It has been 274 days since oral argument took place in my California Open Carry lawsuit, Nichols v. Brown. We are still waiting on a final decision in Young v. Hawaii after which there will be a decision by the three-judge panel assigned to my appeal.
If SCOTUS grants a 2A cert petition before there is a final decision in my appeal here in the 9th circuit then my appeal, as well as any other 2A related case on appeal will be stayed pending a decision by SCOTUS. Given the glacial pace which the 9th circuit decides Second Amendment cases, it is more likely than not that this will happen. As such, this status page is not devoted exclusively to listing the latest docket entries to my appeal. As the judge made law of this circuit dictates that my Second Amendment challenge is dependent on the outcome of the Young v. Hawaii appeal because it was submitted for a decision three days before mine, I will be paying particularly close attention to that appeal.
Links to Second Amendment Cert Petitions Which are Pending before SCOTUS or Candidates for Cert
ROGERS et al v. GREWAL et al – New Jersey Handgun Carry Appeal 18-2366 – Waiting for the cert petition to be filed. Cert due by Thursday, December 20, 2018
Gould v. Morgan, No. 17-2202 (1st Cir. Nov. 2, 2018) – Massachusettes Handgun Carry Appeal – We are waiting to see if an en banc petition is filed first. I suspect the plaintiffs will go straight to SCOTUS.
This Status Page is for Updates from September 21, 2018, and Onward
The Next Three Links are to Archived California Open Carry Lawsuit Status Pages Prior to 9/21/2018
Update – November 7, 2018, – There are reportedly one million uncounted ballots in Arizona and so we might not know the result of that election until next week. If the Republican, McSally, wins then she can thank the presence of the Green Party candidate on the ballot just as Democrat Jon Tester can thank the presence of a Libertarian Party candidate on the ballot for his reelection in Montana.
In Florida, a spokesman for Democrat Senator Nelson said he had conceded and would make a statement today. Today, he is calling for a recount even though there is an automatic electronic recount if the margin of victory is less than half of one percent.
There is no chance of a recount in Indiana, Missouri or North Dakota where the Republican challengers handily defeated the Democrat incumbents.
Sadly, the same can be said of Nevada where the incumbent Republican senator was defeated.
The Democrats needed to pick up just 23 seats to win control of the House of Representatives, and they did. There are still seats where the outcome is not clear but it is clear that the Republicans will need to pick up less than 23 seats to regain control of the House in the next election and the Republicans will have more members in the House for the next two years than the Democrats had these past two years.
Looking back at midterm election results for a first-term president shows that Republicans lost, on average, fewer votes in the House and gained more seats in the Senate than any first-term midterm election since 1962:
And yet the mainstream Press is still proclaiming a triumphant victory for the Democrats.
Obama lost 63 seats in the House and lost 6 seats in the Senate in his first midterm election.
Clinton lost 54 seats in the House and lost 9 seats in the Senate in his first midterm election.
George H. W. Bush lost 8 seats in the House and 1 seat in the Senate.
Ronald Reagan lost 26 seats in the House with no change in the Senate.
Jimmy Carter won 1 seat in the House and lost 1 seat in the Senate.
In short, the Democrat “Blue Wave” the press has been touting for months is, at best, a blue whirl.
Update – November 5, 2018, – Just as I predicted, the Rothery v. Blanas cert petition was denied without a dissent. The next candidate is NYSRPA et al., v. City of New York et al, followed by Rogers et al v. Grewal et al and then Gould v. Morgan. The only one of the three which has a chance of being argued on the merits this year is the NYSRPA case, if its cert petition is granted. In ordered to be calendared for oral argument, the cert petition must be granted by the end of December. There is always the possibility that SCOTUS will grant a cert petition and kick it back to the lower courts for a do-over without oral argument. SCOTUS did that with the Caetano decision back in 2015.
James Rothery, et al. v. County of Sacramento, et al., – Concealed Carry – 09-16852 – En Banc Petition Denied – Cert Filed 7-26-2018 – Cert denied, November 5, 2018.
Update – November 4, 2018, – The list of SCOTUS watch decisions above has been increased by two: Rogers v. Grewal and Gould v. Morgan, both lost. Roger’s lost because the court granted the plaintiff’s’ unopposed motion to summarily affirm the judgment of the district court. Gould lost because the court of appeals held that the “core right” in Heller is limited to the home saying, “To sum up, we hold that the core right protected by the Second Amendment is — as Heller described it — “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” 554 U.S. at 635. Public carriage of firearms for self-defense falls outside the perimeter of this core right. ”
There is only one other SCOTUS Rule 10 court which has limited the Second Amendment “core right” to the home, the State of Maryland high court which held in 2011 “If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.” Williams v. State, 10 A. 3d 1167 – Md: Court of Appeals (2011) at 1177. (The Court of Appeals of Maryland is the supreme court of the U.S. state of Maryland.)
Update – November 1, 2018, – The likely confirmation of two more judges to the 9th circuit court of appeals will raise the number of votes required to grant an en banc petition, which in turn improves the chances of the Young v. Hawaii en banc petition being denied. There is no possibility of filling the remaining four vacancies before the voting period for the en banc petition in Young v. Hawaii ends. The confirmation of Judge Kavanaugh to the US Supreme Court increases the probability of a cert petition being granted in a 2A case. The best cert petition so far this term is the NYSRPA v. City of New York, et al (linked above). All we can do at this point is wait and see.
Update – October 17, 2018, – The Rothery v. Blanas (link above) cert petition has been scheduled for the SCOTUS conference of November 2nd.
Update – October 10, 2018, – The paper copy of my Amicus brief in Flanagan v. Harris was stamped received on October 9th but I was sent a notice of deficiency saying that I had failed to state that all parties had consented to the filing of my brief and so I have to file a motion within 14 days to file my Amicus brief. I have, of course, included the Rule 29 statement in the first paragraph of my Amicus Brief and again in the first sentence of the first paragraph of my Amicus brief argument that all parties had consented to my filing my Amicus brief (which means a motion is not necessary). I called the clerk’s office and was told that the docket will be corrected to show that my Amicus brief is filed on time. I was also told that the court policy has changed in regards to filing pro se paper copies of briefs (in this case it would be 7 paper copies). The new policy is that pro se filers no longer have to file paper copies of their briefs. We shall see. Also, I doubly hope that is true if this appeal, or my appeal, goes before an en banc panel. You don’t want to know how expensive it will be for me to print the required number of copies of my briefs and excerpts of records for the en banc panel. As my Amicus brief in Flanagan v. Becerra is only 13 pages in length, the expense is relatively small in comparison to what the printing and postage costs would be for the en banc paper copies in my appeal. EDIT UPDATE: The Clerk’s Office worked more quickly than I anticipated. The incorrect docket entry regarding my having to file a motion for my Amicus brief to be filed has been deleted. There is a new docket entry (25) stating that my Amicus brief has been filed and electronically served.
The following transaction was entered on 10/10/2018 at 4:44:33 PM PDT and filed on 10/09/2018
|Case Name:||Michelle Flanagan, et al v. Xavier Becerra|
Filed original and 0 copies of Charles Nichols amicus brief of 13 pages. Served via ECF on 10/09/2018.  (KT)
The following transaction was entered on 10/10/2018 at 4:24:12 PM PDT and filed on 10/09/2018
|Case Name:||Michelle Flanagan, et al v. Xavier Becerra|
COURT DELETED INCORRECT ENTRY. Notice about deletion sent to case participants registered for electronic filing. Correct Entry: . Original Text: Received original and 0 copies of Amicus Curiae – Pending Charles Nichols brief in 13 pages. Served via ECF on: 10/10/2018. Major deficiencies: Motion to file amicus brief required. Notified amicus.  (KT)
Update – October 5, 2018, – The US Senate voted to have a final vote on the Judge Kavanaugh confirmation hearing tomorrow, Saturday October 5th. I sent the Clerk of the Court a paper copy of my Amicus brief in Flanagan v. Harris today as well (don’t ask). Hopefully, on Monday we will have a newly minted Supreme Court Justice Kavanaugh and my Amicus brief filed in Flanagan v. Harris.
Update – October 1, 2018, – The Briefs in Opposition were filed today in James Rothery, et al. v. County of Sacramento, et al., – Concealed Carry – 09-16852 – En Banc Petition Denied – Cert Filed 7-26-2018
Update – September 27, 2018, – Judge Kavanaugh was voted out of committee today on a party line vote, 11-10. But after voting to advance his nomination in committee, Republican Senator Flake, who is retiring, said he could not vote to confirm Judge Kavanaugh without further investigation by the FBI. At last report, this pushes the confirmation vote by the full Senate off for another week.
Update – September 27, 2018, – I can’t decide whether Day 5 of the Judge Kavanaugh confirmation hearings was a Roman farce or a Greek tragedy. It was certainly a sign that we are teetering on the edge of civil war. As of this writing, the Senate Judiciary Committee confirmation vote is scheduled for tomorrow, Friday, September 28, beginning at 9:30 AM (ET). There is an old saying that a Conservative is a Liberal who has never been mugged. Judge Kavanaugh’s judicial philosophy is considered to be “conservative” by today’s standards but I believe that he is a liberal deep-down. Or at least he was. The Democrat thugs in the US Senate and the “mainstream” left-wing press have thoroughly raked him over the coals, keelhauled him, and kicked his teeth in.
I hope that he is confirmed.
I hope as well that he remembers how he has been treated when he has to decide close questions of law. Or even not so close questions of law. Government is evil. The acolytes of government don’t want him to be on the Supreme Court. I hope he remembers that for the rest of his life.