Open carry wary

California's federal judiciary has been targeted by a hail of recent gun suits. These Second Amendment volleys aim to relax the state's open- and concealed-carry weapons laws. The U.S. Supreme Court's 2008 recognition of the public's right to bear arms at home unleashed conflicting judicial perspectives via its focal statement: "some think that the Second Amendment is outmoded in a society where ... gun violence is a serious problem. ... [But] it is not the role of this Court to pronounce the Second Amendment extinct." District of Columbia v. Heller, 554 U.S. 570.

Perhaps the best evidence of the legal rationale for gun control springs from the Heller court's associated caveat: "There seems to us no doubt ... that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment's right of free speech was not."

Our country is remarkably divided concerning the contours of effective gun control. According to the national Law Center to Prevent Gun Violence, six states (including California) prohibit handgun open-carry. Fifteen states allow handgun open-carry, but require a permit. Seven states (including California) prohibit long gun open-carry. Six other states restrict, but do not prohibit long gun open-carry. See smartgunlaws.org.

Another prominent example of this divide appears in a brief filed in the en banc decision in the consolidated class action lawsuits against the San Diego and Yolo County sheriffs. Peruta v. County of San Diego, 824 F.3d 919 (9th Cir., 2016). The amici are a coalition of groups that represent those more likely than average to become victims of armed violence - including women and members of the LGBT community. Per their provocative articulation, filed in support of relaxing California's gun control restrictions: "We wish to dispel the misleading and insulting caricature that supporters of Second Amendment rights are either tobacco-chewing, gap-toothed, camouflage-wearing rednecks or militia posers who are morbidly fascinated with firepower. The Supreme Court held in [2010, citations omitted] that the 14th Amendment recognized in 1868 the need for then-recently emancipated black citizens in the South to bear arms for self-defense against the Klan and others who preyed upon African-Americans on the basis of twisted notions about white-male supremacy. A century and a half later, it is still the case that some groups have a particularly acute need for armed self-defense."

A 2012 amendment to the California Penal Code prohibited open-carry - which was previously permitted as long as the weapon was unloaded. The Penal Code now authorizes concealed-carry only for those applicants who demonstrate "good moral character [and] good cause exists for issuance of the license." Sections 26350(a) and 26170(a).

California's 58 county sheriffs each have the discretion to define "good cause." The larger urban counties typically deny a concealed weapons permit. Rural counties typically grant such applications. The latter counties do not require applicants to justify any particular need. But the majority of California's population is nevertheless unable to satisfy the local county sheriff's discretionary licensing decision. Perhaps the best example is the Los Angeles County policy. A federal lawsuit filed last month targets the requirement that L.A. County residents must demonstrate "convincing evidence of a clear and present danger."

My June 21 Daily Journal op-ed concluded with "the fundamental question ... [whether] should we be content with passively tolerating ... preventable mayhem." A Sacramento lawyer's email response offered the specious argument that his sheriff has issued 8,000 concealed-carry permits; that there have been no mass shootings in Sacramento County; and therefore, widely available concealed weapons would solve California's gun violence. Such is the problem with using a negative to prove a positive.

To more ably bolster his argument, one could muster like cannon fodder from the four dissenting judges in Peruta: "The Second Amendment is not a 'second-class' constitutional guarantee. ... There is simply no evidence in the record showing that establishing a licensing regime that allows trained law-abiding citizens to carry concealed firearms in public results in an increase in gun violence. Indeed, the only evidence in the record shows the exact opposite. ... California law arbitrarily allows its counties to set forth different standards for obtaining a concealed carry license without any reasonable or rational explanation for the differences." This concealed weapons licensing case is now ripe for U.S. Supreme Court review - although press reports suggest that it will not be appealed.

The plaintiffs therein had invited the 9th U.S. Circuit Court of Appeals to consider the related open-carry option. But as the majority opinion responded: "We do not reach the question whether the Second Amendment protects some ability to carry firearms in public, such as open carry. That question was left open by the Supreme Court in Heller."

The open-carry case filed in the L.A. federal court will take several years to become ripe for U.S. Supreme Court review. It is one of two such cases now pending in California's federal courts. In the other case, the opening appellate brief to be filed in November by the unsuccessful trial court plaintiff will seek to strike down California's open-carry prohibition, in favor of expanding open-carry to - residential property just outside of the home owner's residence; and, motor vehicles; and, all non-sensitive public spaces. See Nichols v. Brown, California Right To Carry (blog).

Those in special need of protection can make their case for a concealed-carry permit with their local country sheriff. But one can readily conjure a populist rationale for debunking open-carry advocacy from baseball's legendary philosopher Yogi Berra: "You can observe a lot just by watching." Assume you are one of the following observers - a police officer, watching numerous individuals on your beat, openly carrying firearms; a parent, pushing your baby stroller in a crowded mall, watching others who are also strolling with their long guns strapped to their backs; a university educator, watching armed students on a campus in the grips of a heated debate; a bar room patron, overhearing chest-thumping open-carry bravado; a couple or family, watching openly armed neighbors or strangers approaching.

We live in an era when the rhetoric of an increasing percentage of the population is increasingly antagonistic. Consider the likely impact of laws or legal decisions that would soften California's open-carry weapons restriction, especially for handguns. The dark side of Yogi Berra's observe-by-watching admonition would then become painfully evident.