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Thread: Peruta v. San Diego is not binding - Nichols v. Brown will set the binding precedent.

  1. #1
    Regular Member California Right To Carry's Avatar
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    Dec 2013
    United States

    Thumbs up Peruta v. San Diego is not binding - Nichols v. Brown will set the binding precedent.

    It is curious how many people here, on an "Open Carry" forum, are applauding the Peruta decision. One in which the court said that California can favor concealed carry over Open Carry. But then again the court held that it wasn't saying that "the Second Amendment requires the states to permit concealed carry."

    One would think that the NRA lawyer who filed the Peruta appeal, Chuck Michel, would be dancing from the rooftops instead of being so subdued in his interviews.

    Fortunately, the Peruta decision did not set a binding precedent. The decision was explicitly limited to the current policy of the Sheriff of San Diego County and if the Sheriff wants to continue the fight in district court, it will be years before the case is once again on appeal. Don't believe me? Look at Ezell v. Chicago which was remanded back in July of 2011.

    One of the reasons that Peruta was "permitted" to bring his challenge was because he did not seek to carry a handgun "secretly" and because he did not do so in the context of a broad-based challenge to California's Open Carry laws and because he did not challenge the constitutionality of any law, according to the court. I agree with the minority that that is exactly what Peruta did but no matter.

    Alan Gura filed a letter with the court of appeals the next day retracting his facial constitutional challenge to the "good cause" and "good moral requirement" provisions of California's concealed carry law. Just in case you were wondering why the decision in SAF/CalGuns concealed carry case Richards v. Prieto was not published when the Peruta decision was, it is because Richards, unlike Peruta, was challenging the California concealed carry law.

    Assuming that the court allows Gura to withdraw his challenge to the state law and disposes of the case with a non binding remand back to the district court, which is what Gura is now asking for, guess which case will be the first to be decided which actually makes a Constitutional challenge to a California law "regulating" the carrying of firearms not only in public, but in an as-applied challenge to the curtilage of my home? Mine, Nichols v. Brown.

    I realize that there are a lot of people here who oppose my Open Carry lawsuit, some of them even have "CalGuns" and/or "SAF" and/or "NRA" in their signature/taglines. But I would like to point out that I did not limit my lawsuit to carrying concealable firearms, i.e., handguns. My lawsuit challenges California's 1967 ban on Loaded Open Carry which applies to all firearms, California's 2012 ban on openly carrying unloaded handguns and California's 2013 ban on openly carrying unloaded firearms that are not concealable.

    Nor did I limit my lawsuit to the Second Amendment. I have a bullet-proof 14th Amendment equal protection claim based on a suspect classification (race) against the 1967 Loaded Open Carry ban. There is a reason it is called the Black Panther Ban.

    The NRA persuaded an assistant clerk at the 9th Circuit Court of Appeals to stay the appeal of my preliminary injunction until Peruta and two other concealed carry cases heard on the same day before the same panel was decided. The NRA hoped it would get a binding precedent. It failed. The SAF is now asking for the same outcome, a non-binding remand back to the district court. Which leaves Baker, a case out of Hawaii in which the attorney in oral arguments said he "shot himself in the foot" by appealing when he did.

    And so, even absent a Second Amendment, the 1967 Loaded Open Carry ban gets struck down. Since the Court said that Peruta was allowed to make his limited case because Open Carry has been banned, Peruta, and every other concealed carry case in California becomes moot.

    So burn me in effigy and stick your voodoo pins in dolls all you want. Even California Attorney General Harris' attorney has conceded that he is going to lose his fight to preserve the Black Panther Open Carry Ban.

    Happy CalGunning, SAFing and NRAing.

    P.S. Did I mention that Attorney General Harris did not dispute most of my Statement of Undisputed Facts, including the one were I said that concealed carry is a "substantial burden" on my ability to defend myself? That tidbit speaks volumes on the likelihood of my success.

    Charles Nichols - President of California Right To Carry

    "[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."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2816.

  2. #2
    Regular Member sudden valley gunner's Avatar
    Join Date
    Dec 2008
    Whatcom County
    First I applaud you for moving out and drawing fire.

    I have supported your fight from the beginning and I hope you are successful.

    I do wish you would cut out some of the other asshattery, it makes me not like you as a person, just saying. Don't get me wrong I do understand and watched (and spoke out against) as you were attacked and called names by many of the "my way or the highway" crowd of those who believe we must play their game for rights. And those few people do deserve to be treated as they dealt out, but the generalizing statements of others who may disagree or who offer criticism will cause people to not support you.
    Last edited by sudden valley gunner; 02-18-2014 at 08:16 AM.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  3. #3
    Regular Member Fuller Malarkey's Avatar
    Join Date
    Sep 2010
    The Cadre
    What SVG said.

    Coming in here and throwing a bucket of urine on the campfire everyone is sitting around isn't the way to endear yourself. Everyone that gets a whiff of that will be rounding up socks and soap bars instead of listening and getting on board. Your call.
    Liberty is so strongly a part of human nature that it can be treated as a no-lose argument position.

    From the cop’s perspective, the expression “law-abiding citizen” is a functional synonym for “Properly obedient slave".

    "People are not born being "anti-cop" and believing we live in a police state. That is a result of experience."

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