October 29, 2011

On December 15 a Federal Civil Rights Lawsuit will be filed seeking an injunction against a California law that was passed in 1967 which makes it a crime to openly carry a loaded firearm. Ironically, AB 144 recently passed by the California Legislature and signed into law by Governor Jerry Brown making it a crime to openly carry even an unloaded handgun has greatly simplified the lawsuit.

Under a 9th Circuit Court of Appeals decision in May of 2011, it would have been necessary to show that the California law, which requires openly carried firearms to be unloaded until one was in grave and immediate danger, was a “substantial burden.” With the passage of AB 144, this will no longer be necessary.

The California Legislature has basically created a mirror image of the 2008 landmark decision by the United States Supreme Court in which it held that the individual has the right to openly carry a loaded firearm for the purpose of self-defense; except in certain “sensitive” places such as schools and government buildings. The High Court held that a law banning handguns, even though it exempted long guns (rifles and shotguns) was unconstitutional.

A past federal failed because Federal judges cited the exception to California law for openly carrying a loaded handgun when one was in grave, immediate danger. Will AB 144, there is no exception and therefore a very good chance of success to overturn the law.

The lawsuit will be brought in the Federal Central District of California by CaliforniaRightToCarry.org.

Quoting from the United States Supreme Court decision, District of Columbia v Heller (2008)

“Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defense, would be clearly unconstitutional”). It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”

California law requires that long guns be kept unloaded, something which the United States Supreme Court also held to be unconstitutional in the D.C. v. Heller case.

California Right To Carry is a nonprofit association of individuals raising funds to bring a lawsuit to restore our right to Openly Carry a loaded firearm in California.