On the California OC Ban

UCLA Law Professor Adam Winkler, in the LA Times, expresses some of the same sentiment I did about California’s move to further restrict, really eliminate, the “bear” portion of the Second Amendment:

In two recent lower court lawsuits challenging California’s concealed carry laws, the judges upheld the restrictive policies in part because the state allowed open carry. The judges explained that because the state allows people to openly carry unloaded firearms without a permit, any 2nd Amendment right to have a firearm in public was satisfied. If you find yourself in immediate danger, you can load your gun quickly and protect yourself. Absent an open carry policy, however, future courts could have a much harder time upholding concealed carry restrictions.

Looking only at moving this issue through the courts, I’m somewhat glad California is going down this path. I think it would be problematic to force the courts to consider whether unloaded OC satisfies the constitutional requirement. The reason is that I fear the answer would be yes. We’re probably better off with the courts looking at an outright ban, except for a license which is issued at the arbitrary discretion of authorities.

8 thoughts on “On the California OC Ban”

  1. Markie Marxist sez: “Of course anyone carrying an unloaded gun is armed! In fact, as far as my Marxist amigos in Commiefornia are concerned, anyone with an image of a gun on a t-shirt is armed. At least in the sense that we expect that in the future we’ll be able to have anyone wearing such a t-shirt arrested and charged with gun possession. Gun t-shirts are just as offensive to our Marxist sensibilities as real live, loaded guns, so it’s just common communist sense to ban them too!”

  2. “We’re probably better off with the courts looking at an outright ban, except for a license which is issued at the arbitrary discretion of authorities.”

    See Muller vs. Maenza coming out of NJ. This is exactly the issue here.

  3. From Heller

    “We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.

    The District argues that we should interpret this element of the statute to contain an exception for self defense. See Brief for Petitioners 56–57. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions: …”

    I think the unloaded requirement, based on the reasoning used in Heller, particularly the questions asked in the oral arguments, would make for a decent challenge to their unloaded OC law in any event.

    DC argued there was time to load the gun if needed but the Court disagreed. If, in the eyes of the Supremes, you don’t have time to load the gun for self-defense when you have walls and locked doors around you, to claim you will somehow have the time in the immediacy of a violent confrontation in public is going to be tough to support once the appeals go that high

    Still, the only anti-gunners that seem to have any sort of overall competent strategy are MAIG, the rest seem unwilling or unable to consider the foreseeable consequences of their knee-jerk reactions.

  4. Yeah, maybe the folks in California understand the “bear” part and the “keep” part to be part of the “militia” part.

    I know the Supremes didn’t say that, but a lot of people disagree, and perhaps with all that latitude Scalia gave them, the California legislators are calling it likes they sees it.

  5. Prepare to feel very comfortable and familiar mike, cause you’re wrong again.

    The people in California who matter where Constitutional rights are involved, the 9th Circuit, held the individual right to keep and bear arms in self-defense not rooted in the militia (which is all adults anyway per US Code, as you’ve been shown more than once) was incorporated against the State of California -prior- to the McDonald decision.

    In any event, your position is that regardless of whether something is a fundamental civil right it is okay for state legislators to violate or ignore it?

    So, basically, you are in favor of states, should they choose, being able to roll back all the civil rights gains for women and minorities of the past century? Of Miranda going away? Of abortion being made illegal in most states?

    I thought you were a Progressive.

    Wait, that kind of muddied thinking combined with lack of foresight is -exactly- how most self-proclaimed Progressives operate.

  6. Sebastian, I used to think along the same lines – let them ban OC, this will make challenges to concealed carry restrictions more effective. Realistically though, the most likely outcome of challenging concealed carry restrictions in CA will be that the court will strike down OC ban and go back to previous argument that OC satisfies the “bear” part. That’s just sad reality of CA: as much as OC scares them, “shall issue” policy scares them a lot more.

  7. Is a firearm really a firearm if it’s unloaded and therefore cannot fire? I know that sounds rhetorical, but as general (“enrolled”) militia members, being allowed only empty guns is no less ridiculous for us than for Select Militia (National Guard) troops walking the streets of Kandahar with unloaded M-16s.

  8. Don’t forget that several cases, including Peruta are being repealed or soliciting en banc. While the legislature may ban UOC, CA will become a shall issue CCW state at the very least. I’d expect LOC or OC as well.

    One of the other lawsuits recently file is taking on & could quite possibly remove the CA AWB for good as well. Good law & precedent are being made in CA & the anti’s are loosing each & every day!

    I’d suggest checking out the 2nd Admendment forum @ calguns.net

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