"Carry" Not A Core Right, Yet

A recently introduced bill in the California State Assembly, AB 144, once again will attempt to outlaw open carry of unloaded firearms. But this bill is quite different from AB 1934 introduced last year. AB 1934 sought to eliminate holstered handguns as an exception to the concealed weapon law, making open carry of an unload holstered pistol the same as carrying a concealed weapon, requiring a California CCW permit. In retrospect this would have created problems for all kinds of occupations that are armed in public, like armored car guards.

AB 144, in contrast, makes the open carry of an unloaded handgun in a public place a crime, a misdemeanor punishable by one year in jail and a fine that cannot exceed $1000. To get around the problems that AB 1934 might have caused, AB 144 specifies a very long list of occupational exceptions, allowing a large number of people to open carry handguns. Only ordinary citizens and criminals are, theoretically, prohibited.

A reader of Left Coast Conservative, asked me if I knew about AB 144, and if I thought that its passage into law would help the Peruta v. County of San Diego prevail. Chris P wrote:

BTW, did you hear about the new attempt to ban open carry (California AB 144)? I think this is gonna get interesting. I'm not sure how I feel about the open carry movement yet, but it was my understanding that the San Diego lawsuit regarding concealed carry had a lot to do with the open carry law. Anyway, I thought the ruling was that since California law allowed unloaded/open carry, self defense was not "good cause" to concealed carry. You think this will be significant? I'd like to hear your take on it.

This is, I think the part of the decision that gives Chris P his hopes that AB 144 might actually advance carry rights in California:

Accordingly, Defendant argues that concealed carry pursuant to Penal Code section 12050 is not the sole outlet for carrying a handgun for self defense. Defendant highlights other California provisions that permit unloaded open carry and loaded open carry if the individual is in immediate grave danger.

In other words, the Defendant's administration of the CCW policy is not subject to strict scrutiny because persons can avail themselves of other means to carry weapons for self defense. This inspires me to re-read the decision granting summary judgment to the defendant. What I found was this passage, on page 11:

Neither party has cited, and the Court is not aware of, a case in which a court has employed strict scrutiny to regulations that do not touch on the “core” Second Amendment right: possession in the home.9 If it exists, the right to carry a loaded handgun in public cannot be subject to a more rigorous level of judicial scrutiny than the “core right” to possess firearms in the home for self-defense. See Heller, 128 S. Ct. at 2717 (focusing on the home as the place “where the need for defense of self, family, and property is most acute”); McDonald, 130 S. Ct. at 3036 (quoting same). If anything, the opposite is true; unlike possession in the home, carrying a concealed firearm in public presents a “recognized threat to public order” and “poses an imminent threat to public safety.” People v. Yarbrough, 169 Cal. App. 4th 303, 313-14 (Cal. Ct. App. 2010) (quotation marks and citations omitted); see also McDonald, 130 S. Ct. at 3105 (Stevens, J., dissenting) (“firearms kept inside the home generally pose a lesser threat to public welfare as compared to firearms taken outside . . .”). At most, Defendant’s policy is subject to intermediate scrutiny.

So the first problem that Peruta has is that the judge does not recognize “carry” to be the core right protected by the 2^nd Amendment, so intermediate scrutiny is appropriate to judge the validity of the Defendant's policy. Once this is established the reasoning to grant the Defendant's motion is swift:

Accordingly, Defendant argues that concealed carry pursuant to Penal Code section 12050 is not the sole outlet for carrying a handgun for self defense. Defendant highlights other California provisions that permit unloaded open carry and loaded open carry if the individual is in immediate grave danger.

So, if AB144 is passed, the alternate means is no longer available, so that should open up the CCW policy for litigation, right? Perhaps not. Even though cases cited in Heller (State v. Chandler, Nunn v. State, Andrews v. State, State v. Reid), allowed concealed weapons bans because open carry was available, so the 2^nd Amendment right was not eliminated, passage and adoption of AB 144 will not eliminate the ability of citizens to carry weapons. CCW permits will still be available: apply and you may be issued a CCW permit.

Arbitrary and capricious administration of a CCW policy by a Sheriff will not be cited as unconstitutional until and unless “carry” is ruled to be a “core right” denoted by the 2^nd Amendment. Once “carry” is recognized as a core right, then AB 144 may be used to prevent arbitrary and capricious implementation of CCW policies in Califronia.

For more information about current litigation, please refer to the Calguns Foundation Litigation Past and Present page, your one-stop-shop for guns rights litigation information.

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UPDATE 2/19/2011:

Maybe I am wrong about what effect passage of AB 144 might have on litigation to liberalize CCW policies.  Take a look at this passage from the Pasadena Weekly:

Here in California, where a bill to prohibit gun owners from publicly carrying unloaded weapons in plain sight is set for debate in the state Assembly, gun rights advocates also doubt that ability. They say the bill, sponsored by Assemblyman Anthony Portantino, D-La Cañada Flintridge, would instead force jurisdictions to issue concealed weapons permits to practically all comers, given recent court rulings affirming the people’s right to bear arms.

“I’m not sure they appreciate the legal can of worms they are opening here,” said Chuck Michel, spokesman for the California Rifle & Pistol Association.

 If Chuck Michel thinks AB 144 might bust things open, I am inclined to take him at his word.

Doubt Cast on High Speed Rail Cost

It is possible that the cost of the California High Speed Rail project will be even higher that has been estimated. Californians Advocating Responsible Rail Design, a volunteer watchdog group, has released their own cost estimates for the project. They calculate that $65 billion is a more realistic figure than the $43 billion released by the California High Speed Rail Authority. 

Once again doubt is cast on the sunny predictions of a government entity. Which is more likely to be correct?

Top Shot Is Back!

Now for something fun: Top Shot is back this week!

And it seems that they have corrected a deficiency from last season: the lack of the Model 1911 pistol in the show.  Their go to semi-automatic pistol was the Baretta 92FS, a good gun, but not the American gun!

Am I prejudiced?  You bet I am!  I love the 1911.  If you love some other gun, set up your own blog and write about it there.

You know, Top Shot has also ignored Glock pistols so far.  Maybe they're saving them for season three?

HighSpeed Rail - Probable money Loser

It seems that it is not only Californians that are drinking the high speed rail Kool Aid, but also President Obama.

I see high speed rail passenger service to be nothing more than a desperate attempt for a 19th Century technology to remain relevant in the 21st Century.  There is already a way to go from San Jose to Los Angeles in about an hour, and the California tax payers don't have to spend billions of dollars to create it: it is called an airline.  


Southwest Airlines offers flights between San Jose and Los Angeles for as low as $74 one way for 1:15 flight time.  California High Speed Rail projects the same trip will take 2:09 and cost as much as $42. So, save $32, but spend an hour more on the trip?

Seems like an okay trade off, but will the fares always be so competitive or cover the costs of the rail system?  This is an open question, and looking at systems around the world only two high speed rail systems break even on operating costs:

“High-speed rail is good for society and it’s good for the environment, but it’s not a profitable business,” said Mr. Barrón of the International Union of Railways. He reckons that only two routes in the world — between Tokyo and Osaka, and between Paris and Lyon, France — have broken even.

The track record in this country for providing conventional rail service does not bode well for high speed rail.  Amtrack, even on densely populated urbane corridors, survives only because of massive subsidies.  What makes us think that California can do any better?  Maybe the California High Speed Rail Authority should get a railroad executive from a private company to come in to manage this project.

Oh, yeah.  There aren't any.

UPDATE: 2/12/2011 12:36 PM

The Wall Street Journal had this story in December, 2010 which described the first section to be built will be 65 miles long at a cost of $4.3 billion.  Do the math: this is $66 million per mile.  Who the fuck cares how much carbon this project saves at that price?

The main 520 mile line has an estimated cost of  $42.6 billion, which works out to $81.9 million per mile of track, so I guess that economies of scale do not apply to railroads.

Our elected officials are on crack.

Green Jobs - Economic Boondoggle

I have been skeptical of the reliance of many politicians on creation of "green jobs" to help save the economy.  Reason has a new article out that adds weight to my suspicions:

Gulen is not alone in his concerns about overblown claims for green jobs. A 2009 report [PDF], by Hillard Huntington, executive director of the Energy Modeling Forum at Stanford University, also found that promoting green energy is not a jobs generator. Huntington calculated the number of jobs per million dollars invested in various types of electricity generation. A million dollars invested in solar power produces three to five jobs; wind 1.6 to 6.5 jobs; biomass 1.8 to 6.5 jobs; coal 3.7 jobs; and natural gas two jobs. It looks like renewables are often winners at job creation until Huntington points out that on average an investment of a million dollars produces about 10 jobs.

Another way to look at it is that in the worst cases, investing in solar power destroys seven jobs, wind eight jobs, biomass eight jobs, coal six jobs, and natural gas eight jobs, each compared to the 10 jobs generally created per million dollars of investment. All subsidies to the electric power sector divert money that would otherwise be invested in higher value wealth and job-creating activities.

 This leads me to understand why energy in California costs so much in comparison with other states.

At Least One Leftie Gets It

Dan Baum, in this article at the Huffington Post shows that at least one leftie gets it about gun control:

I'm not one for slinging statistics, because everybody can read into them what he wants to see. One, though, seems pretty hard to ignore: The rates of murder and other violent crime have dropped by about half in the past 20 years -- one piece of unalloyed good news out of the past two decades. During those same 20 years, gun ownership has gone way up, and gun laws have become far looser. 

Gun guys are convinced there's a causal relationship -- they say that criminals become timid in the face of an armed citizenry. I think the crime drop has more to do with changing demographics and smarter policing. Either way, it is obvious that more guns and looser gun laws did not cause crime to rise. We on the left, who have an impulse toward ever tighter gun laws, need to look squarely at that. If what we want to do is reduce violent crime, perhaps we should continue what we're doing. While it may be true that nothing can be done to keep guns out of the wrong hands, it is plainly false that nothing can be done to reduce violence. Lots is being done, and quite successfully. It just doesn't involve restricting guns.

I myself have written about this as well, but it is just terrific to see a liberal Democrat admit that gun control does not work. While more guns may not result in less crime, the last 20 years has shown that more guns does not necessarily lead to more crime. Now the left will have to come up with something more creative than a simple knee-jerk reaction.

Local Groups Drive Gun Rights Litigation - Not The NRA

The left wing press always gets this wrong: the NRA is the source of all evil pro-gun developments in the United States. The reality is that the NRA, while an extremely effective lobbying and legislative organization, its record for litigation is thin, at best. Most of the recent landmark litigation concerning gun rights (District of Columbia v. Heller, McDonald v. City of Chicago) are the result of the efforts of grass-roots organizations like the Second Amendment Foundation, the Calguns Foundation, and the Illinois State Rifle Association. These organization, and those like them in other states, have been doing the heavy lifting over the last ten years ot so to further gun rights in the United States.

In the past on this blog I have attempted to follow the various cases that are in progress, but in the aftermath of Heller, so many cases were filed that it overwhelmed my capacity to monitor the progress and post it to Left Coast Conservative. Fortunately, this is no longer necessary. The Calguns Foundation has a wonderful web page that not only lists the current status of pending litigation, but also established case law and Supreme Court decisions, and even has a primer describing how the federal courts work. Everyone who has an interest in the current status of gun rights litigation should consult this page often because it is updated regularly.

Once again, the grass-roots organizations are carrying the heavy load to further gun rights by educating gun owners. While I do not want to belittle the efforts of the NRA, they is not the whole story. And when one realizes the extent of different groups that promote gun rights, I cannot help but be optimistic.