A Win For Carry In The 9th Circuit

I know you are probably saying, “what the hell? The 9th Circuit?” It is true. Today the 9th Circuit issued its opinion in Young v. State of Hawaii. The 2-1 decision found that the Second Amendment does protect the right to openly carry a firearm in public for self-defense. You will remember in Peruta v. San Diego that the 9th Circuit ruling en banc said there was no constitutional right to carry concealed in public and that the Supreme Court refused to grant certiorari on appeal.

From Reuters:

The ruling issued by a three-judge panel on the 9th U.S. Circuit Court of Appeals, based in San Francisco, came a year after the U.S. Supreme Court declined to rule either way on the carrying of guns in public.

Two of the three 9th Circuit judges voted to reverse a decision by the U.S. District Court in Hawaii that state officials did not infringe on the rights of George Young, the plaintiff, in twice denying him a permit to carry a gun outside.

“We do not take lightly the problem of gun violence,” Judge Diarmuid O’Scannlain wrote in Tuesday’s ruling. “But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.”

 I would be extremely surprised if this decision does not go to an en banc hearing in the 9th Circuit.

I have not had time to read the whole decision but you can read it here.

Florida Carry Is On The Case

Open carry is generally not legal in Florida. However, it is allowed when you are hunting or fishing. The Tampa PD seems not to have gotten that message. George Freeman, as you can read below, was fishing on a city pier when he was detained and then ultimately banned from a city pier while open carrying.

While I personally prefer concealed carry, I do so in a state where unlicensed open carry has been the rule since the early 1920s thanks to a NC Supreme Court ruling. I believe open carry should be legal because, at the very least, concealed carry holders need protection when inadvertently exposing their firearm.

Florida Carry files lawsuit against Tampa for violations of members’ rights and Florida law.
Tampa went too far.
Our member, George Freeman was NOT breaking any law but he was detained for over an hour, disarmed, searched, and ultimately banned from a Tampa city pier and all city parks for exercising his Second Amendment Right to Bear Arms.
The fact that a person is peacefully exercising their right to bear arms is not cause for police officers to attack, detain, search, and trespass a citizen who is a law-abiding gun owner.
To insure that this does not happen again, our lawyers are coming fishing with us at the next regularly scheduled Florida Carry Fishing Meetup, on Saturday, July 11th – 10am Ballast Point Pier in Tampa. Information and directions can be found by clicking HERE.
We have also filed a lawsuit to defend the right to bear arms, our members, and your rights.  You can read about the case by clicking HERE.

We are raising funds to support the lawsuit.  please read more and consider contributing to your fellow gun owner’s case at: https://www.gofundme.com/DefendingRKBA
Open Carry Fishing

Open Carry Fishing

We often have to go to the courts to demand our rights.

You can keep up to date on our court cases at: https://www.floridacarry.org/litigation

Obviously Emblematic Of Gun Control’s Sagging Support

I know they say “Keep Austin Weird” but even this is weird by Austin standards.

Earlier this afternoon, CATI (Come and Take It) conducted a walk through downtown Austin to raise awareness for the current restrictions on gun rights in Texas. This walk is done monthly, and today’s walk was led by Thomas Jefferson from their Austin Chapter. Anti-gun protestors decided to arrive though, and they conducted their protest TOPLESS!

While being topless and exposing one’s boobs in public is legal in Austin, it does seem a strange way to protest against gun rights. Having seen the pictures of the protesters, I’d say it is emblematic of gun control’s sagging support (pun fully intended).

Pictures of the counter-protesters can be seen here but you are on your own for eye bleach.

What Do McDonalds And Dunkin Donuts Have To Say About Carry In Their Stores?

Howard Schultz’s letter requesting that customers refrain from carrying their lawfully owned firearms in Starbucks hit a nerve last week. It not only unleashed a tsunami of criticism from gun owners but it caused a number of introspective posts from gun bloggers regarding open carry. The tactics of some open carry activists were especially subject to criticism.

 All of this controversy led to questions about Starbucks’s competitors and their policies. Business Insider, a business website, reached out to both McDonalds and Dunkin Donuts to find out their policies.

In essence, they will abide by the local and state laws where their stores are located.

Here’s a statement from McDonald’s spokeswoman Lisa McComb:

“We recognize that there is a lot of emotion and passion surrounding the issue of firearms and open carry weapons laws.

While we respect the differing views of all our customers, McDonald’s company-owned restaurants follow local, state and federal laws as it relates to open carry weapons in our restaurants.

For franchisee-owned restaurants, operational decisions regarding open carry weapon laws are made by the independent franchisee.

That said, as with all aspects of operating a McDonald’s restaurant, we expect our franchisees and their crew to follow local, state and federal laws.”

And Dunkin’ Donuts spokeswoman Michelle King:

“Dunkin’ Donuts and Baskin-Robbins restaurants are owned and operated by individual franchisees who are required to follow all federal, state and local laws with regard to firearms.”

While North Carolina has had open carry since 1921, I would hope that open carry activists would use some discretion. It is one thing to have a revolver or pistol on your hip; it is entirely another thing to carry an AR or shotgun on a sling. Let’s face it, when the average gun owner open carries, it is a handgun unless they are out in the woods.

So Freaked Out By Open Carry That He Gets Arrested

I’m neither a proponent nor opponent of open carry. I don’t tend to do it because I want to keep the bad guys guessing. That said, if you want to open carry that is your option. If you do, I promise I won’t be like Robert Gursky of Glastonbury, Connecticut.

According to this story in the Hartford Courant, Mr. Gursky was so freaked out by a gentleman legally open carrying at his local bank that he slid the teller a note that said “gun”. The teller did what he or she was trained to do – they hit the silent bank robbery alarm.

Mr. Gursky was arrested for breach of peace and has to appear in court next week. And the man open carrying? He was interviewed by the cops who determined that he possessed his firearm legally and that was that.

There is something to be said for poetic justice.

H/T BearingArms.com

Win For Open Carry In Mississippi

The Mississippi Supreme Court overturned Hinds County Circuit Court Judge Winston Kidd’s injunction against House Bill 2 today. HB 2 defined what constituted concealed for the purposes of concealed carry. By defining concealed, the bill clarified that open carry is permitted under the Mississippi State Constitution.

Judge Kidd had found HB 2 to be “unconstitutionally vague” back in July and had issued a permanent injunction against the law. The parties seeking the injunction included Hinds County DA Robert Shuler Smith, Hinds County Sheriff Tyrone Lewis, and St. Senator John Horhn (D-Jackson). Backers of the the lawsuit included the Southern Poverty Law Center who helped draft the briefs.

In their 9-0 decision, the Mississippi Supreme Court found that Judge Kidd had erred as a matter of law.

This Court now finds that the Circuit Judge erred as a matter of law when he found House Bill 2 to be vague and, therefore, unconstitutional. He also erred when he stated that “a reasonable person reading the bill could not discern what the law allows and what it prohibits.” Therefore, the Petition for Interlocutory Appeal is granted and rendered, and the Order Granting Plaintiffs’ Motion for Injunctive Relief is vacated.

The Court also assessed the cost of the appeal to the Appellees.

Mississippi politicians were quick to praise the Supreme Court’s decision on open carry.

Gov. Phil Bryant (R-MS) released this statement:

JACKSON—The Mississippi Supreme Court today ruled 9-0 that House Bill 2, which clarifies the definition of “concealed” for purposes of Mississippi laws regarding the concealed carrying of firearms, is valid and constitutional. The court also vacated the injunction that a Hinds County judge had issued against the bill. As a result, it is now clear that House Bill 2 can take effect statewide.

“House Bill 2 is an important clarification of citizens’ right to keep and bear arms under the state and federal Constitutions. I am very pleased that the court has agreed that House Bill 2 is consistent with the Constitution so that law will now take effect statewide.”

Lt. Gov. Tate Reeves (R-MS) issued a briefer statement praising the decision:

“I’m proud the Supreme Court confirmed our goal of protecting our right to bear arms. Today’s ruling is a win for our Constitution and a win for every Mississippian.”

Rep. Andy Gipson (R-Braxton), author of HB 2, said he knew his bill was constitutional and was happy that the Court agreed.

“When the lawsuit was first filed, I said I never seen a lawsuit filed over the constitutionality of a law in the Constitution,” Gipson said.

Gipson has said “If you carry a weapon concealed, you need a concealed carry permit. Otherwise, the Constitution of 1890 guarantees each citizen the right to keep and bear arms to defend himself/herself. No change to the constitution here; just defining concealed for the first time. Until now, individual law enforcement or courts could fabricate a definition which resulted in an illogical infringement on constitutional rights.”

The statement from Secretary of State Delbert Hoseman (R-MS) noted he was a NRA Life Member and he was pleased the Supreme Court “has protected this fundamental right.”

Of course, the plaintiffs who brought the case were none too happy. St. Sen. John Horhn (D-Jackson) plans to introduce legislation to require permits for both open and concealed carry. He has also called on Jackson and Hinds County leaders to ban open carry. It should be noted that Sen. Horhn, like every other member of the Mississippi legislature, voted for HB 2.

There is no word of any public reaction from Hinds County DA Robert Shuler Smith or his attorney Lisa Ross.

Permanent Injunction Issued Against Mississippi Law On Open Carry

Hinds County Circuit Court Judge Winston Kidd issued a permanent injunction against Mississippi HB 2 calling it “unconstitutionally vague.” He ordered that it can’t take effect until such time as the Mississippi Legislature “reviews, amends, or clarifies” HB 2 so as to accomplish its intended purpose.

found no case law, or any other authority, which gives an individual the absolute right to “open carry” a weapon, as contended by the state.”. Judge Kidd further said “when the legislature creates laws which are vague, confusing, and overbroad, then it is the responsibility of hte court to make a determination as to the law’s constitutionality…. House Bill 2 is unconstitutional…

House Bill 2 does more than define “concealed.” It creates confusion and chaos with respect to the enforcement of gun laws here in this state. House bill 2 does not clearly set forth “who is allowed to openly carry a weapon in a holster. Certainly our legislature did not mean to allow anyone and everyone to openly carry a weapon in a holster. Next, House Bill 2 does notn state “where” an individual can openly carry a weapon in a holster. If this law goes into effect, individuals will attempt to openly carry weapons anywhere and everywhere. This can not possibly be the intent of our legislature….”

The full decision can be found here.

Mississippi House Judiciary Chairman Andy Gipson (R-Braxton), who was the author of the bill, fully expects Kidd’s ruling to be appealed by the State of Mississippi to the Mississippi Supreme Court. He has also gotten confirmation that the National Rifle Association intends to file an amicus brief in support of the state’s case.

In comments to the Clarion-Ledger, Gipson said:

“They (NRA) do see this as a matter of constitutional gun rights being threatened,” Gipson said.

Gipson said he was not surprised by the judge’s ruling, and believes the case will head post-haste to the state Supreme Court.

“(Kidd) just continued what he did with the temporary restraining order, and I am confident we will be appealing, the state will appeal, to the Supreme Court,” Gipson said. “I just think the judge got it wrong. Anybody who reads House Bill 2 can clearly see the legislation is clear and that the Legislature has the right to regulate concealed carry.

Attorney General Jim Hood (D-MS) released a written statement this afternoon indicating that he will be appealing the ruling after he has had time to study it.

“We are in the process of reviewing the Judge’s order,” said Hood in a written statement. “At this stage, we are likely to ask the Mississippi Supreme Court to take a look at this case. We have 21 days to do so, but it will be up to the Court as to whether and when they do. It remains the duty of this office to defend our State laws and their constitutionality.”

More comments from both sides and some courtroom footage can be in seen in the video report below from WLBT-Channel 3/Fox 40 in Jackson.

MSNewsNow.com – Jackson, MS

Open Carry In Mississippi Still On Hold

Judge Winston Kidd extended his Temporary Restraining Order against HB 2 until Friday according to “Jackson Jambalaya” who attended the proceedings this afternoon. The state argues that HB 2 only clarified the definition of concealed and that open carry is allowed under the MS Constitution of 1891.

Rep. Andy Gipson (R-Rankin) who authored HB 2 released this statement earlier today before the beginning of the hearing.

“The Amended Complaint filed with the Hinds County Circuit Court on July 1, 2013 alleges that House Bill 2 (which defined the term “concealed”) is unconstitutional on three grounds:

1) “Unconstitutionally vague.” House Bill 2 defined concealed as: “hidden or obscured from common observation.” Moreover, examples are given as to what is not concealed such as carried in a holster open to common observation. HOW IS THIS VAGUE TO ANY COMMON SENSE PERSON???

2) “Overbroad.” House Bill 2 narrowly defined the word “concealed” to ascribe to it a meaning that can be understood by most people. If you can seesomeon has a gun, it’s not “concealed.” If you can’t see a gun, it is “concealed.” IF ANYTHING THE LEGISLATURE GAVE THE TERM “CONCEALED” A NARROW DEFINITION, NOT A BROAD DEFINITION. HOW CAN THIS BE UNCONSTITUTIONAL???

3) “Arbitrary and Capricious.” This is where it gets most interesting. The complaint alleges that the definition “is arbitrary and capricious in excusing persons who wish to openly-carry firearms from the license requirements imposed on persons who wish to carry concealed firearms.” TRANSLATION: HINDS COUNTY OFFICIALS WANT TO REQUIRE GUN LICENSING AND REGISTRATION OF ALL GUNS BEING CARRIED BY MISSISSIPPIANS. THIS IS THE SAME LINE OF THINKING BEING PUSHED IN WASHINGTON D.C. AND NEW YORK CITY, RIGHT HERE IN OUR OWN BACKYARD.”

UPDATE: MS Assistant Attorney General Harold Pizzetta who argued the state’s case before Hinds County Circuit Court Judge Winston Kidd had this clarification about the impact of Judge Kidd’s order.

Pizzetta said Kidd’s order applies to the entire state since it prevents the state from going forward with the law. That had some confusion whether Kidd’s earlier ruling applied to just Hinds County or the entire state.

More On The Open Carry Fiasco In Mississippi

The attempt to stop HB 2 – the Mississippi law that defines “concealed” – from coming into effect is looking more and more like a fiasco. By defining concealed, HB 2 clarifies open carry as allowed under the Mississippi Constitution.

A case in point. One of the named plaintiffs, Hinds County District 4 Constable Jon Lewis, says his name was added to the initial complaint without his permission or consent.

From Y’All Politics:

Representative Andy Gipson sent me a text yesterday at 1:00 stating there would would be a press conference about HB2 at 1:30. I decided to attend and show my support for the legislation. After the news conference WAPT’s Erin Kelly asked me about my position on the issue. I told her I supported HB2. She asked if I were a party to the suit and I told her no but other Constables were. She said my name was on it. I discovered to my surprise indeed it was.

I angrily called attorney Lisa Ross’ office and asked for her to call me (she is the Attorney who filed and signed the case). A few minutes later she called and told me she had my name removed and it was a mistake. I told her “Great, but the damage has been done.” along with a few other choice words. I asked her why she did this and she said my name was on a list. I asked her “what attorney takes on a client without his written permission.” She again said it was her mistake and she removed from the case. I consider this lawyering at its worst. I promptly went the Mississippi Bar Association and picked up 3 complaint forms for each attorney involved.

 You would think that a lawyer who had been in practice for 19 years and who had gone to a top 50 law school (University of California Hastings College of Law) wouldn’t be making such amateur mistakes. I guess in her case that ideology has gotten in the way of good legal practice.

Dave Hardy at Of Arms and the Law blog posted about the case yesterday. He considers their temporary restraining order as “bunk” and then proceeds to pick apart their whole initial motion for a TRO. He concludes with this.

Who drafted this pile of offal? Can officers of a county (which is
generally a subdivision of the State) sue the State? Isn’t that a
little like the City Planner suing the city because he doesn’t like the
zoning plan?

If attorney Lisa Ross who drafted both the initial motion and the response to the Mississippi Supreme Court is considered the best legal draftsperson of the legal team involved, then what does that say about District Attorney Robert Shuler Smith and Southern Poverty Law Center attorney Jody Owens?

Nonetheless, a three judge panel of the Mississippi Supreme Court yesterday declined to stay the Temporary Restraining Order issued by Hinds County Circuit Court Judge Winston Kidd. Their order said they were denying the state’s request on procedural grounds and expressed “no opinion respecting the merits of the matter pending before the circuit court.”

Judge Kidd will be holding a hearing on the case on Monday, July 8th. It is still expected that the case will eventually be appealed one way or another to the Mississippi Supreme Court.

About That Open Carry Law Fiasco In Mississippi

The State of Mississippi passed a law in March clarifying the law regarding open carry in that state. It was to go in effect today. Late Friday afternoon, the District Attorney for Hinds County (Jackson) and an attorney for the Southern Poverty Law Center found a judge who would grant a temporary injunction against the law. As David Codrea noted on Saturday, Judge Winston Kidd bypassed the normal checks and balances.

In an unabashed feat of judicial and linguistic contortion, Kidd ruled that specific language is “vague,” and justified his injunction on the grounds that allowing the bill to take effect would cause “irreparable harm.” That’s consistent with what opponents of the bill, who lost their fight to kill it in the legislature, are promulgating.

Jeff Pittman, a gun rights advocate in Mississippi, had this to say in his 2A Newsletter which I’ve reprinted with Jeff’s permission.

House Bill 2 rationally defines concealed weapons as those not readily visible, and unconcealed weapons as those readily visible. The effect of the law is that open carry will be generally legal without a permit, as the Mississippi constitution provides. The only reason folks haven’t been able to open carry in the past is the erroneous definition of “concealed” in current law and case law, which refers to “concealed in whole or in part.” The constitution says nothing about concealed “in part.”

In what can only be described as a sneak attack, late Friday afternoon just before the courts closed for the last time before the law took effect, a lawsuit was filed seeking an emergency injunction against the law’s taking effect on Monday morning (today).

The lawsuit was brought by Hinds County District Attorney Robert Shuler Smith, Hinds County Sheriff Tyrone Lewis and state Sen. John Horhn (D-Jackson) among others. Those ELECTED officials will be remembered in the future.

The plaintiffs apparently went judge shopping and found a winner in Hinds County Circuit Judge Winston Kidd (another ELECTED official), who agreed the law was ambiguous or vague and a restraining order was “necessary to prevent immediate, irreparable harm.” Kidd issued a temporary injunction in the emergency hearing sometime after 4:30 Friday afternoon.

What the alleged ambiguity or harm is was not clear. What the emergency was to block a law that was passed months ago was also unclear.

Not being an attorney, I was unaware that a county judge could block a state law. What if another county judge blocks the original concealed carry prohibition law?

The temporary restraining order reportedly will last until July 8, when Kidd has scheduled a hearing on the merits of an injunction to block the law.

Look for this to move to a competent court.

Both Horhn and another plaintiff said they don’t believe the constitution provides for open carry. But Article 3, Section 12 of the MS Constitution reads:

“Right to bear arms.
The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.”

Jody Owens, an attorney for the Southern Poverty Law Center (a well-known liberal hate group), represented DA Smith, and spun a bizarre story for the press, saying “The plaintiffs are trying to stop mayhem. We’re looking at a wild, wild west scenario.”

Arguing for the state, assistant attorney general Harold Pizzetta said that open carry is already protected by the state’s constitution, because it isn’t mentioned in a section that gives the Legislature the right to regulate concealed carry (see above).

Once the new law takes effect, there will still be a lot of problems due to erroneous efforts to circumvent it. Agencies and local governments statewide are falling all over themselves to try to ban legal guns from all government buildings by passing policies and posting signs, apparently little of which is supported by statute. Keep in mind that we also have a preemption law prohibiting such activities by cities and counties. Mississippi Code section 45-9-51 reads “Subject to the provisions of Section 45-9-53, no county or municipality may adopt any ordinance that restricts or requires the possession, transportation, sale, transfer or ownership of firearms or ammunition or their components.”

Mississippi Attorney General Jim Hood filed a combined petition to vacate a restraining order and emergency petition for interlocutory appeal with the Supreme Court of Mississippi today. Jeff Pittman notes in a later email that Hood has never been a “particularly strong proponent of gun rights, and this case is likely more of a turf war than a battle of philosophies.” I think Jeff may be quite correct on this last point if this part of the petition is any indication.

From the Gun Rights Examiner:

“[T]he Motion incorrectly declares that District Attorney [Robert Schuler] Smith is bringing this matter in his capacity as ‘the chief legal officer of the State of Mississippi,” the petition documents in an ironic comment about lack of standing that illustrates a presumption of non-existent authority and questionable legal competence on the part of both the DA and the Southern Poverty Law Center attorney backing the power grab.

“A district attorney is prohibited from bringing any suit the subject matter or impact of which would be statewide because only the Attorney General may bring such a suit of statewide importance,” the petition reminds the Court.

The Supreme Court has given Hinds County DA Robert Smith and the rest of the respondents until 5pm this afternoon to file their response.

I would not be surprised to the injunction vacated sometime tomorrow on standing grounds alone. I’ll post more as it becomes available.

UPDATE: Checking the docket of this case on the Mississippi Supreme Court’s website, it appears that the respondents/plaintiffs did submit their response by the end of the business day on Monday. Unfortunately, I’m not able to download their response to read it.

UPDATE II: Thanks to Jeff Pittman (see comments) we have the response by the gun prohibitionists. It can be found here.