State of California Concedes Second Amendment Extends Outside the Home

This was an unexpected concession by California's Solicitor General during the en banc oral arguments in Peruta v. San Diego / Richards v. Prieto.

We owe a debt to Circuit Judge Carlos Bea who pinned the State down to clearly articulate its position on whether or not the Second Amendment is limited to the home.

This was a huge concession by the State. My Open Carry lawsuit was filed in November of 2011 and the State has never even conceded a right to carry a firearm in the home, let alone in the curtilage of one's home. All I ever needed to prevail in my lawsuit was for the court to conclude that I have a right to carry a loaded firearm on my porch. Now, not only has the State made that concession, it has said that the "core right" extends beyond the curtilage of the home to public places.

The NRA lawyer, as expected, argued that states can ban Open Carry. The SAF/CalGuns lawyer has always made that argument in every SAF concealed carry lawsuit.



From my press release:

"Today, June 16, the Solicitor General for the State of California was asked by Circuit Judge Carlos Bea to make it clear that his understanding is that the State’s position is that the Second Amendment “core right” defined in the 2008 US Supreme Court Heller decision can apply outside of the home?

The State of California replied “Yes, with a qualification.” That qualification being that the Second Amendment does not confer the right to carry a handgun concealed especially in cities and towns."

Read more here.

I wrote up my predictions as to how each of the eleven judges are likely to vote on June 8th which was six against Peruta/Richards, one for and the rest undecided. Based on the oral arguments I think it is safe to add two more judges in the against column.

A couple of the judges asked whether or not the two cases should be remanded back to the district court in light of the unloaded Open Carry bans, Gura was vehemently opposed. The NRA lawyer, Paul Clements, acted like he had a three martini lunch before court.

The State indicated that a remand would be appropriate or (worst case) that the court should issue a very narrow decision limiting the issuance of permits to just the plaintiffs and to address the broader question of the scope of the Second Amendment right in a future case. That future case is my Open Carry lawsuit.

A frequently asked question is when will we have a decision? The answer is there is no time limit. It could be weeks, months or years. Barring an unexpected grant of cert by SCOTUS which, in light of the denial of cert in Jackson v. San Francisco is unlikely, I suspect that we will have a decision in three to six months. In light of the denial of cert in Jackson v. San Diego, the plaintiffs were fools not to leap at the chance for their cases to be remanded back to the district court. If the en banc court treats this case as what it is, concealed carry, then Peruta and Richards lose. Given that there is no circuit split on concealed carry there is no reason for SCOTUS to grant cert and that is the end of their lawsuits.

Here is a video of the oral arguments [video]https://youtu.be/anKfVru1des[/video]

California Right To Carry said:

...The NRA lawyer, as expected, argued that states can ban Open Carry. The SAF/CalGuns lawyer has always made that argument in every SAF concealed carry lawsuit...

Click to expand...

If States can ban open carry, then what method of carry is the RIGHT??

California Right To Carry said:

This was an unexpected concession by California's Solicitor General during the en banc oral arguments in Peruta v. San Diego / Richards v. Prieto.

We owe a debt to Circuit Judge Carlos Bea who pinned the State down to clearly articulate its position on whether or not the Second Amendment is limited to the home.

This was a huge concession by the State. My Open Carry lawsuit was filed in November of 2011 and the State has never even conceded a right to carry a firearm in the home, let alone in the curtilage of one's home. All I ever needed to prevail in my lawsuit was for the court to conclude that I have a right to carry a loaded firearm on my porch. Now, not only has the State made that concession, it has said that the "core right" extends beyond the curtilage of the home to public places.

(1-) The NRA lawyer, as expected, argued that states can ban Open Carry.</b> The SAF/CalGuns lawyer has always made that argument in every SAF concealed carry lawsuit.

View attachment 12594

From my press release:

"Today, June 16, the Solicitor General for the State of California was asked by Circuit Judge Carlos Bea to make it clear that his understanding is that the State’s position is that the Second Amendment “core right” defined in the 2008 US Supreme Court Heller decision can apply outside of the home?

(2-)(41:05)The State of California replied “Yes, with a qualification.” That qualification being that the Second Amendment does not confer the right to carry a handgun concealed especially in cities and towns."

Read more here.

I wrote up my predictions as to how each of the eleven judges are likely to vote on June 8th which was six against Peruta/Richards, one for and the rest undecided. Based on the oral arguments I think it is safe to add two more judges in the against column.

A couple of the judges asked whether or not the two cases should be remanded back to the district court in light of the unloaded Open Carry bans, Gura was vehemently opposed. The NRA lawyer, Paul Clements, acted like he had a three martini lunch before court.

The State indicated that a remand would be appropriate or (worst case) that the court should issue a very narrow decision limiting the issuance of permits to just the plaintiffs and to address the broader question of the scope of the Second Amendment right in a future case. That future case is my Open Carry lawsuit.

A frequently asked question is when will we have a decision? The answer is there is no time limit. It could be weeks, months or years. Barring an unexpected grant of cert by SCOTUS which, in light of the denial of cert in Jackson v. San Francisco is unlikely, I suspect that we will have a decision in three to six months. In light of the denial of cert in Jackson v. San Diego, the plaintiffs were fools not to leap at the chance for their cases to be remanded back to the district court. If the en banc court treats this case as what it is, concealed carry, then Peruta and Richards lose. Given that there is no circuit split on concealed carry there is no reason for SCOTUS to grant cert and that is the end of their lawsuits.

Here is a video of the oral arguments [video]https://youtu.be/anKfVru1des[/video]

Click to expand...

1-Clement specifically says that the issue is not whether there is a right to "concealed carry"(1:50).... which is contrary to your assertions that NRA is arguing that states can 'ban' open carry. States must leave some avenue for the right to bear arms for self defense. He is saying that some means must be made available, and that states cannot foreclose all means. States can regulate carry and prefer open carry or concealed carry, but not prohibit both. How you jump to this conclusion based upon the counsels argument is solely based in your imagination. What difference does it make to you whether the right expressed, is through open carry or concealed carry? A loaded firearm carried ready for self defense is as effective concealed as it is loaded... is it not?

2-Whether counsel for the State of California concedes that there is any right to keep and bear arms beyond the curtilage of the home is not particularly relevant as you make it out to be. This was already part of the Heller decision. (41:05) The position of the State of California can be argued differently as applied to other plaintiffs and circumstances in different cases,including yours. In other words, your right to bear arms outside the home might still be regulated by some other as yet, unmanifested qualification, or rely wholly upon California's discretionary concealed carry licensing scheme (Which includes a provision for a license to carry loaded and exposed in counties of less than 200K)

3- The only party to this proceeding that indicates that open carry in public spaces can be regulated is the counsel of the State of California- with its 'rich tradition of regulation(42:55) and Mr Whitesides the counsel of Yolo County (Who says that loaded open carry is legal in 95% of the county.)

BB62 said:

If States can ban open carry, then what method of carry is the RIGHT??

Click to expand...

States can regulate the method of carry as long as they do not 'foreclose' all means to bear. Both open and concealed carry are the right.

ConditionThree said:

States can regulate the method of carry as long as they do not 'foreclose' all means to bear. Both open and concealed carry are the right.

Click to expand...

I was wondering how long it would be before someone from CalGuns.nuts trolled one of my posts.

Concealed carry is not a right according to SCOTUS and concealed carry is not a right according to state courts which have upheld prohibitions on concealed carry going back over 200 years. The plaintiffs in Peruta and Richards don't even claim that there is a right to carry concealed. Their argument is, contrary to longstanding precedents, that states can ban Open Carry and having done so must issue concealed carry permits.

Nowhere in the history of the Second Amendment right to keep and bear arms can you cite any decision which held that states can chose concealed carry over Open Carry. That is an invention of the NRA and SAF which two judges on the 9th Circuit Court of Appeals bought hook, line and sinker. Fortunately, a majority of the active judges of the 9th Circuit recognize snake oil when they see it and vacated the Peruta decision.

Only a Kool-Aid drinking fool believes that the en banc court is going to affirm the vacated panel decision in Peruta. Peruta and Richards will lose, they will file cert petitions and their cert petitions will be denied both because concealed carry is not a right and because every Federal circuit has said that concealed carry is not a right.


So tell the class 1) Why are you posting on an Open Carry website and 2) Which six of the eleven judges on the en banc panel are going to affirm the vacated Peruta decision? [video]https://youtu.be/anKfVru1des[/video]
















"[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 (2008) at 2809

"[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons..." Robertson v. Baldwin, 165 US 275 - Supreme Court (1897) at 282.

"In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the "natural right of self-defence" and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right...Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had 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 (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. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. 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. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251..." District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816

Hightower v. City of Boston, 693 F. 3d 61 - Court of Appeals, 1st Circuit (2012)
"Under current Supreme Court precedent, Hightower cannot make out her Second Amendment claim as to the concealed weapon aspect of her revoked license, as she must for her as-applied challenge to succeed. Under our analysis of Heller, as follows, the government may regulate the carrying of concealed weapons outside of the home.
In Heller, the Court explained that "the right secured by the Second Amendment is not unlimited" and noted that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under Second Amendment or state analogues." 128 S.Ct. at 2816. We have interpreted this portion of Heller as stating that "laws prohibiting the carrying of concealed weapons" are an "example[] of `longstanding' restrictions that [are] `presumptively lawful' under the Second Amendment." United States v. Rene E., 583 F.3d 8, 12 (1st Cir.2009) (quoting Heller, 128 S.Ct. at 2816-17 & n. 26); see also Robertson v. Baldwin, 165 U.S. 275, 281-82, 17 S.Ct. 326, 41 L.Ed. 715 (1897) (observing that "the first 10 amendments to the [C]onstitution" protect rights that are "subject to certain well-recognized exceptions" and stating, in dicta, that the Second Amendment right "is not infringed by laws prohibiting the carrying of concealed weapons").[9] Licensing of the carrying of concealed weapons is presumptively lawful, and Hightower makes no serious argument to the contrary." Id at 73-74.

Kachalsky v. County of Westchester, 701 F. 3d 81 - Court of Appeals, 2nd Circuit (2012)
"Notably, Chandler and Reid conflict with Plaintiffs' position, at least in part. Plaintiffs contend that a state may choose to ban open carrying so long as concealed carrying is permitted. But both Chandler and Reid suggest that open carrying must be permitted. The Reid court explained:
Under the provision of our constitution, we incline to the opinion that the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence.
1840 WL 229, at *5; see also Chandler, 1850 WL 3838, at *1." Id at [fn 13]

Drake v. Filko, 724 F. 3d 426 - Court of Appeals, 3rd Circuit (2013)
"New Jersey's longstanding handgun permitting schema is not an anomaly. Many recent judicial opinions have discussed historical laws regulating or prohibiting the carrying of weapons in public. See, e.g., Peterson v. Martinez, 707 F.3d 433*433 1197, 1201 (10th Cir.2013) ("extending" the recognized Heller exceptions to cover regulations on the carrying of concealed firearms, stating that "n light of our nation's extensive practice of restricting citizens' freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment's protections")." Id at 433

Woollard v. Gallagher, 712 F. 3d 865 - Court of Appeals, 4th Circuit (2013)
"The district court permanently enjoined enforcement of section 5-306(a)(5)(ii) of the Public Safety Article of the Maryland Code, to the extent that it conditions eligibility for a permit to carry, wear, or transport a handgun in public on having "good and substantial reason" to do so. Necessary to the entry of the court's injunction was its trailblazing pronouncement that the Second Amendment right to keep and bear arms for the purpose of self-defense extends outside the home, as well as its determination that such right is impermissibly burdened by Maryland's good-and-substantial-reason requirement. See Woollard v. Sheridan, 863 F.Supp.2d 462 (D.Md.2012). Because we disagree with the court's conclusion that the good-and-substantial-reason requirement cannot pass constitutional muster, we reverse the judgment without needlessly demarcating the reach of the Second Amendment." Id at 868

National Rifle Ass'n v. Bureau of Alcohol, Tobacco, 700 F. 3d 185 - Court of Appeals, 5th Circuit (2012)
"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 .... [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id at 193

National Rifle Ass'n of America, Inc. v. McCraw, 719 F. 3d 338 - Court of Appeals, 5th Circuit (2013)
"For example, the Court said, "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."" Id at 346

Moore v. Madigan, 702 F. 3d 933 - Court of Appeals, 7th Circuit (2012)
"And a state may be able to require "open carry" — that is, require persons who carry a gun in public to carry it in plain view rather than concealed. See District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783; James Bishop, Note, "Hidden or on the Hip: The Right(s) to Carry After Heller," 97 Cornell L.Rev. 907, 920-21 (2012)." Id at 938

US v. Fincher, 538 F. 3d 868 - Court of Appeals, 8th Circuit (2008)
"[T]he 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." Id at 873

Peterson v. Martinez, 707 F. 3d 1197 - Court of Appeals, 10th Circuit (2013)
"With respect to Peterson's claims against the Denver sheriff, we conclude that the carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause." Id at 1201

Heller v. District of Columbia (Heller II), 670 F. 3d 1244 - Court of Appeals, Dist. of Columbia Circuit (2011)
"The Court identified other historical limitations upon the scope of the right protected by the Second Amendment. For example, it noted "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."" Id at 1252

Even through the oral arguments are only a small part of the over all case I was not impressed by the defense.

ConditionThree said:

...States can regulate the method of carry as long as they do not 'foreclose' all means to bear. Both open and concealed carry are the right.

Click to expand...

Not that this is any news to you, but RIGHTS don't involve licensing, mandatory training, etc. It seems Gura (among others) just doesn't get that.

BB62 said:

Not that this is any news to you, but RIGHTS don't involve licensing, mandatory training, etc. It seems Gura (among others) just doesn't get that.

Click to expand...

I agree but we're trying to win here. I doubt the Federal courts are on the edge of their seats just waiting for one lawsuit to claim a right to publicly carry with no strings attached. That will not succeed, yet

press1280 said:

I agree but we're trying to win here. I doubt the Federal courts are on the edge of their seats just waiting for one lawsuit to claim a right to publicly carry with no strings attached. That will not succeed, yet

Click to expand...

It's a good thing then that my Open Carry lawsuit never made a "no strings attached" claim or argument.

California law does not require a license/permit to openly carry a firearm. I included an alternate challenge to California's CCW law just in case the California legislature removed the residency and population restrictions on Open Carry CCWs, an alternative challenge which challenges a license requirement as applied to handguns openly carried (there are no long gun carry permits available in California).

All three bans I am challenging exempt hunters either while hunting or while traveling to or from their hunting expedition. My Open Carry lawsuit does not seek to openly carry everywhere a hunter is exempt from the bans, just those places which do not overlap with other "regulations" such as those for schools, government buildings, youth centers, the grounds of the state capitol, the governors mansion, airports, etc. There are a myriad of special interest groups who are exempt from the unloaded Open Carry bans in addition to hunters.

I've been the subject of a barrage of personal attacks these past five years by opponents of concealed carry who, by the way, would be able to carry their concealed weapons in schools and in most state and local government buildings with a CCW and to which the Sheriff or Police Chief can not prohibit because his power to limit the applicability of where and when a CCW is valid is precluded where there is a statutory exception.

When you watch the oral arguments, take particular note of the discussion of intermediate scrutiny and the states burden of proof under heightened scrutiny. I am the one who submitted evidence and declarations in my Open Carry lawsuit, which I was not required to do. The state did not submit one iota of evidence or even a single declaration, expert or otherwise, in support of the Open Carry bans. It's case rested entirely on the theory that there is no Second Amendment right outside of the home (the states frivolous procedural arguments notwithstanding) until SCOTUS says that there is a Second Amendment right outside the home.

Before the Solicitor General's concession that the "core" Second Amendment right extends beyond the curtilage of one's home, all that was necessary for me to prevail was for the court to conclude that the "core right" included the curtilage of my home.

I win and the state loses on my Second Amendment claim alone. And I was not so foolish to limit my claims to the Second Amendment as did Peruta/Richards (their 14th Amendment claim, such that it is, was not sufficiently argued on appeal to differentiate it from a Second Amendment claim).

In short: Intermediate (or strict) scrutiny plus no evidence from the state to satisfy its burden of proof submitted in the district court equals I win.

People don't have to personally like me but their personal dislike should not extend to opposing my Open Carry lawsuit. And let's face it, once Peruta/Richards are shot down by the en banc court my Open Carry lawsuit will be the last one left standing in California.

OpenCarry.org has created a donations page for my Open Carry lawsuit. Time for folks to put up or shut up -> http://www.opencarry.org/?p=615

California Right To Carry said:

I was wondering how long it would be before someone from CalGuns.nuts trolled one of my posts.

Concealed carry is not a right according to SCOTUS and concealed carry is not a right according to state courts which have upheld prohibitions on concealed carry going back over 200 years. The plaintiffs in Peruta and Richards don't even claim that there is a right to carry concealed. Their argument is, contrary to longstanding precedents, that states can ban Open Carry and having done so must issue concealed carry permits.

Nowhere in the history of the Second Amendment right to keep and bear arms can you cite any decision which held that states can chose concealed carry over Open Carry. That is an invention of the NRA and SAF which two judges on the 9th Circuit Court of Appeals bought hook, line and sinker. Fortunately, a majority of the active judges of the 9th Circuit recognize snake oil when they see it and vacated the Peruta decision.

Only a Kool-Aid drinking fool believes that the en banc court is going to affirm the vacated panel decision in Peruta. Peruta and Richards will lose, they will file cert petitions and their cert petitions will be denied both because concealed carry is not a right and because every Federal circuit has said that concealed carry is not a right.


So tell the class 1) Why are you posting on an Open Carry website and 2) Which six of the eleven judges on the en banc panel are going to affirm the vacated Peruta decision? [video]https://youtu.be/anKfVru1des[/video]

Click to expand...

Good to see that your sense of civility hasn't waned.

To answer you needlessly pointed questions; I am here because i support the practice of practical open carry, and was the first to share my experiences here circa 2004/5. Now that the repeated agitation of our legislature has regulated open carry to areas where there are no people- it is a little quiet.

As to your second question, the court will be divided 7/4. Your assumption that i view the en banc hearing as a success is another one of the reasons why your overtures to advance a lawsuit pro se is a very bad idea. If you cant correctly read me, and jump to these conclusions and get all pissy about it, what then is going to happen if you don't get it right before the court and take a nice fat dump over keep and bear in California?

California Right To Carry said:

This was an unexpected concession by California's Solicitor General during the en banc oral arguments in Peruta v. San Diego / Richards v. Prieto.

We owe a debt to Circuit Judge Carlos Bea who pinned the State down to clearly articulate its position on whether or not the Second Amendment is limited to the home.

This was a huge concession by the State. My Open Carry lawsuit was filed in November of 2011 and the State has never even conceded a right to carry a firearm in the home, let alone in the curtilage of one's home. All I ever needed to prevail in my lawsuit was for the court to conclude that I have a right to carry a loaded firearm on my porch. Now, not only has the State made that concession, it has said that the "core right" extends beyond the curtilage of the home to public places.

The NRA lawyer, as expected, argued that states can ban Open Carry. The SAF/CalGuns lawyer has always made that argument in every SAF concealed carry lawsuit.

View attachment 12594

From my press release:

"Today, June 16, the Solicitor General for the State of California was asked by Circuit Judge Carlos Bea to make it clear that his understanding is that the State’s position is that the Second Amendment “core right” defined in the 2008 US Supreme Court Heller decision can apply outside of the home?

The State of California replied “Yes, with a qualification.” That qualification being that the Second Amendment does not confer the right to carry a handgun concealed especially in cities and towns."

Read more here.

I wrote up my predictions as to how each of the eleven judges are likely to vote on June 8th which was six against Peruta/Richards, one for and the rest undecided. Based on the oral arguments I think it is safe to add two more judges in the against column.

A couple of the judges asked whether or not the two cases should be remanded back to the district court in light of the unloaded Open Carry bans, Gura was vehemently opposed. The NRA lawyer, Paul Clements, acted like he had a three martini lunch before court.

The State indicated that a remand would be appropriate or (worst case) that the court should issue a very narrow decision limiting the issuance of permits to just the plaintiffs and to address the broader question of the scope of the Second Amendment right in a future case. That future case is my Open Carry lawsuit.

A frequently asked question is when will we have a decision? The answer is there is no time limit. It could be weeks, months or years. Barring an unexpected grant of cert by SCOTUS which, in light of the denial of cert in Jackson v. San Francisco is unlikely, I suspect that we will have a decision in three to six months. In light of the denial of cert in Jackson v. San Diego, the plaintiffs were fools not to leap at the chance for their cases to be remanded back to the district court. If the en banc court treats this case as what it is, concealed carry, then Peruta and Richards lose. Given that there is no circuit split on concealed carry there is no reason for SCOTUS to grant cert and that is the end of their lawsuits.

Here is a video of the oral arguments [video]https://youtu.be/anKfVru1des[/video]

Click to expand...

Not really remarkable the state, and, basically everyone at the en banc conceded this. They would be walking right into a split by the court ruling no 2A outside the home. These courts are careful and are playing defense right now to keep this away from SCOTUS. And they can concede the right exists outside the home all day. They're quite fine with allowing the sheriffs total control to reject whoever they want.

Gentlemen, please!

No public display of personal issues and be aware of the forum rules.

Sad when 'we' can't even agree with each other. The anti crowd doesn't eat their own, yet we are so eager to turn on one another.

Carry on

Grapeshot said:

Gentlemen, please!

No public display of personal issues and be aware of the forum rules.

Click to expand...

Grapeshot, I notice that you deleted my post but not ConditionThree's post? How about you set a rule that ConditionThree will not comment on any of my posts and I won't comment on any of his. I am the only one with a lawsuit seeking to restore Open Carry to California. ConditionThree has been trolling my posts going back years.

Not only is ConditionThree a member of CalGuns, a plaintiff in the Richards v. Prieto concealed carry lawsuit, a lawsuit in which its attorney (Alan Gura) has argued that states can ban Open Carry since 2009, ConditionThree has links to CalGuns in his tagline.

Why do you allow members of an organization dedicated to preserving California's Open Carry bans to post on an Open Carry website?

FreeInAZ said:

Sad when 'we' can't even agree with each other. The anti crowd doesn't eat their own, yet we are so eager to turn on one another.

Carry on

Click to expand...

Look at ConditionThree's tagline. He is a member of CalGuns. CalGuns is a plaintiff in Richards v. Prieto, a lawsuit in which its attorney has been arguing since 2009 that states can ban Open Carry.

I have a lawsuit to restore Open Carry to California. ConditionThree and CalGuns opposes my lawsuit because the sole, flawed legal theory behind the CalGuns concealed carry lawsuit is that California can ban Open Carry and having done so it must now issue concealed carry permits.

The name of this website is OpenCarry.org. I think it is sad to allow opponents of Open Carry inside the forum.

California Right To Carry said:

Look at ConditionThree's tagline. He is a member of CalGuns. CalGuns is a plaintiff in Richards v. Prieto, a lawsuit in which its attorney has been arguing since 2009 that states can ban Open Carry.

I have a lawsuit to restore Open Carry to California. ConditionThree and CalGuns opposes my lawsuit because the sole, flawed legal theory behind the CalGuns concealed carry lawsuit is that California can ban Open Carry and having done so it must now issue concealed carry permits.

The name of this website is OpenCarry.org. I think it is sad to allow opponents of Open Carry inside the forum.

Click to expand...

We have long taken the position that even an anti may register and post here IF they remain courteous and stay within the forum rules. Many can't accomplish that. We do not have a closed door policy.

That and it keeps us in practice rebutting them, sharpens our skill sets.

Grapeshot said:

We have long taken the position that even an anti may register and post here IF they remain courteous and stay within the forum rules. Many can't accomplish that. We do not have a closed door policy.

That and it keeps us in practice rebutting them, sharpens our skill sets.

Click to expand...

I think my skills are pretty sharp but how does one rebut a person so far removed from reality that he reads the following to mean that states can ban Open Carry? I am sincere in my question. I've spent my entire adult life in science and engineering and, as a youth, never suffered fools gladly.

How would you respond to ConditionThree and his fellow CalGuns members when they say that states can ban Open 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 (2008) at 2809

"[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons..." Robertson v. Baldwin, 165 US 275 - Supreme Court (1897) at 282.

"In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the "natural right of self-defence" and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right...Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had 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 (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. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. 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. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251..." District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816

"But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons..." Heller dissent at 2851

"I am similarly puzzled by the majority's list, in Part III of its opinion, of provisions that in its view would survive Second Amendment scrutiny. These consist of (1) "prohibitions on carrying concealed weapons"..." Heller dissent at 2869.

Hightower v. City of Boston, 693 F. 3d 61 - Court of Appeals, 1st Circuit (2012)
"Under current Supreme Court precedent, Hightower cannot make out her Second Amendment claim as to the concealed weapon aspect of her revoked license, as she must for her as-applied challenge to succeed. Under our analysis of Heller, as follows, the government may regulate the carrying of concealed weapons outside of the home.
In Heller, the Court explained that "the right secured by the Second Amendment is not unlimited" and noted that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under Second Amendment or state analogues." 128 S.Ct. at 2816. We have interpreted this portion of Heller as stating that "laws prohibiting the carrying of concealed weapons" are an "example[] of `longstanding' restrictions that [are] `presumptively lawful' under the Second Amendment." United States v. Rene E., 583 F.3d 8, 12 (1st Cir.2009) (quoting Heller, 128 S.Ct. at 2816-17 & n. 26); see also Robertson v. Baldwin, 165 U.S. 275, 281-82, 17 S.Ct. 326, 41 L.Ed. 715 (1897) (observing that "the first 10 amendments to the [C]onstitution" protect rights that are "subject to certain well-recognized exceptions" and stating, in dicta, that the Second Amendment right "is not infringed by laws prohibiting the carrying of concealed weapons").[9] Licensing of the carrying of concealed weapons is presumptively lawful, and Hightower makes no serious argument to the contrary." Id at 73-74.

Kachalsky v. County of Westchester, 701 F. 3d 81 - Court of Appeals, 2nd Circuit (2012)
"Notably, Chandler and Reid conflict with Plaintiffs' position, at least in part. Plaintiffs contend that a state may choose to ban open carrying so long as concealed carrying is permitted. But both Chandler and Reid suggest that open carrying must be permitted. The Reid court explained:
Under the provision of our constitution, we incline to the opinion that the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence.
1840 WL 229, at *5; see also Chandler, 1850 WL 3838, at *1." Id at [fn 13]

Drake v. Filko, 724 F. 3d 426 - Court of Appeals, 3rd Circuit (2013)
"New Jersey's longstanding handgun permitting schema is not an anomaly. Many recent judicial opinions have discussed historical laws regulating or prohibiting the carrying of weapons in public. See, e.g., Peterson v. Martinez, 707 F.3d 433*433 1197, 1201 (10th Cir.2013) ("extending" the recognized Heller exceptions to cover regulations on the carrying of concealed firearms, stating that "n light of our nation's extensive practice of restricting citizens' freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment's protections")." Id at 433

Woollard v. Gallagher, 712 F. 3d 865 - Court of Appeals, 4th Circuit (2013)
"The district court permanently enjoined enforcement of section 5-306(a)(5)(ii) of the Public Safety Article of the Maryland Code, to the extent that it conditions eligibility for a permit to carry, wear, or transport a handgun in public on having "good and substantial reason" to do so. Necessary to the entry of the court's injunction was its trailblazing pronouncement that the Second Amendment right to keep and bear arms for the purpose of self-defense extends outside the home, as well as its determination that such right is impermissibly burdened by Maryland's good-and-substantial-reason requirement. See Woollard v. Sheridan, 863 F.Supp.2d 462 (D.Md.2012). Because we disagree with the court's conclusion that the good-and-substantial-reason requirement cannot pass constitutional muster, we reverse the judgment without needlessly demarcating the reach of the Second Amendment." Id at 868

National Rifle Ass'n v. Bureau of Alcohol, Tobacco, 700 F. 3d 185 - Court of Appeals, 5th Circuit (2012)
"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 .... [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id at 193

National Rifle Ass'n of America, Inc. v. McCraw, 719 F. 3d 338 - Court of Appeals, 5th Circuit (2013)
"For example, the Court said, "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."" Id at 346

Moore v. Madigan, 702 F. 3d 933 - Court of Appeals, 7th Circuit (2012)
"And a state may be able to require "open carry" — that is, require persons who carry a gun in public to carry it in plain view rather than concealed. See District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783; James Bishop, Note, "Hidden or on the Hip: The Right(s) to Carry After Heller," 97 Cornell L.Rev. 907, 920-21 (2012)." Id at 938

US v. Fincher, 538 F. 3d 868 - Court of Appeals, 8th Circuit (2008)
"[T]he 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." Id at 873

Peterson v. Martinez, 707 F. 3d 1197 - Court of Appeals, 10th Circuit (2013)
"With respect to Peterson's claims against the Denver sheriff, we conclude that the carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause." Id at 1201

Heller v. District of Columbia (Heller II), 670 F. 3d 1244 - Court of Appeals, Dist. of Columbia Circuit (2011)
"The Court identified other historical limitations upon the scope of the right protected by the Second Amendment. For example, it noted "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."" Id at 1252



This is not an exhaustive list and certainly does not include the hundreds of appeals filed and lost challenging convictions for carrying weapons concealed.

California Right To Carry said:

I think my skills are pretty sharp but how does one rebut a person so far removed from reality that he reads the following to mean that states can ban Open Carry? I am sincere in my question. I've spent my entire adult life in science and engineering and, as a youth, never suffered fools gladly.

How would you respond to ConditionThree and his fellow CalGuns members when they say that states can ban Open Carry?

--snipped for brevity--

This is not an exhaustive list and certainly does not include the hundreds of appeals filed and lost challenging convictions for carrying weapons concealed.

Click to expand...

(12) NO BASHING OF OTHER GUN RIGHTS ORGANIZATIONS: Regardless of how convinced you are that another gun rights organization is not doing their job, this is not the place to air those concerns unless they are specifically related to an anti-open carry position taken by that organization. All other rants against other gun rights groups will be deleted or the thread locked.

Still we must maintain the high road and avoid name calling, insults, etc. I am reminded of the phrase, "My learned colleague does not know whereof he speaks."

Grapeshot said:

(12) NO BASHING OF OTHER GUN RIGHTS ORGANIZATIONS: Regardless of how convinced you are that another gun rights organization is not doing their job, this is not the place to air those concerns unless they are specifically related to an anti-open carry position taken by that organization. All other rants against other gun rights groups will be deleted or the thread locked.

Still we must maintain the high road and avoid name calling, insults, etc. I am reminded of the phrase, "My learned colleague does not know whereof he speaks."

Click to expand...

I do not understand. Certainly you are aware that the CalGuns Foundation is a plaintiff in Richards v. Prieto and it is the stated position of the CalGuns Foundation, in pretty much every single brief that it filed, that states can ban Open Carry?

Every "gun rights" organization which is a plaintiff or Amicus in support of Richards v. Prieto and/or Peruta v. San Diego has taken an anti-Open Carry position.

I am the one being bashed in this thread by a member of an anti-Open Carry organization - CalGuns.

I am the one who has been fighting a legal battle in Federal court since November of 2011 to restore the Second Amendment Open Carry right to Californians.

California Right To Carry said:

I do not understand. Certainly you are aware that the CalGuns Foundation is a plaintiff in Richards v. Prieto and it is the stated position of the CalGuns Foundation, in pretty much every single brief that it filed, that states can ban Open Carry?

Every "gun rights" organization which is a plaintiff or Amicus in support of Richards v. Prieto and/or Peruta v. San Diego has taken an anti-Open Carry position.

I am the one being bashed in this thread by a member of an anti-Open Carry organization - CalGuns.

I am the one who has been fighting a legal battle in Federal court since November of 2011 to restore the Second Amendment Open Carry right to Californians.

Click to expand...

They (SAF & NRA) have continually stated they are not claiming a CCW right. Although their suits are pointed toward the permit probably because they believe it's an easier pill for the courts and those states to swallow, I don't see it as anti-OC. Further, I believe the CCW permit would allow many more places where one could carry than if the clock were turned back to 1967 pre-OC ban.
As an example, the IL legislature created a CCW scheme in response to Moore. That was obviously the easier pill for them to swallow. Now, an OC challenge in IL would be interesting......force the court into OC or say that CCW does indeed satisfy the right.

press1280 said:

They (SAF & NRA) have continually stated they are not claiming a CCW right. Although their suits are pointed toward the permit probably because they believe it's an easier pill for the courts and those states to swallow, I don't see it as anti-OC. Further, I believe the CCW permit would allow many more places where one could carry than if the clock were turned back to 1967 pre-OC ban.
As an example, the IL legislature created a CCW scheme in response to Moore. That was obviously the easier pill for them to swallow. Now, an OC challenge in IL would be interesting......force the court into OC or say that CCW does indeed satisfy the right.

Click to expand...

The NRA, SAF, and CalGuns has repeatedly stated in their briefs and in oral arguments that California can ban Open Carry, that's all we need to know. Their motivations, even if they were moral ones are irrelevant to their opposition to Open Carry, their goal is to preserve California's Open Carry bans (and banning Open Carry in favor of concealed carry is not a moral goal).

Here is the link to the SAF, CalGuns filings in Richards v. Prieto ->http://michellawyers.com/guncasetracker/richardsvprieto/
Here is the link to the CRPA (NRA) filings in Peruta v. San Diego -> http://michellawyers.com/guncasetracker/perutavsandiego/

The intellectually lazy won't read the briefs. The apologists will search for "Yes, but..." passages.

Honestly folks, isn't there anyone at OpenCarry.org who supports Open 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 (2008) at 2809