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Letters: Article on Second Amendment issues facing 9th Circuit misstated lawsuit

Your article misstated the holding of the 9th Circuit Court of Appeals en banc opinion in George Young Jr., v. State of Hawaii et al.

The threshold question in Young v. Hawaii was whether or not the Second Amendment right to bear arms extends outside of the home, but the seven-judge majority never answered that question.

Instead, the en banc panel held that small and concealable arms are not protected by the Second Amendment and since they are not protected by the Second Amendment there is no right to carry small and concealable arms, openly or concealed.

The majority also played a couple of procedural law games in upholding the Hawaii licensing law.  Notably, it refused to consider the Hawaii licensing law as it applied to Mr. Young because Mr. Young purportedly never challenged in his Complaint filed in the district court that the Hawaii licensing law was unconstitutional as applied to him, and because his lawyer failed to challenge the law as it applied to him on appeal.

The majority construed his lawsuit as a “facial challenge” and then applied what is known as the “Salerno Test” to his facial challenge.  Under the Salerno Test, a law is only facially unconstitutional if there is “no set of circumstances” under which the law is constitutional. Having held that small and concealable arms are not protected by the Second Amendment, the carrying of small and concealable arms is that “set of circumstances.”

There is a reason why the US Supreme Court has never applied the Salerno Test (not even in US v. Salerno), and that is because the Salerno Test leads to irrational and/or evil decisions.

For example, the United States Constitution allows slavery and involuntary servitude for persons convicted of a crime.  A law that imposed slavery or involuntary servitude on people not convicted of crimes would pass the Salerno Test because there would be a “set of circumstances” in which the law is constitutional, persons convicted of a crime.

No other Federal circuit, or state court of last resort that I am aware of, has ever applied the Salerno Test to a Second Amendment challenge.

By applying the Salerno Test, and by holding that small and concealable arms are not protected by the Second Amendment, the 9th circuit court of appeals has created a circuit split with every Federal circuit court of appeals and with every state court of last resort which has considered a Second Amendment challenge.

“Circuit splits” are the primary reason why the Supreme Court grants cert petitions.  The Supreme Court rarely grants cert petitions because of a “mistake of law.”

Finally, I have a lawsuit pending before the 9th circuit court of appeals that challenges California’s Loaded and Unloaded Open Carry bans, Charles Nichols v. Gavin Newsom, et al.  I am the first, and only, person to ever file a lawsuit in Federal or state court challenging California’s Open Carry bans as they apply to handguns, rifles and shotguns.

Unlike Mr. Young’s Complaint, my Complaint states that I challenge the Open Carry bans as they apply to me well over 100 times. Nor is my “facial challenge” a facial challenge that the Court can apply the Salerno Test to for a couple of reasons.  One reason is that due to an 1872 California law, a person cannot be convicted for violating California’s Open Carry bans if he is a person who is prohibited from possessing firearms, or for any crime associated with the unlawful carrying of a firearm that can be punished by more than one year in jail. 

And as the Open Carry bans are laws of general prohibition, more specific laws, such as the law prohibiting firearms in courthouses, is controlling (the Open Carry bans do not apply anywhere the possession, use or carrying of a firearm is “regulated” by some other state law).  Notwithstanding that carrying a loaded or unloaded firearm, openly or concealed, is punishable by greater than a year in jail.

Moreover, my lawsuit excludes schools, government buildings, and “sensitive public places.”  Another procedural game played by the majority panel in Young v. Hawaii was that “public squares” are a place where the carrying of small and concealable arms can be prohibited.

In short, only people who fall within the scope of the Second Amendment right and only those people who are openly carrying firearms in the curtilage of their homes, on their private residential property, in or on their motor vehicle or in non-sensitive public places can be punished for violating California’s Open Carry bans.

On February 15, 2018, I argued my appeal three days after Mr. Young’s appeal was argued and submitted for a decision by his three-judge panel.  Given that the opinion issued in Mr. Young’s appeal would be binding on my three-judge panel, the submission of my appeal for a decision was vacated 12 days later.  When the Mandate was issued in the Young v. Hawaii case, my appeal was once again under submission for a decision.  That was 124 days ago.

My California Open Carry lawsuit was filed on November 30, 2011.  My appeal was filed on May 27, 2014.

My eleventh year of litigation begins on November 30th of this year.

Because I am not an attorney, and even though the State of California conceded several issues I raised on appeal, I will not collect even one thin dime in attorney fees, not even for the issues the State conceded on appeal.

Charles Nichols represents California Open Carry