Beware the self-described astronaut/lawyers
You may not be wrong, maybe he does suck. Problem is, no one else is stepping up to the plate to challenge any OC laws (except Norman in FL). We've had quite a long while since McDonald was handed down and many losses and still they won't challenge any OC laws. I merely point out his brief carries more weight than the state's which is mostly fiction.
Don't know what an infringement test is; perhaps a generic term he's using?
In my opening brief I suggested that the Court adopt the corollary to the one-step inquiry it used in Peruta (en banc). If the law infringes on the Second Amendment then it is unconstitutional because the Second Amendment says the right shall not be infringed. What the astronaut/lawyer omits is that I argued that the district court was bound by the two-step inquiry adopted by the 9th circuit in Chovan which is the framework adopted by most of the circuits including the 7th which struck down the bans on carrying loaded and unloaded firearms in incorporated cities, towns and villages.
Under the two-step inquiry the court first decides whether or not the law implicates conduct protected by the Second Amendment, if it does then it applies the "appropriate" level of scrutiny (intermediate or strict) depending upon the severity of the burden. The state's attorney characterized the laws at issue in my case as bans, as did I. The state's argument in the district court wasn't that my lawsuit conflicted in any way with the Second Amendment right defined in Heller. The state's argument was that the Open Carry right defined in Heller does not apply to the states until SCOTUS decides an Open Carry case and applies the Open Carry right defined in Heller to the states. I argued that SCOTUS did exactly that in McDonald when it explicitly held that the right defined in Heller applies against the states AND when it held that the Second Amendment applies in full against the states.
I made the same argument on appeal in my Opening Brief.
Instead, the district court applied the divided three judge panel decision in Peruta entirely on its own. The state did not cite Peruta for obvious reasons and I did not cite Peruta for obvious reasons, not the least of which the district court was bound by the Chovan decision and the Peruta three judge panel decision conflicted with Chovan.
The state changed its argument on appeal to now claim that there is no Open Carry right, at all. The state's argument isn't "mostly fiction" it is fantasy. Moreover, were the court of appeals to adopt that fantasy the judges know that they would be creating a SCOTUS Rule 10 split with every circuit and state court of last resort. Under its own binding precedents the 9th circuit says it does not lightly create circuit splits and does so rarely and only when there are substantial reasons for doing so.
Did you notice that in its Answering Brief the state never gave any reason, let alone a substantial one, as to why the Court in my case should create a circuit split?
Did you notice that it is the state's attorney who asked for a remand (not me), without citing any precedent warranting a remand and did so under the pretext that it should be allowed to submit evidence in support of the Open Carry bans which it failed to submit in the district court.
Intermediate scrutiny cuts both ways. If the Court in my appeal decides that the Second Amendment applies even one inch outside the door to my home then the burden shifts to the state to justify the bans under heightened scrutiny. The state's attorney made no attempt to justify the bans in the district court. There was not even a single declaration filed by the state, expert or otherwise, in support of the bans. Under Intermediate Scrutiny, the state loses.
But let us assume that the Court in my case holds that the Second Amendment is limited to the interior of one's home. The Court must still look at the reasons given by the legislature for enacting the bans to see if they were arbitrary or irrational. Under Rational Basis review the court is also required to determine whether or not the reasons given for enacting the bans are still valid today.
The reason for enacting the 1967 Black Panther Loaded Open Carry ban was racial animus which, thanks to the way I crafted my Opening Brief, the court can only evaluate the 1967 ban under rational basis. Normally, racial animus would elevate the level of scrutiny to strict scrutiny. That isn't allowed here in my appeal. The court, after deciding the constitutional questions, will be forced to either hold that racial animus fails the rational basis test or racial animus is not irrational.
The Unloaded Open Carry bans present a multitude of problems. Putting aside the legislative intent to "close the loopholes" in the 1967 Black Panther ban, the legislative finding of the California legislature was that the bans are necessary not because people who openly carry unloaded firearms are a danger to the public but because police officers might shoot and kill people and innocent bystanders.
The Fourth Amendment prohibits police from doing this even if firearms are loaded and carried illegally.
And of course if the Court in my case were to uphold that justification, it would create a SCOTUS Rule 10 split with every circuit which has ever published a decision on qualified immunity and police use of deadly force.
The state's argument on appeal is that the laws I challenge can be unconstitutional in every application but if there is just one application in which the law is Constitutional then the law survives (the Salerno Test). The state does not claim that the laws are constitutional under most circumstances or that the laws have a plainly legitimate sweep. SCOTUS has already rejected the Salerno Test in every legal argument I made in the district court and made again on appeal, as has the 9th circuit, which I pointed out in my Reply Brief.
Six years ago this May, I announced my decision to file my lawsuit. I said at the time, and have been saying ever since, for me to lose the 9th circuit court of appeals would have to issue a decision which conflicts with Heller and McDonald (now Baldwin and Caetano as well) and to overturn its own binding precedents. To that I have added SCOTUS Rule 10 splits from other circuits and state courts of last resort which have arisen since my lawsuit was first filed.
Fortunately,
Baker v. Kealoha was tossed without creating any harm. The only case which remains is
Young v. Hawaii (which is stayed pending the Mandate in Baker). Unfortunately for Mr. Young, his attorney screwed up his appeal. The only thing Mr. Young had standing to challenge on appeal was the denial of his license to carry a handgun in public (openly or concealed). Concealed carry is off the table now because of Peruta (en banc) but instead of asking that Mr. Young be granted a license to (openly carry) a handgun on appeal, his attorney asked the court of appeals for an Order that the law be rewritten, the one thing every 1st year law student knows a court cannot do.
Given that the only relief that Mr. Young asks for on appeal is relief either forfeited by not raising it in the district court or relief which the court cannot grant, Young's appeal will be tossed as well. The only question there is whether or not his case is remanded back to the district court for a do-over.
press1280, unless your purpose is to rattle the self-described astronaut/lawyer's cage until he starts throwing more feces around, if you have any questions about my lawsuit then I suggest that you read the briefs in my appeal. They are at my website
here as are the Excerpts of Record and addendum filed on both sides.
The only thing you are going to get from my opponents here is their feces thrown your way. :banana: