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Status of California Open Carry Lawsuit - Charles Nichols v. Edmund Brown, Jr., et al
- Thread starter California Right To Carry
- Start date
cocked&locked
Member
In NY we refer to it as "He be a wannabe, writing a check his ass can't cash."
utbagpiper
Banned
Yup. The 9th Circuit is very hostile to RKBA. It seems that you are equally hostile on bearing arms discretely. Congrats. You agree with a bunch of gun-haters who not only ignore the plain language of the text, but utterly ignore the interactions of other amendments and the rights they protect. Even if the 2nd didn't protect a right to carry arms discretely, if it protects any right to carry arms at all, then the privacy rights protected by the 4th and 5th amendments (and conferred by the "penumbra" that protects a woman's decision to have an elective abortion of convenience) would certainly protect the individual, private, choice to carry discretely, rather than openly.
What is going to be interesting is to see how the gun haters on the 9th circuit go about ruling that the 2nd amendment also "doesn't preserve or protect a right of a member of the general public to carry visible firearms in public."
Anyone who thinks the Peruta decision is anything but wholly hostile to RKBA and even Heller/McDonald, has some reading comprehension deficiencies. I'm not a lawyer. I've never filed a single lawsuit in my life. And I make no grandiose claims of expertise. But I've read a few decisions. Peruta is dripping in contempt for Heller. Most all the "precedence" (so-called) or history used to justify their decision against any right to carry a concealed firearm in public will serve equally well to find that there is also no right to carry a visible firearm in public....or to find that if such a right exists, it is subject to so many "reasonable restrictions" as to render it effectively worthless for any sort of typical self-defense.
Charles
cocked&locked
Member
Novices like Charlie Nichols believe that you can bring one case and magically, some how, all our carry rights will be recognized. If only life were that simple. The battle for recognition of any generalized right to carry in California is going to be a long, drawn out process over the course of many years. It will eventually be gained in very small incremental steps thru many cases, many of which I believe have not been commenced yet. California is not going to just fold up its tent and stop their fight. And the Supreme Court is not going to come out in one fell swoop and say that every law abiding adult has a generalized right to carry everywhere in this country. Charlie believes his case is the be all and end all of carry rights in California.
I believe that the tipping point in this fight will occur when the citizens of these draconian states refuse to accept that citizens in other states can exercise certain fundamental and important rights that their politicians prevent them from exercising. It is only when they realize that they are second-class citizens in their own country and state that they will demand change.
So therefore, I believe that the single most important thing that can happen along those lines is the passage of national reciprocity. When citizens of California, New York, New Jersey, etc., begin asking why a visitor from Alaska or Florida can protect themselves in California and everywhere else yet they are precluded, then, and only then, will things dramatically change.
Just my humble opinion!
I believe that the tipping point in this fight will occur when the citizens of these draconian states refuse to accept that citizens in other states can exercise certain fundamental and important rights that their politicians prevent them from exercising. It is only when they realize that they are second-class citizens in their own country and state that they will demand change.
So therefore, I believe that the single most important thing that can happen along those lines is the passage of national reciprocity. When citizens of California, New York, New Jersey, etc., begin asking why a visitor from Alaska or Florida can protect themselves in California and everywhere else yet they are precluded, then, and only then, will things dramatically change.
Just my humble opinion!
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OC4me
Regular Member
Having read more than a few legal briefs over the years, in my humble opinion, Nichols knows what he is doing on multiple levels. I don't necessarily care for his ego though and am not excusing his counterproductive sniping at other organizations and individuals, however.
His original complaint was a work of art, intentionally verbose and rambling, fooled me initially into thinking he had little legal background. The best way to fool the enemy is to fool your own troops and in this case such a strategy may have paid some dividends in that the government lawyers made mistakes and cut-corners early on thinking they were dealing with an easy win.
His original complaint was a work of art, intentionally verbose and rambling, fooled me initially into thinking he had little legal background. The best way to fool the enemy is to fool your own troops and in this case such a strategy may have paid some dividends in that the government lawyers made mistakes and cut-corners early on thinking they were dealing with an easy win.
OC4me
Regular Member
Agreed...National Reciprocity would break the back of the anti-gun movement!
California Right To Carry
Regular Member
Funny you should mention that about my original Complaint. That's pretty much what I said on Facebook when I filed it. I may have made a Matlock reference on Facebook at the time but also pointed out that if one reads my initial Complaint and briefs then one will notice that I managed to "stumble" over every procedural point I needed to make to have standing to challenge the Loaded Open Carry ban (the challenge to the Unloaded Open Carry bans came later, in my amended complaints).
The resident CalGuns.nut critic of mine whom I recently put on my ignore list, you know, the self proclaimed astronaut/lawyer, will no doubt respond by throwing his usual ---- at this post of mine but consider the source. He's one of those guys who claims that where the Heller decision said that Open Carry is the right guaranteed by the Constitution and that concealed carry is not a right and can therefore be banned, what the Heller decision really said was that Open Carry can be banned in favor of concealed carry.
<insert sound of world's tiniest violin playing here>
California Right To Carry
Regular Member
Don't listen to self-proclaimed astronaut/lawyers who don't even know how to read the Heller decision. Congress does not have the authority under the Commerce Clause to compel states to recognize a license to carry a firearm from another state and any law which threatened to withhold funding if states did not comply with the reciprocity law would be struck down by the Federal courts in a New York minute.
If the Federal courts turn out to be a dead end for the Second Amendment then the only peaceful recourse is through the state legislatures of states like California, New York and New Jersey.
davidmcbeth
Banned
Well, that's not entirely accurate ... one could still OC w/o concern ... its the .gov decision to make it non-peaceful.
OC4me
Regular Member
As much as I would love national carry reciprocity to become law, I would be equally satisfied if the authority of Congress to regulate under the Commerce Clause were properly constrained by the Federal courts. Such a legal precedent would be welcome.
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utbagpiper
Banned
The two are not mutually exclusive. Congress' proper power to protect RKBA from State level infringements comes from the 2nd (Heller) and 14th (McDonald) amendments, not from the commerce clause. Congress can properly, and should, move to provide national protections to the individual RKBA against State and local infringements under their 14th amendment power to pass all laws necessary to protect all due process and civil rights of individuals in this nation.
State and local authorities who abuse their government power to infringe the individual "RKBA" should be brought up on a federal civil rights violation charges. Federal funding should be withheld from any jurisdiction that engages in violations of "RKBA". And federal laws should be passed to explicitly protect the individual "RKBA" to some minimum level regardless of the State in which one finds himself.
I put "RKBA" in quotes here because I fully expect that what congress would ever protect via nationwide legislation would be far less than what we here consider to be the full RKBA guaranteed by the constitution. But we ought to start somewhere.
Personally, I'd like to see a federal mandate that all carry permits requiring a background check be recognized nationwide in all locations generally open to the public and that don't provide real security. If States wanted to provide greater respect for RKBA (such as not requiring a permit to carry) that would be great. Some States would have some "sensitive" locations like schools off limits while others would allow carry in them. But nationwide carry, and nationwide purchase of a handgun should be bare minimum the feds protect.
Simultaneously, agree that federal regulation under the commerce clause desperately needs to be restrained.
Charles
OC4me
Regular Member
Except, for the moment, the 'settled' scope of the RKBA does not yet include concealed carry (which is the so-called licensed privilege that national concealed carry reciprocity would require the states to abide by). Just saying.
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utbagpiper
Banned
The "settled scope" of individual rights is often in flux and tends to be trending toward increased personal liberty.
Remember, the Civil Rights Act was the basis for lots of federal court rulings, not so much the other way around. Ditto the American With Disabilities Act. Congress determined that racial minorities and the handicapped could not be discriminated against. The courts upheld these laws as constitutional.
I say congress should bootstrap from Heller and McDonald, declare that under the 2nd and 14th amendments New Jersey can no longer imprison citizens for carrying a gun that they is perfectly legal to carry in West Virginia, and let New Jersey sue to see if the courts will overturn. Remember, the 3 branches are co-equal. All have equal responsibility for abiding the constitution and respecting individual rights.
Start with nationwide recognition of permits that require a background check and I think the odds of the SCOTUS overturning (assuming Hillary doesn't get to pack it with gun hating lefties) is fairly low at this point.
Charles
davidmcbeth
Banned
What other right requires a permit?
Or BR chk?
You may have posted on the wrong forum .... did you want to post this @ http://everytown.org/ ??
California Right To Carry
Regular Member
You and me both.
But governments are a reflection of the people who put the governments in place. Ask any newly graduated lawyer what is meant by "A switch in time which saved nine" and he will give you a blank stare.
It isn't just the law. 20 years or so ago I was taking post graduate courses in computer science and engineering. I was talking one evening after class with an instructor teaching a neural networks class and we started talking about analog computers from our youth. Some twenty-something Phd student majoring in electrical engineering who was eavesdropping threw a fit saying that there is no such thing as an analog computer and he should know because he is a Phd student majoring in electrical engineering.
I turned to him and asked him "Then what is an Op Amp?"
He did not have a clue. I then turned to the professor and rhetorically asked "Should I ask him about vacuum tubes next?"
For as long as voters are morons, we will have a government of morons by morons and for morons.
I do not have a solution to this problem.
Also, for some reason I do not get email notifications of new posts so don't take offense if I do not respond.
and what singular arithmetic function does a computer accomplish?
ipse
ConditionThree
State Pioneer
Looks like more ego indulgence than updates here.
Glad I didn't miss anything important.
Glad I didn't miss anything important.
California Right To Carry
Regular Member
Petition for Appeal to be heard Initially En Banc filed
My petition for my appeal to be heard initially en banc was filed just after midnight yesterday (December 14th). We should know within a month whether or not an active judge asked for a vote on the petition. If the petition is denied the denial would be "without prejudice" which means that I can file another one if need be.
In addition to the FRAP 35 reasons for granting the petition, I observed that the only other carry cases (Baker and Young) are poor vehicles for an En Banc review for the reasons I gave at my website. Also, mine is the only Open Carry case squarely before the Court and very likely the only one to ever be before the Court.
From my petition:
Baker is the appeal of the denial of a preliminary injunction. Mr. Baker
applied for and was denied a license to carry a concealed handgun in conjunction
with his job as a process server. A job he had voluntarily abandoned.
On September 6, 2016, Mr. Baker filed a Supplemental Brief (Dkt No.: 90)
in response to the Order of the Court of August 16, 2016, “in light of the en banc
decision in Peruta v. County of San Diego, No. 10-56971 and Richards v. Prieto,
No. 11-16255” (Dkt No.: 82). (Peruta v. County of San Diego, 824 F. 3d 919 (9th
Cir. 2016)).
In the first paragraph of Mr. Baker’s Supplemental Brief he stated “For the
reasons explained by the dissent, Mr. Baker believes that holding was in error. Mr.
Baker therefore respectfully preserves the point for further review.”
Given that Mr. Baker seeks to carry a handgun concealed in public and his
candid statement that he disagrees with the en banc decision in Peruta which held
that there is no right under the Second Amendment for the general public to carry a
concealed weapon in public, his is a poor vehicle to argue in defense of the Second
Amendment Open Carry right defined in Heller. Unsurprisingly, Mr. Baker does
not seek to openly carry long guns in public.
Mr. Young for the first time on appeal challenges the State of Hawaii’s
prohibition on openly carrying long guns in public. His attorney is Mr. Alan Beck
who also represents Mr. Baker. Attorney Beck asks for an order either enjoining
HRS 134-9 or compelling local Defendants to adopt policies to allow it to survive
constitutional muster. HRS 134-9 is Hawaii’s handgun licensing law for both
concealed and Open Carry of handguns. Enjoining HRS 134-9 would not give Mr.
Young a license. And to the extent that it is even possible to attack state law
through the City Defendants, Mr. Young’s attorney did not state what policies he
would have this Court compel upon the local officials who are obliged to follow
state law.
My petition for my appeal to be heard initially en banc was filed just after midnight yesterday (December 14th). We should know within a month whether or not an active judge asked for a vote on the petition. If the petition is denied the denial would be "without prejudice" which means that I can file another one if need be.
In addition to the FRAP 35 reasons for granting the petition, I observed that the only other carry cases (Baker and Young) are poor vehicles for an En Banc review for the reasons I gave at my website. Also, mine is the only Open Carry case squarely before the Court and very likely the only one to ever be before the Court.
From my petition:
Baker is the appeal of the denial of a preliminary injunction. Mr. Baker
applied for and was denied a license to carry a concealed handgun in conjunction
with his job as a process server. A job he had voluntarily abandoned.
On September 6, 2016, Mr. Baker filed a Supplemental Brief (Dkt No.: 90)
in response to the Order of the Court of August 16, 2016, “in light of the en banc
decision in Peruta v. County of San Diego, No. 10-56971 and Richards v. Prieto,
No. 11-16255” (Dkt No.: 82). (Peruta v. County of San Diego, 824 F. 3d 919 (9th
Cir. 2016)).
In the first paragraph of Mr. Baker’s Supplemental Brief he stated “For the
reasons explained by the dissent, Mr. Baker believes that holding was in error. Mr.
Baker therefore respectfully preserves the point for further review.”
Given that Mr. Baker seeks to carry a handgun concealed in public and his
candid statement that he disagrees with the en banc decision in Peruta which held
that there is no right under the Second Amendment for the general public to carry a
concealed weapon in public, his is a poor vehicle to argue in defense of the Second
Amendment Open Carry right defined in Heller. Unsurprisingly, Mr. Baker does
not seek to openly carry long guns in public.
Mr. Young for the first time on appeal challenges the State of Hawaii’s
prohibition on openly carrying long guns in public. His attorney is Mr. Alan Beck
who also represents Mr. Baker. Attorney Beck asks for an order either enjoining
HRS 134-9 or compelling local Defendants to adopt policies to allow it to survive
constitutional muster. HRS 134-9 is Hawaii’s handgun licensing law for both
concealed and Open Carry of handguns. Enjoining HRS 134-9 would not give Mr.
Young a license. And to the extent that it is even possible to attack state law
through the City Defendants, Mr. Young’s attorney did not state what policies he
would have this Court compel upon the local officials who are obliged to follow
state law.
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cocked&locked
Member
Lost again
Hey Charlie. You really should keep us up to date with your case. Noticed that you lost again (regarding your motion opposing an extension of time and for sanctions). Care to explain to us how someone with such great expertise and knowledge manages to just keep on losing at every step of the way because your sure quick to mock others concerning setbacks in their cases.
Hey Charlie. You really should keep us up to date with your case. Noticed that you lost again (regarding your motion opposing an extension of time and for sanctions). Care to explain to us how someone with such great expertise and knowledge manages to just keep on losing at every step of the way because your sure quick to mock others concerning setbacks in their cases.
California Right To Carry
Regular Member
January 22, 2017 Update
My petition for my appeal to be heard before an en banc panel is still pending, 40 days later. The last such petition in a same-sex marriage case out of Alaska was denied 27 days after it was filed with no active judge requesting to hear the case en banc.
The state's time-barred motion for a 60 day extension of time was granted by the Appellate Commissioner who cited no case or rule in support of his decision over my objection which called for sanctions. I will be filing a motion to strike the state's answering brief in whole and in part. That motion is supposed to be decided by the merits panel but we'll see.
Given that there are so very few supporters of Open Carry here, I rarely post updates here. I post frequent updates at my website.
Update by Charles Nichols, President of California Right To Carry – January 17, 2017 – The Answering Brief by Governor Brown and the Attorney General in my California Open Carry appeal was Due on December 19, 2016 which was 29 days ago. In a decision published last Friday by the 9th Circuit Court of Appeals, a man did not get his $99,500 returned from the government because he missed his filing deadline by thirty-five minutes. I filed my opposition to the state’s time-barred motion for an extension on December 20th, well within the ten day limit for me to file my opposition. The state missed its deadline, I have met all of my deadlines. The state’s motion is still pending. It will be interesting to see how this plays out. Hopefully, it will not be a case of “One rule for me and another for thee.”
Unsurprisingly, the state does not have to play by the rules:
Update by Charles Nichols, President of California Right To Carry – January 18, 2017 – Without explanation, the 9th circuit court of appeals Appellate Commissioner granted the state’s time-barred motion for a sixty day extension of time to file its Answering Brief (now due February 17th) and denied my request for sanctions. And so the 9th circuit court of appeals is going to let the state’s attorney violate the rules of the court of appeals just as the district court judge allowed the state’s attorney to violate the Federal district court rules.
34 – Nichols v. Brown – ORDER
Notice of Docket Activity
The following transaction was entered on 01/18/2017 at 10:57:27 AM PST and filed on 01/18/2017
Case Name: Charles Nichols v. Edmund Brown, Jr., et al
Case Number: 14-55873
Document(s): Document(s)
Docket Text:
Filed order (Appellate Commissioner): Before: Peter L. Shaw, Appellate Commissioner Appellees’ opposed late motion (Docket Entry No. [32]) for an extension of time to file the answering brief is granted. The answering brief is due February 17, 2017. The optional reply brief is due within 14 days after service of the answering brief. Appellant’s request (Docket Entry No. [33]) for sanctions is denied. Appellant’s petition for rehearing en banc (Docket Entry No. [31]) will be addressed in a separate order. (Pro Mo) [10269637] (LL)
My petition for my appeal to be heard before an en banc panel is still pending, 40 days later. The last such petition in a same-sex marriage case out of Alaska was denied 27 days after it was filed with no active judge requesting to hear the case en banc.
The state's time-barred motion for a 60 day extension of time was granted by the Appellate Commissioner who cited no case or rule in support of his decision over my objection which called for sanctions. I will be filing a motion to strike the state's answering brief in whole and in part. That motion is supposed to be decided by the merits panel but we'll see.
Given that there are so very few supporters of Open Carry here, I rarely post updates here. I post frequent updates at my website.
Update by Charles Nichols, President of California Right To Carry – January 17, 2017 – The Answering Brief by Governor Brown and the Attorney General in my California Open Carry appeal was Due on December 19, 2016 which was 29 days ago. In a decision published last Friday by the 9th Circuit Court of Appeals, a man did not get his $99,500 returned from the government because he missed his filing deadline by thirty-five minutes. I filed my opposition to the state’s time-barred motion for an extension on December 20th, well within the ten day limit for me to file my opposition. The state missed its deadline, I have met all of my deadlines. The state’s motion is still pending. It will be interesting to see how this plays out. Hopefully, it will not be a case of “One rule for me and another for thee.”
Unsurprisingly, the state does not have to play by the rules:
Update by Charles Nichols, President of California Right To Carry – January 18, 2017 – Without explanation, the 9th circuit court of appeals Appellate Commissioner granted the state’s time-barred motion for a sixty day extension of time to file its Answering Brief (now due February 17th) and denied my request for sanctions. And so the 9th circuit court of appeals is going to let the state’s attorney violate the rules of the court of appeals just as the district court judge allowed the state’s attorney to violate the Federal district court rules.
34 – Nichols v. Brown – ORDER
Notice of Docket Activity
The following transaction was entered on 01/18/2017 at 10:57:27 AM PST and filed on 01/18/2017
Case Name: Charles Nichols v. Edmund Brown, Jr., et al
Case Number: 14-55873
Document(s): Document(s)
Docket Text:
Filed order (Appellate Commissioner): Before: Peter L. Shaw, Appellate Commissioner Appellees’ opposed late motion (Docket Entry No. [32]) for an extension of time to file the answering brief is granted. The answering brief is due February 17, 2017. The optional reply brief is due within 14 days after service of the answering brief. Appellant’s request (Docket Entry No. [33]) for sanctions is denied. Appellant’s petition for rehearing en banc (Docket Entry No. [31]) will be addressed in a separate order. (Pro Mo) [10269637] (LL)