Getting a split with Moore will be difficult; they'll just say it was a total carry ban, which isn't the case in CA. You would have a split between CA9 and the 19th century state courts (Nunn, Chandler, Reid,exc.). It would be interesting if SCOTUS viewed it as a legitimate split, or, would they want the split to be post-Heller?
The split with Moore is a clear split.
California copied and pasted its 1967 ban from Illinois. The 1967 California statute, like the Illinois statute struck down in Moore, does not differentiate between concealed and Open Carry. An advantage the 9th Circuit has in my lawsuit that the 7th Circuit didn't have in Moore is that California has a separate statute criminalizing concealed carry. When Posner struck down the Illinois ban on carrying loaded firearms (and the separate ban on carrying unloaded firearms) his injunction would have legalized concealed and open carry. If the 9th Circuit issues an injunction against PC 25850 and the two unloaded Open Carry bans, the prohibition on the carrying of firearms concealed, loaded or unloaded, remains. Remember, Judge Posner in his decision did not say that Illinois could prohibit Open Carry. He did not say that Illinois could choose concealed carry over Open Carry. Judge Posner said that, as per the Heller decision, Illinois could require that firearms be carried openly.
Putting aside the fact that Illinois did issue concealed carry permits for certain occupations, concealed carry is irrelevant to my lawsuit. Concealed carry is not a right (beyond the limited 19th century exceptions) and a ban on concealed carry is no more relevant to my lawsuit than California's ban on cocaine use and possession (which has limited exceptions).
It is an interesting question as to whether or not the split must be post-Heller but as to Nunn and Chandler, the two cases that the Court in Heller said perfectly captured the meaning of the right to keep and bear arms, both of them were reaffirmed by their state supreme courts post Heller.
FYI, the California Supreme Court adopted Nunn in 1924 and other than a 1972 decision striking down a ban on persons who were not born in this country from even possessing firearms, Nunn remains the binding precedent in the California courts in construing state law with the caveat that the California courts have construed the prohibition (not present in Nunn or in 1924) on carrying loaded firearms (openly or concealed) to be valid.
Finally, let us say that the 3 judge panel decision in Peruta is affirmed. So what? The now vacated Peruta decision clearly stated that it was not saying that there is a right to carry a concealed firearm. Their interpretation was that the right was to carry a loaded firearm. In my Open Carry lawsuit, the Attorney General did not dispute my uncontroverted fact that concealed carry substantially burdens my ability to defend myself even if I lived in a jurisdiction which issued concealed carry permits and I had a concealed carry permit.
"To be clear, we are not holding that the Second Amendment requires the states to permit concealed carry." Peruta v. County of San Diego, 742 F. 3d 1144 - Court of Appeals, 9th Circuit (2014) at 1172.
My lawsuit seeks to openly carry modern firearms in the same places where it is now legal for me to openly carry antique firearms and to carry them loaded, but not in all places were I can openly carry antique firearms (incorporated cities) or unloaded firearms (unincorporated county territory) or in all places where it is now legal for me to openly carry antique and modern firearms, loaded and unloaded, either while hunting or while traveling to and from my hunting expedition (which is pretty much everywhere inside of an incorporated city excluding certain government buildings and school grounds).
I brought the narrowest possible challenge back in November of 2011. This was more than a year before the decisions in Moore v. Madigan and Peterson v. Martinez. I was encouraged to challenge the Gun Free School Zones but I knew then that doing so would make it easy for the courts to say that GFSZs are "sensitive" places under Heller and then conflate GFSZs with public places that lie outside of the GFSZs with sensitive places. That strategy has thus far been successful. Nowhere in the district court did the state defendants claim that I seek to carry in sensitive places for the obvious reason that anyplace where it is legal for a hunter to carry a loaded gun which also happens to lie completely outside of a GFSZ can't be construed as a sensitive place. The state is procedurally barred from making that claim as a defense on appeal. Doubly so given that I am the appellant.
All the concealed carry lawsuits shot for the moon in a balloon. I kept my Open Carry lawsuit firmly on the ground. I may not reach the moon but if I succeed then we will be able to openly carry modern loaded firearms and to carry them loaded in every place where it was legal to openly carry an unloaded modern handgun before the bans went into effect.
[video]https://youtu.be/UaxxuyBvB-M[/video]
