Prohibitory laws vs Regulatory laws
Now that concealed carry has gone down in flames in the 9th Circuit the haters just gotta be hating my California Open Carry lawsuit not forgetting the guy who filed it of course. :lol:
As usual, we have all of these "experts" and tinfoil hat wearing conspiracy nut-jobs predicting the demise of my appeal on the various forums for various reasons.
A couple of them have pointed to the concurrence which said that it would apply intermediate scrutiny to the California concealed carry statute.
"I concur fully in the majority opinion. I write separately
only to state that, even if we assume that the Second
Amendment applied to the carrying of concealed weapons in
public, the provisions at issue would be constitutional. Three
of our sister circuits have upheld similar restrictions under
intermediate scrutiny. Such restrictions strike a permissible
balance between “granting handgun permits to those persons
known to be in need of self-protection and precluding a
dangerous proliferation of handguns on the streets.”
There are so many reasons why that does not apply to Open Carry but let us assume for the sake of argument that those who wish me to fail or correct and that whatever panel of judges assigned to my appeal would be inclined to apply intermediate scrutiny. They cannot under the prior precedents which are binding on any three judge panel and precedents that an en banc panel would have to overrule in order to apply a watered down version of intermediate scrutiny to my appeal.
The insurmountable obstacle faced by the eventual panel assigned to my case is that unlike the CCW statute, which is a regulatory statute, the bans I am challenging are just that bans (known as prohibitory laws). Even the state's attorney referred to them as bans. Given that the laws I am challenging are prohibitory laws, there is no "good cause" or "good moral character" provisions which can be satisfied in order to (for the purpose of self-defense): openly carry a loaded firearm even one inch outside of the door to our homes in incorporated cities and in unincorporated county territory where the discharge of a firearm is prohibited, to openly carry an unloaded handgun in the same prohibited places, or to openly carry an unloaded long gun in an incorporated city outside of a motor vehicle. And, of course nobody who lives in a county with 200,000 or more people, regardless of his satisfying all of the requirements under the CCW statutes, can obtain a license to openly carry a handgun and California does not require a license to openly carry a long gun. If you are in a place which does not require permission to possess a firearm, such as on the grounds of a school, then the open carry of a long gun is legal without a license as I have just described.
In the 9th Circuit, even a ban on foie gras is subject to strict scrutiny.
For me to lose my Second Amendment challenge, the court of appeals will have to conclude that the Second Amendment does not extend even one inch outside the doors of our homes.
Which would in turn give me the SCOTUS Rule 10 splits that none of the concealed carry cases have and whichever judges are assigned to my appeal will know this because I will have said so in my Opening Brief.
P.S. Would someone tell "wolfwood" to stop lying about me? I never asked him to represent someone in San Diego for free or otherwise in an Open Carry case. I don't even know anyone in San Diego. I told him once in an aside to one of the endless questions he asked me two or three years ago that my original strategy was to hire a lawyer and to file an Open Carry lawsuit in each of California's Federal districts but as I could not find a competent lawyer or plaintiffs, it never panned out (and it is too late to do so today if you are curious).
Also, he looks particularly foolish presenting himself as a qualified lawyer and then asking questions on the forums which every third year law student knows the answer to. Perhaps it is because he is a self-described vegetarian, Californian Buddhist with an apparent fascination with switch blades and other exotic knives coupled with an insatiable need to be liked by the concealed carry trolls.
I don't know and more importantly, I don't care what his flaws are. The court of appeals is going to b*tch slap his two cases out of Hawaii and it is just a matter of time before he loses his second machine-gun case. Why on earth anyone would bring a machine-gun case when we haven't even solidified a right to carry so much as a loaded or unloaded flintlock in public (other than in the 7th Circuit) is beyond me.
But then I am not a self-described vegetarian, Californian Buddhist with an apparent fascination with switch blades and other exotic knives coupled with an insatiable need to be liked by the concealed carry trolls who doesn't know answers to legal questions which any third year law student should know.
