Join Date: November 27, 2012
Folks, don't think this case presents us with a hero who was felled by a broken system. This case was bungled from its inception, and the plaintiffs played a dangerous game of brinksmanship with our rights.
Gray Peterson, CalGuns, SAF, Gura are part of a group that favors concealed carry over open carry. In this case, they deliberately withheld the open carry question from the arguments in an attempt to force the court to consider and grant only concealed carry. If that gambit works, great, but everyone who knew better told Gray and CalGuns that outright omitting an entirely satisfactory avenue of relief from would give the court an easy path to denial.
It is basic case preparation and legal drafting that every acceptable remedy be included in a claim. If the court doesn't grant you want you really want, at least the court has a "Plan B" which it can grant and give you some sort of relief. Here, the court was presented with "give me a concealed carry permit via reciprocity" or nothing. No attempt was made to bring Denver into the case or to put their horrible open carry law on the table, even though we gun owners would want open carry in Denver. No, Gray wanted a permit, and he wanted concealed carry, so he omitted the entire open carry avenue of relief from the case, and the court hung him with it. Read the opinion. It's an outright drubbing.
Despite admonishment from people whose opinions should be respected and considered, Gray and CalGuns went off half-cocked, were utterly destroyed in battle, and have given caselaw, gun owners and the firearms bar this utterly devastating precedent.
Here's how the Peterson/Gura/CalGuns/SAF argument works:
1. Plaintiffs contend that that there is a fundamental right to carry handguns in public, and though a state may regulate open or concealed carrying of handguns, it cannot ban both. [Note: right out of the box, they're hanging open carry out to dry with an incorrect argument. Open carry is always the unregulated right.]
2. Eww, open carry, we don't want people doing that, do we? No open carry, please. We won't challenge any open carry bans you have or any permit schemes that also extend to open carry.
3. Since we don't get open carry, you can't ban both, so we get concealed carry.
4. Since concealed carry requires a permit, we get one of those, too.
That's brinksmanship with a bad argument. It's a huge game of chicken with the court, and it lost in a rout in the 10th Circuit, giving the gun rights movement a huge and enduring mountain to move in all subsequent litigation.
The argument to each and every court should simply be:
1. People have a right to keep and bear arms.
2. This right extends outside the home.
3. The right to keep and bear arms outside the home, like all rights, must be free and untaxed, without prior application or permission.
4. If a jurisdiction chooses to license one form of carrying, the other must therefore be free and unencumbered.
5. Your Honor, in this jurisdiction, which is the licensed right, and which is the free and unencumbered right?
6. There is no #6. Counsel thanks the court for its consideration, sits down, and shuts up.
Despite exhortation to include it, that argument was nowhere present in Peterson's case, because that group expressly does not favor open carry. They went all in on a concealed-carry permit scheme, and the court hammered them with the avenue of relief that was patently absent from the claim.
This spectacular loss was entirely predicted, and it's difficult to see Gray Peterson and the cavalier CalGuns bunch as anything but a net enemy of gun rights.
Gray and CalGuns shouldn't get to play games with our gun rights, yet there they are, leaving a minefield of bad caselaw for those of us in the rest of the country.
To those of you who don't follow this regularly, CAlGuns/SAF and Gura lose a lot of cases. Gura has some notable wins, so he's able to keep spirits up and his image in good order with the fans, but if you listen to his orals, he regularly says some very distressing things to courts.
Methods and strategy need to improve. It's to the point where the NRA and other firearms law individuals and organizations are going to have to consider filing amici briefs against CalGuns/SAF/Gura.
Last edited by smoking357; February 24, 2013 at 09:11 AM.