The Latest Lawsuit Aimed At Calif ‘Open Carry’ Gun Ban

GUNS & POLITICS - You still have a few weeks to strap on your Glock while you do your holiday shopping.

The constitutional guarantee of the right of citizens to bear arms has been under assault by California’s Legislature for decades. The latest salvo was AB 144, which makes it illegal to openly carry an unloaded handgun in public. It takes effect January 1, 2012.

Like a lot of bad legislation, AB 144 passed largely along party lines on the last day of the session when the sausage is cranked out by the barrelful. It is aimed at the so-called “right to carry” or “open carry” gun rights activists, who have in effect shoved their guns in the face of liberal legislators by showing up in groups at Starbucks and other places while packing heat or at least unloaded heat. Naturally, the Democrats shoved back.

“AB 144 seeks to close a loophole, which allows individuals to openly carry unloaded guns almost anywhere in the state of California,” said state Sen. Kevin de Leon, D-Los Angeles, in the Senate floor debate on Sept. 8. “The absence of a prohibition on an unloaded open carry has created a problematic increase of guns carried in public, alarming unsuspecting individuals and causing issues for law enforcement.

“Open carry creates potentially dangerous situations. In most cases when a person is openly carrying a firearm, law enforcement is called to the scene with very few details other than the fact that there’s one or two or three or four individuals carrying what is presumed a loaded weapon. In these tense situations the slightest wrong move by a gun carrier could be construed as threatening to a responding police officer, who may feel compelled to respond in a manner that could be lethal. The practice of open carry creates an unsafe situation for all parts involved: the police officer, the gun-carrying individual as well as all individuals nearby. Additionally, the increase in open carry calls is very taxing to law enforcement agencies.”

Firing Back

Three Republican senators fired back.

“The Second Amendment is not a loophole. OK?” said state Sen. Doug La Malfa, R-Butte. “It’s something put there by people a lot wiser than us over 200 years ago to give people a chance for self protection, to protect their property, their families, themselves. This open carry thing is another infringement, the further narrowing of people’s Second Amendment rights, because it’s not in style for some. There’s no problem with this. Cops have very few incidents of a problem with somebody open carrying. Very few people use it much. But they ought to have that right to do so. It isn’t a problem for anybody except for the gun grabbers that continually chip away and narrow our basic rights.

“If you don’t want them in the cities, don’t have them. Up where I’m from, it’s seen as a basic component of everyday life. You might have your thermos, your lunch box and, yeah, you have a sidearm. Especially if you’re out in the rural area where drug laws aren’t being enforced in California anymore. So why in the world wouldn’t you have this right? I’m sick and tired of it being chipped away. And it certainly causes more and more of the impetus for people to want to divide the state between the urban areas that seem to want to lose all their rights on everything, as opposed to people in rural California that just want to be left the hell alone.”

No Complaints

State Sen. Ted Gaines, who represents much of the Sierra Nevada from Mono to Modoc counties, said, “I’ve never had a complaint from my 12 counties, I’ve never had a constituent call with a complaint on open carry. When we take a look at the challenges we are having in much of the forest land across my district where there’s a lot of illegal growing of marijuana, I have talked to individuals that are fearful of going to certain places within their own county. They see a drip line or irrigation line going down a path that they are too afraid to walk down. This, in my mind, is just over the top, it’s unnecessary.”

It’s not just rural Republicans opposed to further restrictions on gun rights. State Sen. Joel Anderson, who represents part of San Diego, said, “It was just a short time ago when this body was concerned about concealed [carry] permits – ‘that if we can’t see the weapons, then it makes us nervous and how are the police going to respond if they can’t see the weapons?’ The one thing that we know is open carry people who are doing that are abiding by the law. We are sending a clear signal to law enforcement: ‘We have a weapon, it’s not loaded, we are playing by the rules.’ Criminals hide their weapons. Criminals carry their weapons illegally. Don’t turn law-abiding citizens into criminals. The more we chip away at our ability to protect ourselves, it’s undermining our freedoms.”

Law Enforcement Backing

De Leon, who was carrying the bill in the Senate for Assemblyman Anthony Portantino, D-La Canada Flintridge, had the last word.

“If it impacts only law-abiding citizens, then why is all of law enforcement behind this measure,” asked de Leon. “Let’s be very clear, this is not the Wild West. This does not infringe on the Second Amendment of the Constitution of the United States, the right to bear arms. How discomforting can it be if you walk into a restaurant, a Starbucks, to Mickey D’s or wherever it is you may go to, and all of a sudden you see someone walking around with a handgun and you can’t discern whether they are a law enforcement agent or undercover, perhaps maybe they are not.

“If you’re a law-abiding citizen, you can buy all of the ammunition you’d like. If you’re a law-abiding citizen, you can buy long guns as well as a handgun. All it says is it makes it a misdemeanor if you carry an unloaded gun openly. This is 2011. It’s nonsensical that we would walk into any public space, any private space and then you see someone with a holster walking around with guns. It just doesn’t make sense whatsoever. This is not a third world country. This is the eighth largest economy in the world. This is the United States of America.”

Fighting Back

Some would argue that restricting gun rights is actually bringing the United States closer to the gun confiscation typical in third world despotic regimes than the country that fired the ‘shot heard ’round the world’ when the British attempted to raid an armory in Concord. And some are fighting back.

Charles Nichols, president of California Right To Carry, has filed a civil rights lawsuit in the Federal Central District Court for California against the ban on open carry of both unloaded and loaded weapons. He intends to serve it on Gov. Jerry Brown, Attorney General Kamala Harris, the City of Redondo Beach, its police department and police chief on Thursday, Dec. 15, which is the 220th anniversary of the Bill of Rights.

Reagan Ban

The lawsuit notes that the ban on unloaded open carry is an extenuation of the ban on loaded open carry enacted by the California Legislature in 1967 in response to Black Panther intimidation tactics. Panthers would show up at the scene of arrests of black suspects in Oakland with loaded firearms to ensure against police brutality.

The Panthers put a scare into state Sen. John Nejedly, who agreed to meet with the family of a Richmond man killed by a deputy sheriff  in the course of a burglary. “I met with the family in good faith only to be confronted with an armed group, the Black Panthers,” Nejedly wrote to then-Gov. Ronald Reagan in April 1967. “This group was armed with pistols and shotguns and threatened to obtain ‘justice’ if their demands were not met. Today, this same group is appearing before the County Administration Building similarly armed.”

In response, Oakland Assemblyman Don Mulford introduced AB 1591, banning the open carry of loaded weapons. The Panthers protested the bill by invading the Assembly Chamber carrying loaded pistols, rifles and a sawed-off shotgun. Chaos ensued and legislators dove under their desks. Needless to say, the Mulford bill passed easily and received Reagan’s signature.
Nichols’ lawsuit states that he received a death threat in September and would like to carry a loaded handgun in public for self-defense. The suit argues that he should be allowed to do so, based on the

Second Amendment and legal precedent. Nichols expects to lose at the District Court level, but is confident of victory in the 9th Circuit Court of Appeals.

(Dave Roberts writes for where this column was first posted.)

Tags: guns, gun laws, open carry, open carry laws, Constitution, Second Amendment, AB 144, California, Republican, Starbucks, Ronald Reagan

Vol 9 Issue 100
Pub: Dec 16, 2011