Before I filed my California Open Carry lawsuit in November 2011, I spent well over a year preparing for it. One of the things I discovered, and much to my surprise, is that nobody had ever filed a lawsuit challenging California’s 1967 ban on openly carrying loaded rifles, shotguns, and handguns in public for the purpose of self-defense.
In my search of the legal databases available then, I found no shortage of concealed carry cases, which were mainly appeals of criminal convictions for concealed carry. Once the United States Supreme Court published its District of Columbia v. Heller decision in 2008, which held that the right to keep and bear arms is an individual right unconnected to service in a milita, there was an explosion of concealed carry lawsuits.
This baffled me then because if there was one thing all of the justices in the Heller opinion agreed on, it was that the 19th-century prohibitions on concealed carry do not violate the Second Amendment. Justice Scalia chose to read that section of his Heller opinion from the bench the morning the opinion was announced.
And so, I became the first person ever to file a lawsuit challenging California’s 1967 ban on openly carrying loaded rifles, shotguns, and handguns. I’m still the only person given that the Baird v. Bonta Open Carry lawsuit is limited to handguns, and the Zeleny v. Bonta Open Carry lawsuit is limited to unloaded firearms.
My lawsuit, Charles Nichols v. Gavin Newsom et al, also challenges California’s prohibition on issuing licenses to openly carry handguns to residents of counties with 200,000 or more people, the validity of licenses being restricted to the county of issuance, as well as all of the ancillary licensing statutes, including the requirement for a license in and of itself (California does not license the Open Carry of long guns).
The Baird v. Bonta lawsuit also challenged that restriction on where handgun Open Carry licenses are valid, but he dropped that challenge when he filed his amended complaint in the district court. Should he prevail in his lawsuit, it will still be a state and Federal crime to carry a firearm, openly or concealed, within 1,000 feet of every public and private K-12 school in California. Mark Baird filed his lawsuit, which is limited to handguns, in April of 2019.
The Zeleny v. Bonta lawsuit was filed in December 2017. It is limited to unloaded firearms and is a bit of a puzzle. Mr. Zeleny never stated a Second Amendment claim in his Complaint (the document that puts the defendants on notice as to why they are being sued and what is sought from them).
Under what is known as “liberal pleading notice,” the Complaint does not have to allege theories of liability explicitly, but defendants must be given fair notice of those theories.
Right now, the State of California and Mr. Zeleny’s new attorney are battling in the Court of Appeals over whether Mr. Zeleny gave the State of California fair notice. On July 26th, the State of California filed a motion to “Vacate and Remand” the case back to the district court. Yesterday, Mr. Zeleny’s lawyer (who did not represent him in the district court) filed his opposition to the State’s motion.
Mr. Zeleny’s attorney had filed an earlier motion for the Zeleny appeal to be decided by the same three-judge panel assigned to the Baird v. Bonta appeal (Mr. Baird, like Mr. Zeleny, challenges California’s ban on openly carrying unloaded handguns).
The Baird v. Bonta lawsuit became fully briefed on July 22nd. Coincidentally, one month later, on August 22nd, my opposition to the State’s motion for summary judgment is due. The State of California will then have 14 days to file its reply to my opposition. The State’s due date is September 5th. The State of California scheduled the hearing before the district court judge, presumably because magistrate judges lack any legal authority to grant motions for summary judgment, and doubly so in my case because of the limitations placed on both the magistrate and district court judge by the Court of Appeals when my case was remanded back to the district court, in September of 2022.
Nevertheless, the magistrate judge removed the hearing from the calendar of the district court judge and said she would be writing a report and recommendation to submit to the district court judge.
California is not the only state with a ban on Open Carry. After the United States Supreme Court reaffirmed in NYSRPA v. Bruen (2022) what every other Federal circuit court of appeals had held, that the only manner of carry that can be prohibited is concealed carry, a couple of states banned the Open Carry of handguns (New York and New Jersey), and Connecticut banned the Open Carry of all firearms.
In December 2012, the 7th Circuit Court of Appeals enjoined Illinois’ bans on carrying loaded and unloaded rifles, shotguns, and handguns in cities, towns, and villages. The Court stayed its injunction for six months to give the legislature time to enact a licensing law and to prohibit concealed carry if the State wanted to.
The so-called gun-rights groups, in particular the NRA’s state representative, lobbied the Illinois legislature to ban once again Open Carry, which it did.
In November 2019, the Sinnissippi Rod and Gun Club, Inc., filed a lawsuit in Illinois State Court challenging the state's ban on Open Carry of handguns. The plaintiffs lost in the trial court in a one—or two-sentence decision. On March 1st of this year, the plaintiffs lost in a sharply divided 2-1 panel opinion. They now seek to have their case reheard before the Illinois High Court. I suspect they will lose. At that point, they can petition for a writ of certiorari with the United States Supreme Court.
The National Association of Gun Rights (NAGR) had been threatening Florida with an Open Carry lawsuit for a long time. In September 2023, NAGR sent the governor of Florida, the Florida AG, and various committee heads a stern email threatening a lawsuit that never happened. To my surprise, Gun Owners of America filed an Open Carry lawsuit on August 6th. That case is GOA v. Pearson. Gun Owners of America has the distinction of being the first, and most likely last, of the self-described gun-rights groups to file an Open Carry lawsuit. But the G.O.A. is not without sin. The GOA and the Gun Owners of California were founded by the late California State Senator H.L. Richardson, who voted for the 1967 California Loaded Open Carry ban and voted in 1981 to raise the threshold at which one could load his firearm in public from a reasonable fear of serious or great bodily injury (“serious” and “great” are the same thing under California law) to “grave, immediate danger.” The GOA and Richardson filed Amicus briefs supporting the NRA/CRPA concealed carry lawsuit, where the plaintiffs argued that California’s bans on Open Carry are constitutional.
The GOA/GOC did file an Amicus brief in support of Baird v. Bonta in April. Who am I to stand in the way of those on the path to redemption?
The preliminary injunction appeal of the Frey v. Bruen New York handgun Open Carry lawsuit was argued and submitted for a decision by the Court of Appeals on January 30, 2024. We are still waiting for the 2nd Circuit Court of Appeals to render its decision.
Although statewide prohibitions on Open Carry are few and unchallenged by any of the so-called gun-rights groups, with the exception of the GOA in Florida, there are local Open Carry bans, such as the one in Denver, Colorado. These would be easy targets for any of these groups, but, as you might expect, no lawsuit has been filed or likely will be.
I forgot to mention that I finished writing my opposition to the State of California’s motion for summary judgment in my California Open Carry lawsuit, Charles Nichols v. Gavin Newsom et al. I won’t be filing my opposition until August 21st, the day before it is due. I am not one to wait until the last minute to file, particularly when failing to file means that one loses. The risk of missing my filing deadline far outweighs the single-day marginal advantage it gives the State of California to file its reply to my opposition.
On a slightly related note, I was banned from Reddit after over nine years. I don’t know why. I rarely posted on Reddit. Reddit’s Open Carry subreddit is controlled by concealed carriers who oppose Open Carry. Like pretty much all social media, with the notable exception of Twitter/X, Reddit opposes the Second Amendment in general and Open Carry in particular. Starting a couple of years ago, Reddit auto-deleted links to my Bitchute and Rumble videos. There was once an Open Carry channel on YouTube, mine, which was also deleted several years ago. And yet, there is no shortage of videos on YouTube attacking Open Carry, including the following clip from an NRA convention where its board member, Ted Nugent, attacks people who openly carry firearms as weirdos.
The NRA and the other self-described gun rights groups remind me of that old saying by the communist Lenin. “The best way to control the opposition is to lead it.” I hope the G.O.A. Open Carry lawsuit does not turn out to be an example. After all, Florida Carry hired an NRA lawyer and opponent of Open Carry to write the cert petition in Norman v. Florida. The primary reason why SCOTUS grants cert petitions is to resolve circuit splits on Federal questions of law. Rarely does SCOTUS grant a cert petition to decide a case of national importance (see SCOTUS Rule 10). You should not be surprised that despite the circuit split, the cert petition neither cited the split nor argued that the Norman v. Florida case was a case of national importance.