Charles Nichols' California-based lawsuit challenges the state's severe restrictions (basically a ban in most locations) on open carry of firearms for self-defense (We all know that the Ninth Circuit ruled there is no right to CCW, and that decsion was upheld by SCOTUS not granting cert in Peruta and other CCW "good cause" cases from other Circuits). The details are all available at Mr. Nichols' website: http://blog.californiarighttocarry.org/?page_id=6922. All the documents from all the years of litigation are there.

I thought it might be clearer to have a separate thread re Nichols because I've been posting updates about it in the Young v. Hawaii thread because it appeared that they might be heard simultaneously in Pasadena the first week in November, but that is no longer the case, or possibly heard even earlier in the final Ninth Circuit hearings in Hawaii in October, but that didn't happen either. Yesterday, Sunday, as usual, the Ninth Circuit posted the upcoming oral arguments calendar for 10 weeks out, the week of November 6-9, when Mr. Nichols believed there was a chance his case would be scheduled to be heard in Pasadena. Not so. It is still possible that it could be scheduled for those dates prior to the end of this week. If not, Mr. Nichols has two pending requests that have not been acted upon yet: 1. That his case initially be heard by a full en banc panel rather than the ordinary three judge panel, and 2. That his case be heard simultaneously with Young, wherever and whenever that is scheduled. The next Ninth Circuit orals in Hawaii are in February of 2018, so that would be the earliest date for that option to occur.

I guess I could have just written "the news is: no news", but I'm kinda into the details (suspense? drama?). If Nichols (and/or Young) were to miraculously "win" (certainly not in the Ninth, but only on cert grant and supporting decision from SCOTUS some day way in the future) then even Hawaii would have to change their laws in some minuscule way in order to try an remain unconstitutionally infringing our rights while pretending that they aren't (you know, like Hawaii has "may issue" CCW, just not one single person in the entire state "happens" to qualify, but otherwise there is no infringement on the right to bear arms  ).

Mr. Nichols is handling his lawsuit on his own (pro per), and has a Go Fund Me page for any would like to donate to his cause. https://www.gofundme.com/help-charles-nichols-fight-for-2a

Edit: As per a note from Mr. Nichols: "My appeal is Charles Nichols v. Edmund Brown, Jr., et al and will remain so named should it go to SCOTUS." The "et al." included former AG Kamala Harris (now Senator Harris), and now also includes the current AG Xavier Becerra, but governor Brown is still listed as first defendant.

Here is today's update by Charles Nichols on the Nichols v Brown open carry, etc. case that will be heard on the 15th in Pasadena, three days after Young is heard here in Hawaii:

Well, we now have a pretty good idea as to why I made it to oral argument. The oral argument calendar now tells us who the three judges are who are assigned to my appeal.

Before: BERZON, and BYBEE, Circuit Judges, and GLEASON (Alaska), District Judge

Charles Nichols v. Edmund Brown, Jr. - Charles Nichols appeals pro se from the district court's judgment on the pleadings in his 42 U.S.C. § 1983 action challenging a set of California state laws regulating the open carry of firearms in public places.

Judge Berzon was on the Mehl v. Blanas concealed carry panel in which she said in questioning the attorney general's position that the Second Amendment right is confined to the home "I don't see how. if you buy the historical and other accounts in Heller, which we are of course obliged to do, you can say that?"

The state's attorney arguing on behalf of former Attorney General Harris in Mehl v. Blanas had said that the Second Amendment is limited to the home and he didn't think the historical analysis was "deeply analytical" to which Judge Berzon quipped "The [Heller] opinion wasn't deeply analytical or your position (the Attorney General's) isn't deeply analytical?

In Teixeira v. County of Alameda, Judge Berzon wrote an extensive decision, joined by Judge Bybee, in which she held that the Second Amendment is a right to keep and bear arms but did not a create "[A] commercial entitlement to sell arms if the right of the people to obtain and bear arms was not compromised."

In my California #OpenCarry appeal the state's attorney representing Governor Brown and Attorney General Becerra argues that the historical analysis of the Second Amendment found in Heller and McDonald is wrong and that the court should conduct its own historical analysis and come to the opposite conclusion of that of the US Supreme Court.

I don't see either Judge Berzon or Judge Bybee publishing a decision in which they say the US Supreme Court was mistaken. Nor do I see them contradicting their own historical analysis from Teixeira.

I conducted a quick case law search on Judge Gleason and the Second Amendment but didn't find anything but given she is an Obama appointee, I assume she won't be on my side of things.

In any event, I only need two judges to prevail.

Judge Berzon's reputation as a defender of the Fourth Amendment precedes her and I don't see Judge Bybee creating an automatic exception to the warrant requirement for firearms especially since the US Supreme Court has already said that there isn't one, so this is encouraging for my Fourth Amendment claim as well.

https://www.facebook.com/pg/CaliforniaRightToCarry/posts/

Reminder: Tomorrow, Thursday, Feb. 15, 2018 the Ninth Circuit Court of Appeals oral arguments will be held for the "open carry" Nichols v. Brown case at 9 AM in Pasadena (7 AM Hawaii time). Here is the streaming video live link:

https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000012997

Mr. Nichols's case is broader and more comprehensive than Young, and Mr. Nichols appears pro se (arguing for himself without an attorney). His case, like the Young case, has been in process for six years now.

All the documents of his case, as well as his commentary are found at:

http://blog.californiarighttocarry.org/?page_id=6922

Here is the first paragraph of his summary of his lawsuit:

What Does my California Open Carry Lawsuit Seek to Achieve?

The simple answer is my lawsuit seeks to strike down California’s bans on the carrying of firearms openly for the purpose of self-defense:

1. In the curtilage of our homes (which for nearly everyone in the state means all of our residential property).
2. In and/on our motor vehicles including in and/or on any attached camper or trailer regardless of whether or not they are used as a residence.
3. In non-sensitive public places.

* * * * *

Give 'em hell Charles!

Agreed....give em hell

Sent from my SM-G950U using Tapatalk

I'll post the link to the archived video when it gets posted on the Ninth Circuit site.

I don't take it as a "good sign" when a judge closes her laptop before the appellant finishes speaking.  One can never tell for sure from oral arguments what will happen with the actual decision, but the questions from the judges certainly tended to go along lines that they didn't think there was any basis, in Heller or elsewhere re SCOTUS, to claim a right to bear arms (openly or concealed) outside the home. So according to that view, "the right to... bear arms" means "to carry upon the person for the purpose of self-defense in case of confrontation" INSIDE YOUR HOUSE!

Yeah, that makes sense.

  

It was truly sad, and frightening, to see judges at the Federal Circuit Court of Appeals level (just one step below SCOTUS) be so ignorant not only of the arguments and supporting evidence (which was vast) submitted by Mr. Nichols, but also of the judicial precedents and historical analysis as written by other courts, especially SCOTUS in Heller. Mr. Nichols explains his hypothesis how such could be the case below.

The video of the Nichols v Brown portion the proceedings in now posted:



Mr. Nichols has a number of comments re the experience on his Facebook page: https://www.facebook.com/pg/CaliforniaRightToCarry/posts/

Among them: 

 It is clear now why I was granted oral argument. The judges wanted me to make a concession fatal to my appeal. I didn't.

[Question: What do you mean concession?]

 A concession made during oral argument by either side can result in a loss despite a technical win in the briefs.

[Comment: It seems the state lawyer did just that.]

He did.

 I did not make a slip but the state's attorney did. Not that this panel is going to care.

It was obvious that the judges did not read the briefs. I have long suspected that they never do. I suspect that their clerks prepare a memo for them to read. I don't think this panel even read the memo.

[Comment: That one judge was clueless as to your standing to challenge the search. Shame on her.]

Particularly so since it was stated in my Complaint, I lodged a video with the court and the state's attorney filed a letter with the court conceding that I have standing.

[Comment: Thank you sir. That looked like torture to me.]

It was surreal.

[Question: So what is the next step?]

The next step is we wait for a decision. It could come in two days or not for five years.

Charles Nichols marked time today on his Facebook page:

It has been 2300 days since my California Open Carry lawsuit was filed!

* * * * *
Likely have to wait another 300 until the Ninth panel decision. Then likely an appeal for en banc and/or full court. Then appeal for cert to SCOTUS. I'm guessing he'll break 3,000 easily... but who's counting?