I was gratified to have an attorney ask me to be an expert witness in a case in California. California recently licensed open carry. You did not know it had been legal? Yes, outside cities in most of the state. But no more. So in Baird v. Becerra (E.D.Cal. 2019) there is a challenge to this law. The California Attorney-General is defending this law, as they are required to do. But their defense included these claims:
1. The 2nd Amendment does not protect a right to open carry.
2. State supreme court decisions before the Civil War that seem to regard open carry as protected, also claimed that open carry was unusual.
3. California has never been bound by the 2nd Amendment.
For the first claim, they reached back to the Statute of Northampton (1328), which has been translated from Norman French as banning the carrying of arms. And then they pointed to laws in the early Republic that they claimed banned open carry. So I started looking up these laws. The Statute of Northampton banned the wearing of armor, as many of the sources they cited admit. Some were explicit that the carrying of arms was not prohibited by the Statute of Northampton.
Most of the laws in the early republic that they claimed banned open carry did this do not exist. I looked up all these old laws and most of them had nothing to do with carrying of arms. The only one that did exist where they claimed it did appears to have been repealed or overturned by the courts. At least court decisions that would have referenced that law in Tennessee make no mention of it.
The state supreme court decisions they cited seem to be intentional fraud. Two words quoted here, three words here, cobbled together to completely change the meaning of the decision.
Concerning claim 3, I found discussion at the California Constitutional Convention of 1850 about whether a right to keep and bear arms was needed. The answer was that the 2nd Amendment already provided that protection. Best of all, the California Legislature apologized in 2009 for taking away “the right to keep and bear arms” from Chinese immigrants.
It was loads of fun to research and write and I was paid handsomely to do so. Whether we win or not, remains an interesting question. Facts do not much matter in these sort of disputes. If you want to read my expert witness statement: http://claytoncramer.com/Declaration%20of%20Clayton%20Cramer%2010%201%202019.pdf.