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Old September 1, 2012, 04:03 AM   #34
Charles Nichols
Junior member
Join Date: April 23, 2012
Posts: 20
maestro pistolero, first of all the law does not "allow" anything. Under our legal system, everything is legal which is not prohibited and that which is prohibited must meet certain levels of judicial scrutiny to pass constitutional muster depending upon the prohibition.

Whether that is factually true others can debate but that is the fiction our courts operate under.

The recent California Appellate Court decision I cited in my earlier post didn't say anything new about the justification for prohibiting concealed carry that the California Courts haven't been saying for over 100 years but it bears repeating:

"The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon. In light of this policy, the question whether a particular weapon was concealed should be considered from the point of view of one approaching the location of the weapon, and the intent of the defendant as to concealment should not be considered, since a defendant's innocent intent does not make a concealed weapon any more visible." - People v. Mitchell, Cal: Court of Appeal, 4th Appellate Dist., 1st Div. 2012
Many, perhaps most, California Courts have simply said that in the interest of "public safety" weapons must be carried openly.

Another fiction our courts operate on is that of binding precedent. Although 200 years of bad precedent does not mean those precedents are correct, if one wants to make new law then one must make an argument as to why those precedents were wrongly decided.

Unable to make the case that nearly two centuries of decisions upholding prohibitions on concealed carry were wrongly decided, Gura's central argument is the state can arbitrarily choose whichever manner of carry (concealed or openly) it wants to so long as it does not prohibit both.

The state doesn't get to arbitrarily prohibit anything, not even economic regulations which have been subject to a level of judicial scrutiny at the lowest end of rational review for the past 50 years. Economic regulations are unconstitutional if their enactment was either "arbitrary" or "irrational."

Given that we have just had two back to back bans on Open Carry here in California (handguns last year, long guns this year), the legislative record is fresh and requires no powers of divination to discern the intent of the legislature. The reasons given were three:

1.) "You don't need a gun to buy a cheeseburger."
2.) "Open Carry is a waste of police resources to conduct the (optional under California law) inspections of a firearm to see if it is unloaded."
3.) "People who openly carry firearms are in danger of being shot by police."

I should point out that California's 1967 ban on Loaded Open Carry has an extensive legislative record. I know because I have a copy of the over 700 page legislative file. In the words of the California Attorney General at the time, the law was only intended to apply to "groups of armed men going about engaging in acts inimical to public safety" (i.e., the Black Panther Party).

Since 1924, Nunn v State has been the controlling law in California. The 1967 legislature enacted legislation at a time when people were still hunting in incorporated cities, parks had shooting galleries with real firearms shooting live ammunition and grade schools had shooting ranges. Obviously, they could not have conceived what California would become 45 years later.

By the way, California courts have historically had a very low threshold on the "good cause" requirement for a concealed carry permit. People v. Mitchell cited another recent California Appellate decision upholding a conviction for concealed carry (People v. Ellison (2011) 196 Cal.App.4th 1342, 1347) in which the court presumed that all that is necessary to obtain a concealed carry permit is to apply and it shall be granted.

The 19th Century prohibitions on concealed carry in Heller (or in California case law) did not apply to persons travelling. As I said before, that is an exception big enough to drive a truck through but the NRA/CRPA/SAF/CalGuns wants all or nothing. Nothing is what they are most likely going to get in California, if not everywhere else.

Last edited by Al Norris; September 1, 2012 at 01:38 PM. Reason: Removed pejorative
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