Saturday, August 24, 2019

This Brief I Am Working On

California apparently banned open carry a couple of years ago.  It appears that the Peruta  decision on its first try at the 9th Circuit decision (in which my work was cited) had argued that at least one method of carry had to be available.  If concealed carry was regulated tightly (as it is in California) then open carry must be available, or the right to bear arms means nothing.  Because an en banc decision of  the 9th Circuit overturned the first 9th Circuit decision , California felt pretty confident banning open carry as well.  Open carry in cities has had to be unloaded since 1967, but at least in most rural areas it was still legal and I have done it many a time.

Anyway, I have been writing what is apparently called a declaration which is a sneaky way to get around the limits on page length for a brief, I guess because I am an expert on this subject.  So far, I have demonstrated that their claim that the Statute of Northampton (1328) banned open carry for centuries is based on a mistranslation of the Norman French "arme" as arms when really it prohibited the wearing of armour  to the terror of the people.

Then I went through their list of Early Republic laws that they claimed banned the carrying of firearms, and found that many of the laws they cited were not there.  (Copying citations from antigun academies is easier than looking up  the laws yourself, but that is what Californians are paying the California Attorney-General to do.)

They also like to claim that it was unlawful to carry in the early  Republic because some states had laws that allowed anyone who had a reasonable basis to fear someone carrying a gun to require posting of a "peace bond" which would be forfeited if you carried a gun or killed the guy.  But none of those laws prohibited carrying a gun except if a judge decided that your carrying represented a threat to someone else.  (Sort of like  Red Flag Law, I suppose.)  Of course they misrepresent this as a general ban on carrying of guns.

Then they get into what is going to be serious doo-doo, even with an antigun judge: quoting a few words here errors here and there to misrepresent what particular court decisions actually said.

Then I discuss how at the 1850 California Constitutional Convention, delegates discussed whether to add a right to keep and bear arms to the state constitution.  The argument presented by some delegates with no disagreement from others is that it was not needed, because the Second Amendment already took care of that.  The biggest opponent was the guy trying to ban blacks from moving into California.

And because they tried to smear gun carrying as an artifact of slavery, I pulled out the racist history of gun control and specifically in California, where the current concealed weapon law was passed for the stated purpose of disarming Mexicans and Chinese.  It was signed by a governor endorsed by the KKK who refused to answer whether he was a KKK member.

This really is not as long as it sounds. Most of the work has been turning PDFs from books.google.com into pages in the Appendix.  When you accuse someone of voting laws that are not there, it is always good to have copies of the cited pages as part of the document, so the judge does not have to wonder who is correct.

Anyway, great fun, a lot of work, exorbitant pay, hence limited blogging.  I should have it ready for the attorney on Tuesday. Still need to sleep on it and do some editing. I will probably make it available for you all to read and look for typos  Sunday night.

5 comments:

JLW III said...

I remember well that California gun control really took off with the publication of the iconic picture of Huey P. Newton sitting in a wicker chair with a shotgun and a spear.
https://dilemma-x.net/2015/04/08/remember-yesteryear-black-panther-party-and-dr-huey-p-newton/

Dean Weingarten said...

Excellent Clayton, looking forward to your declaration.

Dean Weingarten said...

Excellent work. I look forward to reading your brief.

Eskyman said...

Wonderful! I'm so glad to hear that you're doing this, Clayton.

We need all the help we can get here in CA, too many of our judges appear not to have ever read the Constitution, and if they have- then they disapprove of it.

I was naive enough to think that we'd get Open Carry or even CCW when the Peruta case arose, but to my astonishment they banned every kind of carry, except of course for the elites!

Roberto Masioni said...

"And because they tried to smear gun carrying as an artifact of slavery, I pulled out the racist history of gun control and specifically in California, where the current concealed weapon law was passed for the stated purpose of disarming Mexicans and Chinese. It was signed by a governor endorsed by the KKK who refused to answer whether he was a KKK member."

Oh, no! He's using the "Dems are the real racists" defense!