in that latter category, ban or no.

But finally, if the question is about whether or not a ban on that which is protected by the 2nd Amendment is allowable when something that may not be protected is available, then Norman presumably qualifies. As such, whether or not the Court grants cert to Norman should serve as an indicator as to whether or not they'd take Nichols with their present composition.

[TruOil]

Originally Posted by Metal God

Can they choose not to hear it ?

Do you mean can they refuse to entertain oral argument? I actually don't know; federal trial courts certainly have that discretion, and many exercise it. Moreover, parties can waive oral argument. However, I think the court may be required to hold orals if requested, but they have untrammeled discretion as to when that will be.

If you mean "hear" in the legal sense of "deciding" a matter (i.e., the court "hears" your case), no, review is as of right, while a grant of review (certiorari) in the Supreme Court is discretionary.

[gunuser17]

Federal Rules of Appellate Procedure › TITLE VII. GENERAL PROVISIONS › Rule 34. Oral Argument
Rule 34. Oral Argument
(a) In General.

(1) Party's Statement. Any party may file, or a court may require by local rule, a statement explaining why oral argument should, or need not, be permitted.

(2) Standards. Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons:

(A) the appeal is frivolous;

(B) the dispositive issue or issues have been authoritatively decided; or

(C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.
...

[Paladin]

This thread has been sleeping for almost 2 months.

[TruOil]

Originally Posted by Paladin

This thread has been sleeping for almost 2 months.

Really. Didn't old Charlie or one of his minions post months ago that this was to go to orals this month or next?

[sfpcservice]

The court is in NO hurry to decide this because there is only one way they can.

[TruOil]

Originally Posted by sfpcservice

The court is in NO hurry to decide this because there is only one way they can.

Maybe. The Ninth is the busiest circuit, and the time that has gone by is pretty typical for most cases.

[wolfwood]

oral argument is in February

[TruOil]

Originally Posted by wolfwood

oral argument is in February

Mr. Nichols' opening brief was well-written, his reply horrible. I shudder to imagine what oral argument will be like.

Who is taking bets on the outcome? I'd bet that the Ninth:
1. will affirm that there is a right to bear outside the home (which the State admitted in Peruta),
2. but that it may be subject to "reasonable regulation" in the public interest (which Nichols concedes by agreeing that the GFSZA is a valid exercise of state power), and that
3. "intermediate scrutiny" (which in the Ninth is indistinguishable from rational basis review) will be applied (of course because the "core" of the right is inside the home, not outside)
4. and upon application of this standard of review, the court will uphold the open carry ban, which currently applies only in urban areas because the interest in public safety and the power of the State to regulate the carrying outweigh the personal interest in bearing arms in cities and towns.

[pistol3]

Originally Posted by TruOil

Mr. Nichols' opening brief was well-written, his reply horrible. I shudder to imagine what oral argument will be like.

Who is taking bets on the outcome? I'd bet that the Ninth:
1. will affirm that there is a right to bear outside the home (which the State admitted in Peruta),
2. but that it may be subject to "reasonable regulation" in the public interest (which Nichols concedes by agreeing that the GFSZA is a valid exercise of state power), and that
3. "intermediate scrutiny" (which in the Ninth is indistinguishable from rational basis review) will be applied (of course because the "core" of the right is inside the home, not outside)
4. and upon application of this standard of review, the court will uphold the open carry ban, which currently applies only in urban areas because the interest in public safety and the power of the State to regulate the carrying outweigh the personal interest in bearing arms in cities and towns.

If the 3 judge panel doesn't rule that way, you can count on the en banc panel to find that there is no right to bear arms in urban areas.

[mshill]

Originally Posted by pistol3

If the 3 judge panel doesn't rule that way, you can count on the en banc panel to find that there is no right to bear arms in urban areas.

Oh so true, however, they won't be able to say it like that as it would be discriminatory.

[Paladin]

Originally Posted by wolfwood

oral argument is in February

Where do you get that from?

I just went to his webpage re the current status of his case and right at top it says, "On October 10, 2017, I received notice from the court that my case is being considered for oral argument in Pasadena in February, March or April of 2018."
http://blog.californiarighttocarry.org/?page_id=6922