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CRPANews Alert: Fighting for Your Right to Carry in CA

October 12, 2018

The Second Amendment protects the right of every law abiding American to carry a firearm for self-defense in public. While some states, including California and Hawaii, vehemently resist this reality, the Ninth Circuit Court of Appeals recently issued an opinion in the case of Young v. Hawaii confirming those states are mistaken by striking down Hawaii’s restrictive and impossible standards for acquiring a license to openly carry a firearm in public.

Following this latest vindication of the Second Amendment by the court, some are asking why CRPA or NRA has not used the Young decision to immediately file a lawsuit challenging California’s open carry restriction. Some are even absurdly alleging that CRPA and NRA are against open-carry. Nothing could be further from the truth. These folks may not realize that a lawsuit challenging California’s open carry laws was filed over a year ago and is currently pending before the Ninth Circuit. That case, titled Flanagan v. Becerra, challenges California’s entire scheme restricting the carrying of a firearm for self-defense in public, both openly and concealed. CRPA is a plaintiff in Flanagan and the case was filed with the support of the NRA.

CRPA is doing everything in its power to ensure that “right-to-carry” cases are strategically and timely litigated by top-notch civil rights attorneys to maximize the potential for a ruling from the United States Supreme Court finally confirming that the Second Amendment guarantees the right of law-abiding citizens to carry a firearm for self-defense outside the home. While certain jurisdictions may elect to favor one form of carry (open or concealed) over another, CRPA does not.

CRPA’s only concern is that the government cannot deny the right to carry a firearm in public in some manner. The Flanagan lawsuit, and several other lawsuits on the same issue, are being litigated in other jurisdictions with support from CRPA and assistance from the NRA. Any one of these cases could settle this issue nationally and bring the right to carry to the Ninth Circuit states.

Below we discuss the history of the Flanagan lawsuit, including how it came to be filed, and CRPA’s position regarding open versus concealed carry.

CRPA / NRA Ongoing Efforts in the Ninth Circuit Court of Appeals

In 2009, CRPA Foundation, with the support of the NRA, filed a lawsuit challenging San Diego County’s arbitrary “good cause” standard for the issuance of a concealed carry license. The argument was that because California banned open carry, but would issue licenses to carry concealed, under the Second Amendment, it could not arbitrarily withhold those licenses from law-abiding people. That case was titled Peruta v. San Diego County. The Peruta lawsuit did not express a policy preference for concealed or open carry. It alleged that because both methods of carry were effectively prohibited by California law, a license to carry must be issued without the need for proving that an applicant has a special need beyond self-defense (the “good cause” requirement). Nearly five years after it was filed, the case resulted in a ground-breaking ruling from a 3-judge panel of the Ninth Circuit confirming that policies denying the right of average, law-abiding citizens to carry a firearm for self-defense are unconstitutional.

The decision that a special need beyond self-defense could not be required for an applicant to get a license to carry in public sent shockwaves throughout the nation. California’s anti-gun-owner Attorney General at the time, Kamala Harris, went apoplectic. The Attorney General’s office immediately filed a motion to intervene into the case and appeal the ruling to a full Ninth Circuit “en banc” panel. Amicus briefs in support of the Attorney General’s motion were filed by anti-gun groups like the Brady Campaign and the [Gifford’s] Law Center to Prevent Gun Violence (the gun ban lobby’s law firm in San Francisco).

In what was once considered an extraordinary step, the Ninth Circuit ordered the case to be reheard by a larger 11-judge “en banc” panel. That panel ultimately issued a new opinion in 2016 reversing the 3-judge panel opinion. In doing so, the 11-judge panel avoided the larger issue and question presented in the case, and narrowly held that concealed carry is not a right protected by the Second Amendment, despite Plaintiffs never asserting that it was. In other words, seven of the judges on the 11-judge panel ignored the larger question of whether the Second Amendment protects the right of law-abiding citizens to carry a firearm in public in some manner.

The Peruta en banc court, however, left open the question of whether there is a right to open-carry under the Second Amendment. So immediately following the en banc decision in Peruta, the CRPA, with support from the NRA, filed the Flanagan lawsuit, which unambiguously challenges all of California’s restrictions on carrying a firearm for self-defense in public, including California’s ban on open carry. This lawsuit names both California Attorney General Xavier Becerra and Los Angeles Sheriff James McDonnell as defendants because, between California law and the Sheriff’s local policy, law-abiding residents of Los Angeles County have no meaningful way to exercise their fundamental right to bear arms, whether openly or concealed.

Before the Flanagan appeal could be ruled on by the Ninth Circuit court, the Young case was favorably decided. Fortunately, the Peruta opinion’s author, Judge Diarmuid F. O’Scannlain, was the presiding judge in theYoung appeal, and he essentially re-issued the Peruta opinion in Young. Because the “en banc” panel in Peruta refused to answer the question as to whether or not the Second Amendment protects the right of law-abiding citizens to carry a firearm in public, Judge O’Scannlain had little difficulty in extending his reasoning in Peruta, this time simply applying it to open carry as opposed to any carry.

Setting the Record Straight on Peruta

Some took issue with CRPA’s approach in Peruta, believing that CRPA was choosing to advocate for concealed over open carry. But it was not CRPA who made that choice—in California the only manner a law-abiding citizen can generally carry a firearm in public is with a concealed carry license. As a result, CRPA argued that denial of such a license to the average, law-abiding citizen is unconstitutional. It sought to confirm a right to carry a firearm for self-defense in some manner, the one preferred by the state, rather than seeking to establish a right to carry a firearm in a particular manner.

Despite this clear and sensible strategy, some critics remain. They claim that CRPA and NRA have attempted to “torpedo” other open carry lawsuits by pointing to an amicus brief filed in another lawsuit being litigated by a non-lawyer. But that brief was merely intended to inform the court about other pending litigation on the issue and to urge caution in deciding a case based on the briefing of a non-lawyer; and for good reason. A loss in such a case before the Ninth Circuit could permanently damage the rights of all law-abiding gun owners.

At no point in its brief, nor at any other time, have CRPA lawyers taken a position on whether open or concealed carry is preferable. To the contrary, they made clear in that same brief, that “as [CRPA] understands Heller, the government may be able to, for example, lawfully ban the concealed carry of firearms, as long as the people are able to openly carry them, or vice versa,” and that “while [CRPA] promotes neither open or concealed carry as preferable constitutionally speaking, that government has an option between the two seems to be the most likely lesson the Supreme Court intended to convey.”

CRPA Supports Open and Concealed Carry

Despite CRPA’s clear support for open carry, there are still some people who—whether ignorantly or willfully—misrepresent CRPA’s position. The truth of the matter is the CRPA does not advocate for one form of carry over another. Rather, CRPA defers to its team of very knowledgeable attorneys to determine how best to vindicate law abiding citizens’ right to carry a loaded firearm in public for self-defense, period. Their legal assessment is that the proper interpretation of the landmark United States Supreme Court decision in District of Columbia v. Heller is that the government must allow some form of public carry. To understand how Heller is properly applied in this respect, read the article by Joseph Greenlee published here.

This approach is reflected in two cases CRPA participated in before the Ninth Circuit Court of Appeals, as well as multiple cases it has supported in other jurisdictions, that aim to secure a ruling that the Second Amendment protects an individual’s right to carry a firearm for self-defense. The fact that some critics continue to claim that CRPA is anti-open carry, especially in light of the language in its briefing shows they either never read CRPA’s briefs or they wish to push a false narrative against CRPA for personal reasons.

The public record shows the same is true of the NRA, who has supported CRPA’s legal challenges to California’s carry restrictions. The NRA has spent time and money working to protect the ability to openly carry a firearm for self-defense in California and around the country. For example, the NRA has routinely and successfully backed legislation legalizing and expanding open carry in other states, including bills introduced in TexasOklahoma, and Florida. The NRA has also consistently supported permit-less or “constitutional” carry laws, including legislation introduced in Utah, KansasArizona, Maine and Missouri. The NRA’s litigation efforts have generally sought to compel the issuance of concealed carry licenses solely because legislative schemes in anti-gun jurisdictions generally require residents to carry firearms concealed, in the event they allow them to carry at all.

Understanding the Effect of Young v. Hawaii

Although the recent decision in Young held Hawaii’s restrictions on open carry are unconstitutional, the decision does not mean you can now openly carry a firearm in California. California’s carry restrictions are still in full force and effect, meaning you can and likely will be arrested if you openly carry a firearm in a location where it is illegal to do so under current California laws.

So why not file a lawsuit in California now to change that? As was the case with the 3-judge panel decision in Peruta v. County of San Diego, the Young decision will likely be taken en banc by the Ninth Circuit, meaning the case will be reheard by a larger 11-judge panel. In fact, Hawaii has already filed a request for en banc review of Young. All judges of the Ninth Circuit will soon vote on whether to rehear the case. If a majority agree (which they are expected to do), the case will be reheard, effectively nullifying the original 3-judge panel opinion. This is exactly what happened in Peruta. To read more about the “en banc” process, click here.

Since it is essentially guaranteed that Young will be taken en banc, it is both impractical and a waste of resources to pursue provisional remedies against California’s carry laws based on Young’s 3-judge panel opinion. Seeking a temporary injunction, for example, against California’s carry restrictions would cost significant resources that could be better spent on the fight that is sure to come. What’s more, it is also highly unlikely to succeed because a temporary injunction is an extreme remedy. Because the basis for such an injunction (the Young opinion) is still pending further review, a lower court would refuse to issue any injunction until the Ninth Circuit is definitively finished with that case. Just because Young is currently binding precedent on lower courts does not change that fact.

The recent decision in the case of Tracy Rifle and Pistol v. Harris illustrates this point well. Originally filed in 2014, the case challenges California’s archaic restrictions against the display of handguns or imitation handguns on the premises of a store that can be seen from the outside. The plaintiffs filed a motion for preliminary injunction, as the challenged statute in question was clearly unconstitutional under existing First Amendment precedent. Despite this, the judge declined to issue the preliminary injunction, which decision was upheld by the Ninth Circuit, but has now held the statute unconstitutional in his final decision on the merits.

So, the issuance of a preliminary injunction is not always a sure bet, even when presented with a clear case of a statute violating a constitutional right. What’s more, temporary restraining orders are just that—temporary. In federal court, a temporary restraining order is generally limited to 14 days, meaning even if such an order were to be issued, it would generally expire after two weeks unless a fully briefed hearing to extend the order beyond the 14 days was had.

It simply makes no sense to seek preliminary relief when the Flanagan lawsuit is already filed and will ultimately decide whether California’s carry restrictions violate the Constitution, regardless of the outcome of the Young case. Should Flanagan succeed at the Ninth Circuit, it would mean the right to carry would be respected in California. But even if the Ninth Circuit ultimately refuses to recognize the Second Amendment right, CRPA will seek Supreme Court review. Thanks to the efforts of the NRA in electing Donald Trump, another pro-Second Amendment Supreme Court justice is likely to be on the bench by then. This will greatly increase the chances of the case’s ultimate success.

Where We Go from Here

It is easy to get frustrated with the slow pace of the courts. After all, a right delayed is a right denied. But the Flanagan case (and all of the other Second Amendment cases that these groups are supporting) proves NRA and CRPA have never stopped fighting for the right of all law-abiding California gun owners to carry a firearm in public—and will continue to do so until that right is firmly cemented in California.

In fact, California’s Attorney General just recently filed a “Petition for Initial Hearing En Banc” in the Flanagan lawsuit. If California’s petition is granted, it would mean the case would go straight to an 11-judge panel as opposed to a 3-judge panel. CRPA’s attorneys stated in response to this petition that the Young opinion correctly held that the right to bear arms extends beyond the home, and as a result see no reason for the case to be reviewed initially “en banc.” That said, if the Ninth Circuit does ultimately decide to rehear the Young lawsuit “en banc,” which is already very likely, the Flanagan lawsuit should be heard concurrently so the court can consider the constitutionality of California’s restrictions alongside Hawaii’s.

But it is imperative that Second Amendment cases be brought by plaintiffs with experienced attorneys who competently and expertly evaluate and litigate the issues to maximize the chances of success. Just like a classic car collector wouldn’t want his or her cars to be repaired by someone who has only read a “how-to” book, gun owners cannot afford to risk their Second Amendment rights in litigation by inexperienced counsel or, worse, someone who does not even have a license to practice law. The CRPA’s and NRA’s experienced team of lawyers, scholars, and experts are dedicated to minimizing the impact of cases brought by misguided individuals, while simultaneously advancing your Second Amendment rights in the courtroom by bringing well-crafted cases that will maximize the potential for success. NRA and CRPA urge you to direct any well-intentioned individuals who may be thinking of filing a Second Amendment lawsuit to contact them before doing so.

To stay up-to-date on the Young and Flanagan cases, make sure you are subscribed to NRA and CRPA email alerts. And be sure to visit the NRA-ILA California dedicated webpage at www.StandAndFightCalifornia.comand the new CRPA webpage at www.CRPA.org.

Help Us Help You

Please help us fight for your right to choose to own a gun for sport, or to defend yourself and your family. The NRA and CRPA and work together in California to fight for you in Sacramento, in cities and counties across the state, in regulatory agencies, and in the courts. Even with the generous rates that our team of civil rights attorneys, legislative advocates, experts and consultants grant us, these ongoing efforts are still expensive. You can support our pro-Second Amendment efforts in California by donating to the CRPA Foundation(CRPAF). CRPAF is a 501(c)(3), so contributions to CRPAF are tax-deductible. Or donate to the NRA Legal Action Project. All donations will be spent to specifically benefit California gun owners.

For a summary of current and recent actions the NRA and CRPA have taken on behalf of California gun owners click here. To read about some of the past actions NRA and CRPA have taken in the fight for your Second Amendment rights in California, click here.

The Second Amendment protects the right of every law abiding American to carry a firearm for self-defense in public. While some states, including California and Hawaii, vehemently resist this reality, the Ninth Circuit Court of Appeals recently issued an opinion in the case of Young v. Hawaii confirming those states are mistaken by striking down Hawaii’s restrictive and impossible standards for acquiring a license to openly carry a firearm in public.

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