Zeleny Filed Opening Brief

Case: 22-15870, 06/25/2024, ID: 12893333, DktEntry: 27, Page 1 of 68
No. 22-15870
In the United States Court of Appeals

for the Ninth Circuit
MICHAEL ZELENY,
Plaintiff-Appellant,
v.
ROB BONTA, California Attorney General, in his official capacity,

Defendant-Appellee,
and
CITY OF MENLO PARK, a municipal corporation; DAVE BERTINI, an individual,

in his official capacity; NEW ENTERPRISE ASSOCIATES, INC.,
a Delaware corporation,
Defendants.
Appeal from a Judgment of United States District Court of the

Northern District of California Case No. 3:17-cv-07357-RS
Honorable District Court Judge Richard G. Seeborg
Appellant’s Opening Brief
Alan Alexander Beck

[email protected]
2692 Harcourt Drive
San Diego, CA 92123
Phone: (619) 905-9105
Attorney for Appellant

TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION .................................................................................................... 1
JURISDICTIONAL STATEMENT ......................................................................... 3
STATEMENT OF THE ISSUES FOR REVIEW .................................................... 3
STATEMENT OF THE CASE ................................................................................. 3
I. California Law Generally Prohibits the Unloaded Open Carry of

Firearms .......................................................................................................... 3
II. Procedural History .......................................................................................... 5
A. Plaintiffs’ Constitutional Challenge to California’s Open Carry

Ban ........................................................................................................ 5
B. The District Court’s Grant of Defendant’s Motion for Summary

Judgment and Entry of Judgment ......................................................... 5
1. Summary of the District Court’s Order ..................................... 6
SUMMARY OF THE ARGUMENT ....................................................................... 7
ARGUMENT .......................................................................................................... 12
I. Standard of Review....................................................................................... 12
II. California’s Open Carry Ban Violates the Second Amendment .................. 13
A. Plaintiff’s Conduct is Covered by the Second Amendment’s

Plain Text ........................................................................................... 14
B. California Must Identity a Historical Analogue to Its Open Carry

Ban ...................................................................................................... 18
C. There is no Historical Tradition of Prohibiting Open Carry .............. 21
i
D. Cal. Pen. Code § 26400 Violates the Second Amendment Even

if Cal. Pen. Code § 26350 is Found Constitutional ............................ 26
E. Long Guns Are Arms Protected by the Second Amendment ............ 32
F. California’s Ban on Long Arm Carry Violates the Second

Amendment ........................................................................................ 38
G. The Entertainment Exemption Violates Equal Protection ................. 39
1. Mr. Zeleny’s Equal Protection Claim Implicates both First

Amendment and Second Amendment Conduct ....................... 41
III. CONCLUSION............................................................................................. 52
STATEMENT OF RELATED CASES .................................................................. 53
CERTIFICATE OF COMPLIANCE ...................................................................... 54
CERTIFICATE OF SERVICE ............................................................................... 55
ii
TABLE OF AUTHORITIES
CASES
Albino v. Baca,
747 F.3d 1162 (9th Cir. 2014) .............................................................................13
Andrews v. State,
50 Tenn. 165 (1871)...............................................................................................9
Arizona Dream Act Coalition v. Brewer,

757 F.3d 1053 (9th Cir. 2014) .............................................................................40
Ashaheed v. Currington,
7 F.4th 1236 (10th Cir. 2021) ..............................................................................51
Aymette v. State,
21 Tenn. (2 Hum.) 154 (1840) .............................................................................24
Baird v. Bonta,
2023 U.S. App. LEXIS 23760 (9th Cir. Sep. 7, 2023) ........................................27
Baird v. Bonta,
81 F.4th 1036 (9th Cir. 2023) ..............................................................8, 18, 20, 21
Branzburg v. Hayes,
408 U.S. 665 (1972) .................................................................................11, 42, 46
Broussard v. Univ. of Cal. at Berkeley,

192 F.3d 1252 (9th Cir. 1999) .............................................................................13
Brown v. Entm’t Merchs. Ass’n,

564 U.S. 786 (2011) .............................................................................................28
Caetano v. Massachusetts,
577 U.S. 411 (2016) .......................................................................................27, 37
Celotex Corp. v. Catrett,

477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).....................................13
iii
Christopher Lake Dev. Co. v. St. Louis County,

35 F.3d 1269 (8th Cir. 1994) ...............................................................................50
City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) .......................................................................................48, 49
Clark v. Community for Creative Non-Violence,

468 U.S. 288 (1984) .............................................................................................42
Del Monte Dunes at Monterey, Ltd. v. City of Monterey,

920 F.2d 1496 (9th Cir. 1990) .............................................................................50
District of Columbia v. Heller,

554 U.S. 570 (2008) ..................................................... 8, 9, 14, 16, 18, 20, 23, 24,
27, 29, 30, 31, 32, 33, 37, 38
In re Eric J.,
25 Cal. 3d 522 (1979) ..........................................................................................49
Espinoza v. Montana Department of Revenue,

140 S. Ct. 2246 (2020) .........................................................................................19
Fowler Packing Co., Inc. v. Lanier,

844 F.3d 809 (9th Cir. 2016) ...............................................................................50
Gitlow v. People of State of New York,

268 U.S. 652 (1925) .............................................................................................45
Heller v. District of Columbia,

670 F.3d 1244 (2011)...........................................................................................33
Kachalsky v. Cnty. of Westchester,

701 F.3d 81 (2d Cir. 2012) ..................................................................................22
Kennedy v. Louisiana,
554 U.S. 407 (2008) .............................................................................................19
Knox v. Brnovich,
907 F.3d 1167 (9th Cir. 2018) .......................................................................42, 43
iv
Lawrence v. Texas,
539 U.S. 558 (2003) .............................................................................................48
Local 144 Nursing Home Pension Fund v. Demisay,

508 U.S. 581 (1993) .............................................................................................31
Mass. Bd. of Retirement v. Murgia,

427 U.S. 307 (1976) ...........................................................................10, 11, 45, 46
McDonald v. Chicago,
561 U.S. 742, 130 S. Ct. 3020, 177 L.Ed.2d 894 (2010).....................................33
Merrifield v. Lockyer,
547 F.3d 978 (9th Cir. 2008). ........................................................................49, 50
Metro. Life Ins. Co. v. Ward,

470 U.S. 869 (1985) .............................................................................................50
N.Y. State Rifle & Pistol Ass’n v. Bruen,

142 S. Ct. 2111 (2022) ................................ 7, 8, 13, 14, 15, 18, 19, 20, 27, 28, 37
New York State Rifle & Pistol Assn., Inc. v. Bruen,

597 U.S. 1 (2022) ...................................... 2, 21, 22, 25, 28, 29, 30, 31, 32, 33, 38
New York State Rifle & Pistol Ass’n v. Cuomo,

804 F.3d 242 (2d Cir. 2015) ................................................................................32
Nunez v. Davis,
169 F.3d 1222 (9th Cir. 1999) .............................................................................42
Nunn v. State,
1 Ga. 243 (1846) ..........................................................................................8, 9, 24
Oakland Tactical Supply, LLC v. Howell Township, Michigan,

No. 23-1179, 2024 WL 2795571 (6th Cir. May 31, 2024)..................................34
Parr v. Mun. Ct.,

3 Cal. 3d 861 (1971) ............................................................................................51
v
People v. Miller,
312 Cal. Rptr. 3d (Cal. App. 3d Dist. 2023) ........................................................26
Peruta v. Cnty. of San Diego,

824 F.3d 919 (9th Cir. 2016) .........................................................................17, 25
Peterson v. Martinez,
707 F.3d 1197 (10th Cir. 2013) ...........................................................................22
Rinaldi v. Yeager,
384 U.S. 305 (1966) .............................................................................................49
Robertson v. Baldwin,
165 U.S. 275 (1897) .............................................................................................22
St. Joseph Abbey v. Castille,

712 F.3d 215 (5th Cir. 2013) ...............................................................................50
Silveira v. Lockyer,
312 F.3d 1052 (9th Cir. 2002) .................................................................11, 12, 47
State v. Buzzard,
4 Ark. 18 (1842) ................................................................................................... 24
State v. Chandler,
5 La. Ann. 489 (1850) ......................................................................................9, 25
State v. Mitchell,
3 Blackf. 229 (Ind. 1833) .....................................................................................23
State v. Reid,
1 Ala. 612 (1840) .......................................................................................9, 23, 24
Thornton v. City of St. Helens,

425 F.3d 1158 (9th Cir. 2005) .............................................................................40
Trister v. Univ. of Miss.,

420 F.2d 499 (5th Cir. 1969) ...............................................................................51
vi
United States v. Alaniz,

69 F.4th 1124 (9th Cir. 2023) ..................................................................29, 30, 31
U.S. v. Duarte,
101 F.4th 657 (9th Cir. 2024) ..............................................................................15
United States v. Henry,

688 F.3d 637 (9th Cir. 2012) .........................................................................36, 37
United States v. O’Brien,

391 U.S. 367 (1968) .............................................................................................44
United States v. Pedregon,

520 F.App’x 605 (9th Cir. 2013) .........................................................................31
U.S. v. Perez-Garcia,
96 F.4th 1166 (9th Cir. 2024) ....................................................................8, 15, 28
United States v. Pinjuv,

218 F.3d 1125 (9th Cir. 2000) .............................................................................31
United States v. Rahimi,

No. 22-915, 2024 WL 3074728 (U.S. June 21, 2024) .............................21, 33, 34
United States v. Stevens,

559 U.S. 460 (2010) .............................................................................................28
United States Dep’t of Agric. v. Moreno,

413 U.S. 528 (1973) .................................................................................12, 48, 50
United States v. Verdugo-Urquidez,

494 U.S. 259, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990) ..................................14
Ward v. Rock Against Racism,

491 U.S. 781 (1989) .............................................................................................42
Washington v. Glucksberg,
521 U.S. 702 (1997) .............................................................................................45
vii
Worth v. Harrington,
2023 WL 2745673 (D. Minn. Mar. 31, 2023) .....................................................18
Wynn v. N.Y.C. Hous. Auth.,

2015 WL 4578684 (S.D.N.Y. July 29, 2015) ......................................................51
Young v. Hawai‘i,
992 F.3d 765 (9th Cir. 2021) .............................................................................2, 6
Young v. Hawaii,
142 S. Ct. 2895 (2022) .......................................................................................2, 7
Zablocki v. Redhail,
434 U.S. 374 (1978) .......................................................................................10, 46
STATUTES AND REGULATIONS
18 U.S.C. § 922(g)(8)...............................................................................................21
28 U.S.C. § 1291 ........................................................................................................3
28 U.S.C. § 1331 ........................................................................................................3
28 U.S.C. § 1343 ........................................................................................................3
28 U.S.C. § 2201 ........................................................................................................3
28 U.S.C. § 2202 ........................................................................................................3
42 U.S.C. § 1983 ........................................................................................................3
42 U.S.C. § 1988 ........................................................................................................3
Act of Feb. 1, 1839, ch. 77, 1839 Ala. Acts ............................................................22
Act of Apr. 1, 1881, ch. 96, § 1, 1881 Ark. Acts .....................................................22
Act of Feb. 1, 1881, 1881 Colo. Sess. Laws ............................................................22
Act of Feb. 12, 1885, ch. 3620, 1885 Fla. Laws ......................................................22
viii
Act of Apr. 16, 1881, 1881 Ill. Laws .......................................................................22
Act of Jan. 14, 1820, ch. 23, 1820 Ind. Acts............................................................22
29 Ky. Gen.Stat. art. 29, § 1 (as amended through 1880) .......................................22
Act of Mar. 25, 1813, 1813 La. Acts .......................................................................22
1866 Md. Laws, ch. 375, § 1....................................................................................22
Neb. Gen.Stat., ch. 58, ch. 5, § 25 (1873) ................................................................22
Act of Mar. 5, 1879, ch. 127, 1879 N.C. Sess. Laws ..............................................22
N.D. Pen.Code § 457 (1895) ....................................................................................22
Act of Mar. 18, 1859, 1859 Ohio Laws .............................................................22, 23
Act of Feb. 18, 1885, 1885 Or. Laws ......................................................................23
Act of Dec. 24, 1880, no. 362, 1881 S.C. Acts ........................................................23
S.D. Terr. Pen.Code § 457 (1883) ...........................................................................23
Act of Apr. 12, 1871, ch. 34, 1871 Tex. Gen. Laws ................................................23
Act of Oct. 20, 1870, ch. 349, 1870 Va. Acts ..........................................................23
Wash.Code § 929 (1881) .........................................................................................23
W. Va.Code, ch. 148, § 7 (1891) .............................................................................23
Cal. Pen. Code § 22210............................................................................................31
Cal. Pen. Code § 25850........................................................................................4, 27
Cal. Pen. Code § 26045............................................................................................17
Cal. Pen. Code § 26150..............................................................................................4
ix
Cal. Pen. Code § 26155..............................................................................................4
Cal. Pen. Code § 26350....................................................................................3, 5, 26
Cal. Pen. Code § 26375..............................................................................................4
Cal. Pen. Code § 26400....................................................................................3, 5, 26
Cal. Pen. Code § 26405(r)..........................................................................................4
RULES
Fed. R. App. P. 4(a)(1)(A) .........................................................................................3
Fed. R. Civ. P. 56(a)...........................................................................................12, 13
OTHER AUTHORITIES
Black’s Law Dictionary (8th ed. 2004) ...................................................................31
Black’s Law Dictionary (9th ed. 2009) ...................................................................36
Capt. Randolph Barnes Marcy, The Prairie Traveler (1859)...................................38
Clayton E. Cramer, Concealed Weapon Laws of the Early Republic (1999) ......... 23
Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American
Origins of Gun Control, 73 Fordham L.Rev. 487 (2004) ...................................22
English, William, 2021 National Firearms Survey (July 14, 2021). Georgetown
McDonough School of Business Research Paper No. 3887145, Available at
SSRN: https://ssrn.com/abstract=3887145 or
http://dx.doi.org/10.2139/ssrn.3887145 .........................................................16, 34
English, William, 2021 National Firearms Survey: Updated Analysis Including

Types of Firearms Owned (May 13, 2022). Georgetown McDonough School of
Business Research Paper No. 4109494, Available at SSRN:
https://ssrn.com/abstract=4109494 or http://dx.doi.org/10.2139/ssrn.4109494 .. 37
Fouts v Bonta 24-1039 Doc. No. [7] (Defendant Bonta’s Opening Brief) ............. 29
x
https://en.wikipedia.org/wiki/Rifle ..........................................................................35
https://en.wikipedia.org/wiki/Rifled_musket...........................................................35
https://money.cnn.com/2010/03/04/news/companies/Starbucks_gun_policy/........ 16
https://www.cbsnews.com/news/gun-fans-cheer-starbucks-policy/ ........................16
https://www.csmonitor.com/USA/2010/0227/Guns-at-Starbucks-Pushing-the-right-
to-bear-arms-in-public .........................................................................................17
https://www.nssf.org/wp-content/uploads/2020/11/IIR-2020-Firearms-Production-
v14.pdf .................................................................................................................34
https://www.ojp.gov/pdffiles/165476.pdf ................................................................34
https://www.youtube.com/watch?v=aElZkvsh_6o ....................................................1
Kleck & Gertz, Armed Resistance to Crime, 86 J.Crim. L. & C. 150 (1995).........16
Lansford Warren Hastings, The Emigrant’s Guide to Oregon and California

(1845) ...................................................................................................................38
Mark W. Smith, ‘Not all History is Created Equal’: In the Post-Bruen World,
the Critical Period for Historical Analogues Is when the Second Amendment
Was Ratified in 1791, and not 1868, SSRN, Oct. 1, 2022,
https://bit.ly/3CMSKjw........................................................................................18
Michel, C.D. and Moros, Konstadinos (2024) “Restrictions “Our Ancestors Would
Never Have Accepted”: The Historical Case Against Assault Weapon Bans,”
Wyoming Law Review: Vol. 24: No. 1, Article 3. Available at:
https://scholarship.law.uwyo.edu/wlr/vol24/iss1/3 ...............................................9
U.S.S.G. §2D1.1(b)(1) .......................................................................................29, 30
xi
W. Hays Parks, “Joint Service Combat Shotgun Program. The Army Lawyer 17
(Oct 1997), available at http://lawofwar.org/Parks_Combat_Shotguns.htm ; also
at
https://tjaglcs.army.mil/DesktopModules/Bring2mind/SimpleDownloads/Downl
oad.aspx?tabid=34&mid=604&file=The+Army+Lawyer%5C1997%5C10+-
+October+1997%5C1997-Oct-Parks-
Joint+Service+Combat+Shotgun+Program.pdf ..................................................36
xii
INTRODUCTION
Michael Zeleny appeals from the district court’s grant of summary judgment
to the Defendant Rob Bonta, in his Official Capacity as the Attorney General for the
State of California (“California”) in his challenge to the State of California’s ban on
the open carry of firearms. Mr. Zeleny is a published author, editor, and translator,
an internationally renowned blogger, accomplished scholar in logic, history,
literature, law, and technology, and an independent performance artist and film-
maker. 2 ER 123. He is also a firearms historian and author. Id. Zeleny holds a
California Certificate of Eligibility to possess firearms, and a Type 08 Federal
Firearms License, allowing him to import “curio and relic” handguns, among other
things. Id. Zeleny collects rare, unique, and historically significant guns. Id.
Prior to 2012, it was legal for Californians to openly carry unloaded firearms.
And it was legal to carry ammunition on one’s person as long as it was not loaded
in the firearm.1 Prior to 2012, Mr. Zeleny lawfully carried firearms openly while
engaged in protests. Id. He stopped doing so after being criminally targeted. 2 ER
123. Also in 2012, California banned the unloaded open carry of firearms. Mr.
Zeleny wishes to resume carrying firearms for purposes of lawful self-defense while
engaged in protests. 2 ER 125. These protests are against New Enterprise Associates
1
An example of this is in this news video.
https://www.youtube.com/watch?v=aElZkvsh_6o
1
(“NEA”), a venture capital fund in Menlo Park. 2 ER 123. The subject matter of
these protests are the credible allegations of child rape made against Min Zhu who
is the founder of WebEx Communications and the NEA’s continued finance of him.
2 ER 123. As part of his protests, he plans to present a multimedia performance of
images and animations, and to display rare firearms, posters, placards, and other
materials. He intends to film his performance and the reaction of passersby as part
of an Internet video production and documentary film. 2 ER 124.
At the time of the trial court’s ruling, it was bound by this Court’s prior
precedent in Young v. Hawai‘i, 992 F.3d 765, 813 (9th Cir. 2021) which held “that
government regulation on open carry . . . fall[s] outside the Second Amendment’s
scope, and thus may be upheld without further analysis.” Since then, Young was
vacated by the U.S. Supreme Court. See Young v. Hawaii, 142 S. Ct. 2895 (2022).
And the U.S. Supreme Court issued its landmark opinion in New York State Rifle &
Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 27 (2022). The trial court also ruled against
Mr. Zeleny on an equal protection claim due to this precedent because it found
carrying a firearm is not a fundamental right and that there was no expressive activity
at issue. Both these rulings are clearly in error due to the Supreme Court’s recent
ruling in Bruen. This Court should rule in Mr. Zeleny’s favor on all his claims.
2
JURISDICTIONAL STATEMENT
The district court had jurisdiction over this action pursuant to 28 U.S.C.
§§ 1331, 1343, 2201, 2202 and 42 U.S.C. § 1983 and § 1988. This Court has
jurisdiction over this appeal under 28 U.S.C. § 1291.
The district court’s final judgment was entered on May 2, 2022. See 1 ER 2.
The Appellants timely filed a notice of appeal on June 1, 2022. See 3 ER 420; See
also Fed. R. App. P. 4(a)(1)(A).
STATEMENT OF THE ISSUES FOR REVIEW
1. Does California’s restrictions on the unloaded open carry of firearms violate
the Second Amendment as made applicable to California by the Fourteenth
Amendment?
2. Does California’s entertainment exemption to the open carry of firearms
violate the Equal Protection Clause of the 14th Amendment.
STATEMENT OF THE CASE
I. California Law Generally Prohibits the Unloaded Open Carry of

Firearms
California Penal Code 26350 provides, in pertinent part: A person is guilty of
openly carrying an unloaded handgun when that person carries upon his or her
person an exposed and unloaded handgun. Cal. Pen. Code § 26400 has a similar
prohibition for firearms other than handguns. California law allows for the issuance
3
of open carry permits to those living in counties which have less than 200,000
people. See California Penal Code sections 26150, 26155. However, this exemption
does not apply to Mr. Zeleny because he is a resident of Los Angeles which has a
population of more than 200,000. 2 ER 125. Loaded open carry is prohibited by
California Penal Code section 25850. Thus, California law amounts to a complete
ban on his right to openly carry a firearm. These laws amount to an unconstitutional
infringement on Mr. Zeleny’s Second Amendment rights. Mr. Zeleny has sworn
that “I would carry firearms in non-sensitive public places” but for the laws at issue
here. 2 ER 125. California’s ban on unloaded open carry is challenged in this
lawsuit. California does have an “entertainment exemption” to its Open Carry Ban
which Mr. Zeleny also challenges.
Open carry is permitted “by an authorized participant in ... a motion picture,
television or video production, or entertainment event, when the participant lawfully
uses the [firearm] as part of that production or event.” Cal. Pen. Code § 26375; Cal.
Penal Code § 26405(r). The Penal Code does not define “authorized participant,”
“motion picture, television, or video production,” or “entertainment event.” It does
not specify who does the authorizing. Neither does it mention any criteria for
authorization. See Cal. Pen. Code §§ 26375, 26405(r).
Mr. Zeleny has sought an exemption pursuant to these statutes. 2 ER 124 On
its face, the exemption applies to Zeleny using firearms as part of a multimedia
4
performance, which he intends to film and distribute as a movie on the Internet.
However, he was denied a permit. 2 ER 124. This exemption violates equal
protection because it implicates constitutionally protected activity and
impermissibly treats Mr. Zeleny differently from others. Thus, these laws violate
equal protection.
II. Procedural History
A. Plaintiffs’ Constitutional Challenge to California’s Open Carry

Ban
Mr. Zeleny filed this lawsuit on December 28, 2017. 3 ER 425. He
subsequently amended his complaint and the operative Complaint for Declaratory
and Injunctive Relief was filed on August 30, 2019. 3 ER 434. In relevant part, the
Amended Complaint asserted that California’s ban on open carry is unconstitutional
and sought an Order declaring California Penal Code §§ 26400 and 26350
unconstitutional. 3 ER 414. The Complaint also sought injunctive relief via an Order,
preliminarily and permanently enjoining the Defendants from enforcing the
offending statutes. 3 ER 415.
B. The District Court’s Grant of Defendant’s Motion for Summary

Judgment and Entry of Judgment
On January 21, 2021, Mr. Zeleny filed his Motion for Partial Summary
Judgment against California/its Attorney General. 3 ER 441. California filed its
Motion for Summary Judgment on all claims on January 21, 2020. 3 ER 441. After
briefing, on July 13, 2021, the district court issued an Order Granting in Part and
5
Denying Plaintiffs’ Motion for Summary Judgement2 and Defendant’s Motion for
Summary Judgment, 1 ER 4, and entered judgment. See 1 ER 3.
Summary of the District Court’s Order
The district court upheld California’s on unloaded open carry because of what
was at the time binding precedent from this Court.
At the time of their filing, the instant motions contemplated Zeleny’s

blanket Second Amendment challenge to California’s open carry ban.
Since then, the Ninth Circuit has held “that government regulation on
open carry . . . fall[s] outside the Second Amendment’s scope, and thus
may be upheld without further analysis.” Young v. Hawai‘i, 992 F.3d
765, 813 (9th Cir. 2021) (internal quotation marks and citation
omitted). “[R]espectfully disagree[ing] with” this decision, Zeleny
nevertheless recognizes that, before this Court, Young is “dispositive of
[his] broad claim that California’s Open Carry Ban violates the U.S.
Constitution.”
See 1 ER 11
The trial court’s dismissal of Mr. Zeleny’s Equal Protection claim flowed
from its Second Amendment ruling and a First Amendment ruling Mr. Zeleny does
not challenge on appeal. “[T]he “entertainment event” exemption does not “proceed
along suspect lines . . . [or] infringe[] [a] fundamental constitutional right[][.]” 1 ER
15. “To the degree Zeleny’s motion seeks judgment of his entitlement to relief under
the Equal Protection Clause, it is denied.” Id.
2
In the trial court, Mr. Zeleny prevailed on some of his claim against a separate
Defendant, Menlo Park, who is not a party to this appeal.
6
The district court entered final judgment in favor of Defendant-Appellee on
May 2, 2022. See 1 ER 2.
SUMMARY OF THE ARGUMENT
Mr. Zeleny wishes to openly carry firearms. The State of California bans the
open carry of firearms. This ban violates the Second Amendment. The precedent
which required the trial court to rule against Mr. Zeleny has now been vacated by
the U.S. Supreme Court. See Young v. Hawaii, 142 S. Ct. 2895 (2022). The Supreme
Court’s decision in N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022)
compelled this result.
To determine whether a state’s restriction is constitutional, the Court in Bruen
explained that “the standard for applying the Second Amendment is as follows: When
the Second Amendment’s plain text covers an individual’s conduct, the Constitution
presumptively protects that conduct. The government must then justify its regulation
by demonstrating that it is consistent with the Nation’s historical tradition of firearm
regulation.” 142 S. Ct. at 2129–30. It is the State’s burden to “affirmatively prove that
its firearms regulation is part of the historical tradition that delimits the outer bounds
of the right to keep and bear arms.” Id. at 2127; see also id. at 2150 (“[W]e are not
obliged to sift the historical materials for evidence to sustain New York’s statute. That
is respondents’ burden.”). If the State fails to meet its burden, then the State’s
restrictions must be enjoined.
7
Plaintiff is an American who seeks to carry bearable arms. As in Bruen, these
undisputed facts end the textual inquiry: “the plain text of the Second Amendment
protects [Plaintiff’s] proposed course of conduct—carrying handguns publicly for
self-defense.” 142 S. Ct. at 2134. Accordingly, under Bruen’s unambiguous
directions, “the burden falls on [the State] to show that [the challenged ban] is
consistent with this Nation’s historical tradition of firearm regulation.” Id. at 2135.
The “central” consideration in this analysis is whether, when compared to a modern
regulation, the historical precedent imposed a “comparable burden” on the right of
armed self-defense and was “comparably justified.” U.S. v. Perez-Garcia, 96 F.4th
1166, 1181 (9th Cir. 2024). California “must identify a historical analogue that
curtails the right to peaceably carry handguns openly for self-defense to a
comparable degree, with a comparable severity, and with a comparable blanket
enforcement.” Baird v. Bonta, 81 F.4th 1036, 1047 (9th Cir. 2023).
Here, there is no historical tradition of restricting the open carry of firearms.
In fact, historically the concealed carry of firearms was restricted, and open carry
was the typical manner by which Second Amendment rights were exercised. The
Georgia Supreme Court’s decision in Nunn v. State, 1 Ga. 243 (1846), lauded by
Heller, 554 U.S. at 612, is illustrative. There, the court held a state statute “valid”
in prohibiting concealed carry, but to the extent the law “contains a prohibition
against bearing arms openly,” the court explained, it “is in conflict with the
8
Constitution, and void.” 1 Ga. 251. Numerous other cases relied upon by Heller
followed the same approach. 554 U.S. at 613, 629 (citing Andrews v. State, 50 Tenn.
165, 187 (1871); State v. Chandler, 5 La. Ann. 489 (1850); State v. Reid, 1 Ala. 612
(1840)). As there is no historical tradition of restricting the open carry of firearms,
California’s restrictions violate the Second Amendment.3
Even if this Court finds that California’s ban on the open carry of handguns is
constitutional because California has a mechanism to concealed carry handguns, this
Court should find California’s ban on long gun carry is unconstitutional. There is no
mechanism to carry long guns for self-defense, within California law, which is
applicable to Mr. Zeleny. The Supreme Court has found that the government cannot
completely ban the carry of a protected arm. Here, there can be no dispute that long
guns are protected arms. They are bearable arms which are in common use all
throughout the United States. Thus, their complete ban on carry violates the Second
Amendment.
Similarly, California’s entertainment exemption violates the Equal Protection
Clause of the Fourteenth Amendment. The Penal Code exemptions for “authorized
participants” in a movie, television show, theatrical production, or other
3
See generally Michel, C.D. and Moros, Konstadinos (2024) "Restrictions "Our
Ancestors Would Never Have Accepted": The Historical Case Against Assault
Weapon Bans," Wyoming Law Review: Vol. 24: No. 1, Article 3. Available at:
https://scholarship.law.uwyo.edu/wlr/vol24/iss1/3 (listing historical commentary
which says concealed carry can be banned.)
9
“entertainment event,” implicate the Second Amendment right to bear arms and the
First Amendment right to expression. By establishing these exemptions, California
law impermissibly and arbitrarily disadvantages one group of speakers and one
group of weapons carriers over another.
Strict scrutiny applies when a legislative classification “impermissibly
interferes with the exercise of a fundamental right or operates to the peculiar
disadvantage of a suspect class.” Mass. Bd. of Retirement v. Murgia, 427 U.S. 307
(1976). Such classifications are presumed unconstitutional and will survive strict
scrutiny only when the government can show the law is narrowly tailored to a
compelling governmental interest. See Zablocki v. Redhail, 434 U.S. 374, 388
(1978) (“[w]hen a statutory classification significantly interferes with the exercise
of a fundamental right, it cannot be upheld unless it is supported by sufficiently
important state interests and is closely tailored to effectuate only those interests”).
The entertainment exceptions impermissibly distinguish between different
forms of First Amendment speakers, drawing a line between those engaged in
“entertainment” – i.e., movies, TV shows, and theatrical performances – and in other
forms of protected speech – i.e., protests, firearm training courses, “open carry”
demonstrations, or gun-rights advocacy. Neither the statute itself nor its legislative
history gives any valid justification for this distinction between forms of
constitutionally-protected speech. The Legislature gave no reasons for the
10
exemption, and it does not appear that it considered other forms of expressive
conduct at all. To the extent that the exception is intended, as it appears, to help the
lucrative entertainment industry, this type of distinction is constitutionally
impermissible. See Branzburg v. Hayes, 408 U.S. 665, 704 (1972). It also implicates
Mr. Zeleny’s Second Amendment rights for all the reasons mentioned above. And
strict scrutiny applies due his Second Amendment rights as well.
The exemptions violate equal protection by respecting the rights of big movie
studios and production companies, while denying those same rights to individuals
such as Mr. Zeleny. Regulations which serve to disadvantage certain groups, or
advantage certain groups over others, are subject to struct scrutiny, see Mass. Bd. of
Retirement v. Murgia, 427 U.S. 307 (1976), and would rarely, if ever, be
constitutional. Here, the State cannot identify a compelling interest justifying this
disparate treatment, nor that the exemptions are narrowly tailored.
Even under rational basis review the exemptions would be unconstitutional.
This Court’s decision in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), is
controlling. In Silveira, the Court concluded that favoring retired peace officers over
similarly-situated civilians violated the Equal Protection Clause: favoring retired
peace officers hoping to enjoy greater access to firearms didn’t make sense in the
context of a statute (there, the Assault Weapons Control Act) whose overall aim was
restricting access to firearms. Silveira establishes that an active peace officer’s role
11
as a law enforcement agent provides a rational basis for distinguishing between a
duly sworn and authorized peace officer and a private citizen for the purpose of the
carrying of firearms in otherwise-proscribed areas such as school zones. Because
retired officers are not authorized to engage in law enforcement activities any more
than other private citizens, however, Silveira instructs that there is no rational reason
to treat them differently than similarly-situated civilians by granting them a special
exemption.
Similarly, there is no rational reason to give an exemption to movie executive
but not to Mr. Zeleny. The only conceivable reason is due to the unpopularity of Mr.
Zeleny’s activities. The United States Supreme Court has long held that drawing
classifications based on political unpopularity violates the Equal Protection Clause.
“[I]f the constitutional conception of ‘equal protection of the laws’ means anything,
it must at the very least mean that a bare congressional desire to harm a politically
unpopular group cannot constitute a legitimate governmental interest.” United States
Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). Here, the exemptions similarly
violate equal protection.
ARGUMENT
I. Standard of Review
Summary judgment is proper where there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
12
Rule 56(a) mandates summary judgment "against a party who fails to make a
showing sufficient to establish the existence of an element essential to the party's
case, and on which that party will bear the burden of proof at trial." Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also
Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999). See
Fed. R. Civ. P. 56(a). This Court reviews de novo a district court’s ruling on
summary judgment. Albino v. Baca, 747 F.3d 1162, 1173 (9th Cir. 2014).
II. California’s Open Carry Ban Violates the Second Amendment
“[T]he Second Amendment guarantees a general right to public carry,” meaning
ordinary, law-abiding citizens may “‘bear’ arms in public for self-defense.” Bruen, 142
S. Ct. at 2135. Accordingly, the “general right to public carry” cannot be restricted
absent “exceptional circumstances.” Bruen, 142 S. Ct. at 2156 (emphasis added). To
determine whether a state’s restriction is constitutional, the Court in Bruen explained
that “the standard for applying the Second Amendment is as follows: When the Second
Amendment’s plain text covers an individual’s conduct, the Constitution
presumptively protects that conduct. The government must then justify its regulation
by demonstrating that it is consistent with the Nation’s historical tradition of firearm
regulation.” 142 S. Ct. at 2129–30. It is the State’s burden to “affirmatively prove that
its firearms regulation is part of the historical tradition that delimits the outer bounds
of the right to keep and bear arms.” Id. at 2127; see also id. at 2150 (“[W]e are not
13
obliged to sift the historical materials for evidence to sustain New York’s statute. That
is respondents’ burden.”). If the State fails to meet its burden, then the State’s
restrictions must be enjoined.
A. Plaintiff’s Conduct is Covered by the Second Amendment’s Plain

Text
If the plaintiff’s proposed course of conduct falls within the Second
Amendment’s plain text, then “the Constitution presumptively protects that
conduct.” Bruen, 142 S. Ct. at 2126. The Supreme Court has defined all of the
Second Amendment’s key terms. “The people” means “all Americans”; “Arms”
includes “all instruments that constitute bearable arms”; and, most relevant here, to
bear simply means to “carry.” District of Columbia v. Heller, 554 U.S. 570, 580–82,
584 (2008).
Here, Mr. Zeleny is one of the people. This cannot seriously be disputed.
“Heller explained that the words ‘the people’ in the Second Amendment have been
interpreted throughout the Constitution to ‘unambiguously refer[] to all members of
the political community, not an unspecified subset.’ 554 U.S. at 580. Further, ‘the
people’ ‘refer[] to a class of persons who are part of a national community or who
have otherwise developed sufficient connection with this country to be considered
part of that community.’” Id. (citing United States v. Verdugo-Urquidez, 494 U.S.
259, 265, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990)). In this Circuit, all citizens
have Second Amendment rights including pretrial detainees and misdemeanants.
14
“Although Appellants are pretrial releasees, they remain members of the national
community—that is, they fall within the plain meaning of “the people”—and they
are therefore not without the ability to invoke their constitutional right.” U.S. v.
Perez-Garcia, 96 F.4th 1166, 1180 (9th Cir. 2024). “As to Fencl, specifically, we
cannot conclude that his prior misdemeanor conviction or arrests should operate to
categorically exclude him from the national community.” Id. See also U.S. v.
Duarte, 101 F.4th 657, 671 (9th Cir. 2024) (“Our own analysis of the Second
Amendment's text and history also confirms that the original public meaning of “the
people” in the Second Amendment included, at a minimum, all American citizens.”).
Mr. Zeleny is a U.S. Citizens and has no criminal record. Based on this Court’s
precedent he is part of the People who have Second Amendment rights.
Furthermore, Mr. Zeleny’s proposed course of conduct is protected by the
Second Amendment. That is because he wishes to bear protected arms just like the
plaintiffs in Bruen. As this Court as held in applying Bruen, when a restriction
implicates a litigant’s ability to carry arms this satisfies the plain text inquiry. “[T]he
challenged condition restricts Fencl's ability to bear or keep any firearm—even those
he would lawfully store at home for self-defense—and therefore unquestionably
implicates his Second Amendment rights. U.S. v. Perez-Garcia, 96 F.4th 1166, 1181
(9th Cir. 2024). Thus, California’s ban on unloaded open carry implicates the plain
text of the Second Amendment.
15
California may argue that Mr. Zeleny’s claim does not implicate the Second
Amendment because an unloaded firearm cannot be used for self-defense. However,
as Judge Breyer found in Heller, “[b]ased on a 1993 survey, the authors of one study
estimated that there were 2.2–to–2.5 million defensive uses of guns (mostly
brandishing, about a quarter involving the actual firing of a gun) annually. See Kleck
& Gertz, Armed Resistance to Crime, 86 J.Crim. L. & C. 150, 164 (1995); see also
ILEETA Brief App. 1–6 (summarizing studies regarding defensive uses of guns).”
D.C. v. Heller, 554 U.S. 570, 700–01 (2008).4 Furthermore. Mr. Zeleny has the
option of carrying ammunition on his person outside of his holster. And then load
the ammunition in a self-defense situation. Mr. Zeleny in fact kept ammunition on
or about his person during his protests.5 That was a common practice prior to 2012
when the current unloaded open carry ban went into effect.6 An example of this is
shown in the photo below.
4
In another survey found 81.9% of self-defense uses of a firearm did not involve
firing a shot. See English, William, 2021 National Firearms Survey (July 14,
2021). Georgetown McDonough School of Business Research Paper No. 3887145,
at page 9. Available at SSRN: https://ssrn.com/abstract=3887145 or
http://dx.doi.org/10.2139/ssrn.3887145
5
Mr. Zeleny stated during his deposition that during his protests he kept live
ammunition so that he could defend himself. See 2 ER 153-154; 2 ER 156-157; 2
ER 164-165.
6
See https://www.cbsnews.com/news/gun-fans-cheer-starbucks-policy/; See also
https://money.cnn.com/2010/03/04/news/companies/Starbucks_gun_policy/.
16
And loading an unloaded firearm with ammunition would be legal under
California law. The prohibition on carrying loaded firearms “does not apply to a person
‘who reasonably believes that any person or the property of any person is in immediate,
grave danger and that the carrying of the weapon is necessary for the preservation of
that person or property.’” Peruta v. Cnty. of San Diego, 824 F.3d 919, 925 (9th Cir.
2016) (en banc) (quoting California Criminal Code § 26045). Thus, Mr. Zeleny would
have several meaningful methods for self-defense if he could carry an unloaded firearm
openly. Mr. Zeleny’s challenge satisfies the plain text of the Second Amendment.
7
Photo taken from https://www.csmonitor.com/USA/2010/0227/Guns-at-
Starbucks-Pushing-the-right-to-bear-arms-in-public showing two men in San
Ramon, California lawfully open carrying unloaded firearms and ammunition on
January 9, 2010. (last visited 6/2/2024).
17
B. California Must Identity a Historical Analogue to Its Open Carry

Ban.
California “must identify a historical analogue that curtails the right to
peaceably carry handguns openly for self-defense to a comparable degree, with a
comparable severity, and with a comparable blanket enforcement.” Baird v. Bonta,
81 F.4th 1036, 1047 (9th Cir. 2023). The relevant time period for the historical
analogue must be the Founding, centering on 1791. Bruen, 142 S. Ct. at 2135–36;
see also Mark W. Smith, ‘Not all History is Created Equal’: In the Post-Bruen
World, the Critical Period for Historical Analogues Is when the Second Amendment
Was Ratified in 1791, and not 1868, SSRN, Oct. 1, 2022, https://bit.ly/3CMSKjw.
That is because “‘[c]onstitutional rights are enshrined with the scope they were
understood to have when the people adopted them.’” Bruen, 142 S. Ct. at 2136,
quoting Heller, 554 U.S. at 634–35. Although the Court in Bruen noted an academic
debate surrounding whether courts should look to 1868 and Reconstruction (when
the Fourteenth Amendment was adopted), the Court found no need to address the
point as the result with respect to carry was the same. Bruen, 142 S. Ct. at 2138
(“[T]he public understanding of the right to keep and bear arms in both 1791 and
1868 was, for all relevant purposes, the same with respect to public carry.”
(emphasis added)). But there can be no doubt that the actual analysis of the Court is
focused on l791. See Worth v. Harrington, 2023 WL 2745673 at *11 (D. Minn. Mar.
31, 2023) (noting the “rather clear signs that the Supreme Court favors 1791 as the
18
date for determining the historical snapshot of ‘the people’ whose understanding of
the Second Amendment matters”). The Court noted that its past precedents had
“assumed that the scope of the protection applicable to the Federal Government and
States is pegged to the public understanding of the right when the Bill of Rights was
adopted in 1791.” Bruen, 142 S. Ct. at 2137. Bruen’s characterization of the Court’s
precedents as assuming that 1791 is the proper answer is an understatement. In
Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), for example,
the Court held that “more than 30” provisions of state law enacted “in the second
half of the 19th Century” could not “evince a tradition that should inform our
understanding of the Free Exercise Clause” when those provisions lacked grounding
in Founding Era practice. Id. at 2258–59 (emphasis added). And even if modern laws
alone could demonstrate a broad tradition of a regulation, there must at least be a
strong showing that such laws are common in the states, i.e., many more than six
states. See Kennedy v. Louisiana, 554 U.S. 407, 423–26 (2008) (only six states
permitting death penalty for child rapists shows national consensus against it).
The historical analogues the State points to must be “representative.”
Historical “outlier” requirements of a few jurisdictions or of territorial governments
are to be disregarded. Bruen, 142 S. Ct. at 2133, 2153, 2147 n.22 & 2156. This means
regulations from only a handful of states or those that cover only a small portion of
the population are not enough to demonstrate that modern regulations are consistent
19
with the Second Amendment. Id. at 2155 (rejecting regulations applying to only 1%
of the American population). Bruen also categorically rejected reliance on laws
enacted in the Territories, including expressly “Arizona, Idaho, New Mexico,
Oklahoma,” holding that such laws “are most unlikely to reflect ‘the origins and
continuing significance of the Second Amendment’ and we do not consider them
‘instructive.’” Bruen, 142 S. Ct. at 2154 (quoting Heller, 554 U.S. at 614).
The historical analogues must be “relevantly similar,” which is to say that they
must burden ordinary, law-abiding citizens’ right to carry for self-defense in a
similar manner and for similar reasons. Bruen, 142 S. Ct. at 2132. Bruen held that
the inquiry into whether an analogue is proper is controlled by two “metrics” of “how
and why” any restriction was historically imposed during the Founding era. Id. at
2133. “[W]hether modern and historical regulations impose a comparable burden on
the right of armed self-defense and whether that burden is comparably justified are
‘central’ considerations when engaging in an analogical inquiry.” Id. (emphasis in
original). “While California does not need to identify a “dead ringer” for its open-
carry ban, id., California cannot satisfy the requirement for a closely analogous
historical regulation by reference to any general firearm regulation California might
unearth”. Baird v. Bonta, 81 F.4th 1036, 1046 (9th Cir. 2023). “California must
provide analogues that are “distinctly similar,” id. at 2131, to California's general
open-carry ban in “how” and “why” they curtailed individuals' right to carry
20
firearms.” Id. California will inevitably argue that is entitled to a leniency in its
historical analysis because the Supreme Court noted that some cases “implicating
unprecedented societal concerns or dramatic technological changes may require a
more nuanced approach” Bruen, 597 U.S. at 2132. However, as shown below the
open carry of firearms is not a new societal problem. Thus, any such argument
should be disregarded.
The U.S. Supreme Court’s recent opinion in United States v. Rahimi does not
change this analysis. In upholding 18 U.S.C. §922(g)(8) the Supreme Court
reiterated that “a court must ascertain whether the new law is ‘relevantly similar’ to
law that our tradition is understood to permit.” United States v. Rahimi, No. 22-915,
2024 WL 3074728, at *1 (U.S. June 21, 2024) (quoting Bruen, 597 U.S. 1, 142).
And it also cautioned that “even when a law regulates arms-bearing for a permissible
reason, though, it may not be compatible with the right if it does so to an extent
beyond what was done at the founding.” Id at *6. As shown below, the laws at issue
here have no relevantly similar historical counterparts and are thus unconstitutional.
C. There is no Historical Tradition of Prohibiting Open Carry

There is no historical tradition of restricting the open carry of firearms.
Historically, the concealed carry of firearms was restricted, and open carry was the
21
typical manner by which Second Amendment rights were exercised.8 “[C]oncealed
carry was prohibited for resident and non-resident alike for much of our history.”
Peterson v. Martinez, 707 F.3d 1197, 1216 (10th Cir. 2013).9
In Robertson v. Baldwin, 165 U.S. 275 (1897), the Supreme Court
considered a Thirteenth Amendment challenge to a pair of statutes authorizing the
detention of deserting seamen. Id. at 277, 280. In rejecting the challenge, the Court
noted that many of the freedoms guaranteed by the Bill of Rights are subject to
“certain well-recognized exceptions.” Id. at 281. One of those noted is “the right of
the people to keep and bear arms (article 2) is not infringed by laws prohibiting the
carrying of concealed weapons.” Robertson v. Baldwin, 165 U.S. 275, 281–82 (1897).
A host of 19th Century laws prohibited the concealed carry of firearms while
preserving the right to open carry.10 Court decisions upheld this interpretation of the
8
See Clayton E. Cramer, Concealed Weapon Laws of the Early Republic 143-52
(1999).
10
“Most states enacted laws banning the carrying of concealed weapons.” Kachalsky
v. Cnty. of Westchester, 701 F.3d 81, 95 (2d Cir. 2012), abrogated by New York
State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022). “See Act of Feb. 1,
1839, ch. 77, 1839 Ala. Acts at 67–68; Act of Apr. 1, 1881, ch. 96, § 1, 1881 Ark.
Acts at 191; Act of Feb. 1, 1881, 1881 Colo. Sess. Laws at 74; Act of Feb. 12, 1885,
ch. 3620, 1885 Fla. Laws at 61; Act of Apr. 16, 1881, 1881 Ill. Laws at 73–74; Act
of Jan. 14, 1820, ch. 23, 1820 Ind. Acts at 39; 29 Ky. Gen.Stat. art. 29, § 1 (as
amended through 1880); Act of Mar. 25, 1813, 1813 La. Acts at 172; 1866 Md. Laws,
ch. 375, § 1; Neb. Gen.Stat., ch. 58, ch. 5, § 25 (1873); Act of Mar. 5, 1879, ch. 127,
1879 N.C. Sess. Laws at 231; N.D. Pen.Code § 457 (1895); Act of Mar. 18, 1859,
22
right to arms by consistently upholding restrictions on concealed carry. “[T]he
majority of the 19th-century courts to consider the question held that prohibitions on
carrying concealed weapons were lawful under the Second Amendment or state
analogues.” D.C. v. Heller, 554 U.S. 570, 626 (2008). The earliest of these cases, the
Indiana Supreme Court’s 1833 decision in State v. Mitchell found “IT was held in
this case, that the statute of 1831, prohibiting all persons, except travelers, from
wearing or carrying concealed weapons, is not unconstitutional.” 3 Blackf. 229 (Ind.
1833). Later, Alabama’s highest court ruled that a concealed weapons ban was
constitutional, while a ban on open carry would not be in State v. Reid, 1 Ala. 612
(1840). According to the court, “it is only when carried openly, that [weapons] can
be efficiently used for defence.” Id at 619. Carrying concealed weapons did not fit
within the state’s constitutional allowance that a person could keep and bear arms
“for the purposes of defending himself and the State”. Id. Because, for purposes of
self-protection in moments of immediate danger, the court found that “there can be
no necessity for concealing the weapon.” Id at 621. The court rejected an argument
that open carry and concealed carry were functionally identical, and that it mattered
1859 Ohio Laws at 56; Act of Feb. 18, 1885, 1885 Or. Laws at 33; Act of Dec. 24,
1880, no. 362, 1881 S.C. Acts at 447; S.D. Terr. Pen.Code § 457 (1883); Act of Apr.
12, 1871, ch. 34, 1871 Tex. Gen. Laws at 25–27; Act of Oct. 20, 1870, ch. 349, 1870
Va. Acts at 510; Wash.Code § 929 (1881); W. Va.Code, ch. 148, § 7 (1891); see also
Cornell & DeDino, A Well Regulated Right, 73 Fordham L.Rev. at 502–16.” Id.
23
not which one was allowed and which was barred. Id at 618.
That same year, the Tennessee Supreme Court upheld the state’s concealed
weapons ban. Aymette v. State, 21 Tenn. (2 Hum.) 154 (1840). Finding that “the right
to bear arms in defence of themselves is coupled with the right to bear them in
defence of the State,” and that arms used in defense of the state “must necessarily be
borne openly,” the court held that only the open carry of weapons could be protected
by Tennessee’s Second Amendment analogue. Id at 161. “Aymette held that the state
constitutional guarantee of the right to “bear” arms did not prohibit the banning of
concealed weapons.” Heller, 554 U.S. at 613.
Similarly, the Georgia Supreme Court in Nunn v. State, 1 Ga. 243 (1846),
lauded by Heller, 554 U.S. at 612 agreed with these cases. There, the Court
expressly found that the open carry of firearms is the right protected by the Second
Amendment. The court held a state statute “valid” in prohibiting concealed carry,
but to the extent the law “contains a prohibition against bearing arms openly,” the
court explained, it “is in conflict with the Constitution, and void.” 1 Ga. 251. The
Arkansas Supreme Court came to a similar conclusion in upholding a concealed
weapons restriction. “The act in question does not, in my judgment, detract anything
from the power of the people to defend their free state and the established institutions
of the country. It inhibits only the wearing of certain arms concealed.” State v.
Buzzard, 4 Ark. 18, 27 (1842).
24
Shortly thereafter, in State v. Chandler, the Louisiana Supreme agreed with
this line of cases and ruled that the state could ban concealed carry. State v.
Chandler, 5 La. Ann. 489 (1850). The court wrote:
The act of the 25th of March, 1813, makes it a misdemeanor to be

“found with a concealed weapon, such as a dirk, dagger, knife, pistol,
or any other deadly weapon concealed in his bosom, coat, or any other
place about him, that does not appear in full open view.” This law
became absolutely necessary to counteract a vicious state of society,
growing out of the habit of carrying concealed weapons, and to prevent
bloodshed and assassinations committed upon unsuspecting persons. It
interfered with no man’s right to carry arms (to use its words) “in full
open view,” which places men upon an equality. This is the right
guaranteed by the Constitution of the United States, and which is
calculated to incite men to a manly and noble defence of themselves, if
necessary, and of their country, without any tendency to secret
advantages and unmanly assassinations.
Id. at 489-90.
This line of cases was the basis for this Court’s en banc decision in Peruta v.
Cnty. of San Diego, 824 F.3d 919 (9th Cir. 2016). “We hold that the Second
Amendment does not preserve or protect a right of a member of the general public
to carry concealed firearms in public.” Peruta, 824 F.3d at 924. Thus, this Circuit is
already familiar with this historical tradition. Even after Bruen, the California courts
have acknowledged that historically the right to arms was exercised by the open
carry of firearms.
“Bruen did not suggest that where a state bans both concealed and open carry
(or all carry), the concealed carry provisions are unconstitutional. Rather, Bruen
25
quoted a Georgia case explaining that to the extent a statute that prohibited concealed
carry also prohibited open carry, it was the open carry provision that conflicted with
the Constitution and was void.” People v. Miller, 312 Cal. Rptr. 3d 655, 663 (Cal.
App. 3d Dist. 2023). History teaches us that open carry has always been allowed.
There is no historical tradition of banning the open carry of firearms even if
concealed carry is allowed. Pursuant to Bruen, California’s ban on open carry
violates the Second Amendment.
This Court should find Cal. Pen. Code § 26350 and Cal. Pen. Code § 26400
violate the Second Amendment because there is no historical tradition of banning
the open carry of firearms even if concealed carry is allowed. However, even if this
Court upholds Cal. Pen. Code § 26350 on the grounds that California has a
mechanism for concealed carry, it should still find Cal. Pen. Code § 26400 is
unconstitutional. That is because, as shown below, there is no mechanism for Mr.
Zeleny to carry a long gun under California law.
D. Cal. Pen. Code § 26400 Violates the Second Amendment Even if

Cal. Pen. Code § 26350 is Found Constitutional
Even if this Court finds that California’s ban on the open carry of handguns
is constitutional because there is a mechanism to concealed carry a handgun, this
Court should find California’s ban on the open carry of long arms unconstitutional.
Cal. Pen. Code § 26400 is also challenged in this lawsuit. It prohibits the unloaded
open carry of firearms other than handguns and there is no way to carry a long arm
26
in a concealed manner under California law or as a practical matter. Cal. Pen. Code
§ 25850 prohibits the carry of all loaded firearms. And unlike handguns, there is no
license exception within the law for long gun carry. This means California law
operates as a complete ban on the carrying of long guns i.e. rifles and shotguns. As
shown below, long guns are protected arms. Thus, California’s complete ban on their
carry is unconstitutional.
The Supreme Court has already supplied the definition of arms: “[w]eapons
of offence, or armour of defence” or “any thing that a man wears for his defence, or
takes into his hands, or useth in wrath to cast at or strike another.” Heller, at 581.
Accordingly, so long as something fits within that definition, the Constitution
“presumptively guarantees” individuals the right to keep and bear it. Bruen at 2135.
Indeed, that is what it means to say that “the Second Amendment extends, prima
facie, to all instruments that constitute bearable arms.” Bruen, at 2132 (quoting
Heller, 554 U.S. at 582); accord Caetano v. Massachusetts, 577 U.S. 411, 411 (2016)
(per curiam); and Baird v. Bonta, 2023 U.S. App. LEXIS 23760, at *13 (9th Cir.
Sep. 7, 2023) (“… if the Second Amendment’s plain text covers the regulated
conduct, the regulation will stand only if the government can ‘affirmatively prove
that its firearms regulation is part of the historical tradition that delimits the outer
bounds of the right to keep and bear arms’ in the United States.”). To be sure, that is
just a presumption, which the government can rebut by showing that a prohibition
27
on keeping and/or bearing a particular type of arm “is consistent with this Nation’s
historical tradition of firearm regulation.” Bruen at 2119. But if the government
succeeds in doing so, that does not make the instrument any less of an “arm”; it just
means it is the type of arm may be prohibited consistent with this Nation’s historical
tradition. This Circuit has endorsed that position. U.S. v. Perez-Garcia, 96 F.4th
1166, 1180–81 (9th Cir. 2024). (“[T]he presumptive protections of the Second
Amendment may be rebutted as to arms not ‘in common use’ today for self-
defense.’”)
None of that is particularly novel. Just as the plain text of the Second does
not distinguish among different types of “Arms,” the plain text of the First
Amendment does not distinguish among different types of “speech.” See Bruen, at
24-25 (drawing this analogy). That is why, in the speech context, “the government
must generally point to historical evidence about the reach of the First Amendment’s
protections” “to carry [its] burden” to show that “expressive conduct falls outside of
the category of protected speech.” Bruen, at 2130 (emphasis added); see id. (noting
that United States v. Stevens, 559 U.S. 460 (2010), “plac[ed] the burden on the
government to show that a type of speech belongs to a ‘historic and traditional
categor[y]’ of constitutionally unprotected speech”). See also Brown v. Entm't
Merchs. Ass'n, 564 U.S. 786, 789 (2011). The government bears that burden
precisely because speech that falls outside “the category of protected speech” is still
28
speech within the plain meaning of that term. By the same token, arms that fall
outside the category of protected arms are still arms within the plain meaning of that
term. Thus, if the government wants to prohibit a class of arms, it must meet its
burden of proving that they belong to a historic and traditional category of
unprotected arms. To be sure, whether arms are in common use for lawful purposes
like self-defense matters to the historical tradition inquiry, which looks to “whether
modern and historical regulations impose a comparable burden on the right of armed
self-defense.” Bruen, 597 U.S. at 2118. But considerations that find no purchase in
the plain text are not part of the plain text inquiry. That is precisely why the Supreme
Court has instructed twice that whether a class of arms is “in common use” (or
instead is “highly unusual in society at large”) is part of the “historical tradition”
inquiry. Bruen, 597 U.S. at 2128 (quoting Heller, 554 U.S. at 627).
Mr. Zeleny acknowledges that California has used dicta in United States v.
Alaniz, 69 F.4th 1124, 1128 (9th Cir. 2023) to dispute the above point in other
litigation.11 If California raises that point here, it should be disregarded. The issue in
Alaniz was whether U.S.S.G. §2D1.1(b)(1), which requires “an enhancement of the
Guidelines calculation if a defendant possessed a dangerous weapon at the time of a
felony drug offense, is constitutional under the Second Amendment following
[Bruen].” 69 F.4th at 1126. In answering that question, the Court “assume[d],
11
See e.g. Fouts v Bonta 24-1039 Doc. No. [7] (Defendant Bonta’s Opening Brief)
29
without deciding, that step one of the Bruen test”—i.e., whether “the Second
Amendment’s plain text covers an individual’s conduct,” Bruen, at 17—was “met.”
Alaniz, 69 F.4th at 1129. Alaniz, in other words, assumed that “lawfully possessing
firearms” is conduct covered by the Second Amendment’s plain text and is therefore
presumptively protected. Id. The Court then moved to the historical tradition
inquiry and held that §2D1.1(b)(1) “comports with a history and tradition of
regulating the possession of firearms during the commission of felonies involving a
risk of violence.” Id.
None of that has anything to do with the matter before this Court which is
whether California’s ban on the carry of long arms is constitutional. Nor does
anything about how Alaniz decide the question the question before this Court. To be
sure, Alaniz contains one clause of dicta in one sentence of dicta that is in tension
with Mr. Zeleny’s position. See 69 F.4th at 1129 (emphasis added) (“In alignment
with Heller, [Bruen] requires a textual analysis, determining whether the challenger
is part of the people whom the Second Amendment protects, whether the weapon at
issue is in common use today for self-defense, and whether the proposed course of
conduct falls within the Second Amendment.” (cleaned up)). But Alaniz did not hold
otherwise. To the contrary, Alaniz explicitly “assume[d], without deciding, that step
one of the Bruen test [was] met” there. 69 F.4th at 1129 (emphasis added).
30
Alaniz’s drive-by summation of its understanding of Bruen’s plain text inquiry
is thus quintessential dicta—“discussions that are ‘unnecessary to the Court’s
holdings.’” United States v. Pedregon, 520 F.App’x 605, 608 (9th Cir. 2013)
(quoting Local 144 Nursing Home Pension Fund v. Demisay, 508 U.S. 581, 592 n.5
(1993)); see also Black’s Law Dictionary 1102 (8th ed. 2004) (“A judicial comment
made while delivering a judicial opinion, but one that is unnecessary to the decision
in the case and therefore not precedential.”). This Court is “not bound by dicta in
decisions from our court or any other circuit.” United States v. Pinjuv, 218 F.3d
1125, 1129 (9th Cir. 2000). For the reasons laid out above, this Court should find
that all bearable arms fall within the plain text of the Second Amendment.
California therefore bears the burden to prove that California law which
imposes an outright ban on possessing a class of arms, “is consistent with the
Nation’s historical tradition.” Id. at 17. Bruen instructs how a state may make that
showing in the specific context of laws like California Penal Code § 22210 that ban
the possession of arms outright. The key question is whether the arms a state wants
to ban are “in common use today” for lawful purposes like self-defense, or rather
“‘are highly unusual in society at large.’” Id. at 47 (quoting Heller, at 627). And as
shown below, California cannot meet its burden because long guns i.e. rifles and
shotguns are arms protected by the Second Amendment.
31
E. Long Guns Are Arms Protected by the Second Amendment
Longs guns are arms protected by the Second Amendment. Arms are
anything “that a man wears for his defence, or takes into his hands, or useth in wrath
to cast at or strike another.” Heller, 554 U.S. at 581; see also Bruen, 597 U.S. at
2128 (confirming that “that general definition covers modern instruments that
facilitate armed self-defense”). “Heller emphasizes that ‘the Second Amendment
extends, prima facie, to all instruments that constitute bearable arms.’ Heller, 554
U.S. at 582. In other words, the Second Amendment identifies a presumption in
favor of Second Amendment protection, which the State bears the initial burden of
rebutting.” See New York State Rifle & Pistol Ass'n v. Cuomo, 804 F.3d 242, 257 (2d
Cir. 2015).
The Second Circuit went on to find at least some rifles protected by the
Second Amendment. “Though we assume without deciding that the bulk of the
challenged legislation is entitled to Second Amendment protection, we decide as
much with respect to Connecticut's prohibition of the Remington Tactical 7615, a
non-semiautomatic pump-action rifle.” Id. at 257 n. 157. And found pre-Bruen that
a ban on this type of rifle was unconstitutional. “We hold that the specific prohibition
on the non-semiautomatic Remington 7615 falls within the scope of Second
Amendment protection and subsequently fails intermediate scrutiny.” Id. at 269. The
D.C. Appeals court has also found that long arms are protected arms. “All the
32
requirements as applied to long guns, also affect the Second Amendment right”.
Heller v. District of Columbia, 670 F.3d 1244, 1255 (2011). The Court in Heller
observed that the handgun is “the quintessential self-defense weapon,” 554 U.S. at
62. However, it also recognized “long guns” are a type of arm. Heller, 554 U.S. 570,
629. It then expressly listed rifles as a type of protected arm. “Quakers opposed the
use of arms not just for militia service, but for any violent purpose whatsoever—so
much so that Quaker frontiersmen were forbidden to use arms to defend their
families, even though “[i]n such circumstances the temptation to seize a hunting rifle
or knife in self-defense.” Heller, 554 U.S. 570, 590. Nothing in Bruen disturbs these
holdings. “Our holding decides nothing about who may lawfully possess a firearm
or the requirements that must be met to buy a gun. Nor does it decide anything about
the kinds of weapons that people may possess. Nor have we disturbed anything that
we said in Heller or McDonald v. Chicago, 561 U.S. 742, 130 S. Ct. 3020, 177
L.Ed.2d 894 (2010), about restrictions that may be imposed on the possession or
carrying of guns.” Bruen, 597 U.S. 2111, 2132 (Alito, J., concurring). The Rahimi
Court reaffirmed these holdings. “As we explained in Heller, for example, the reach
of the Second Amendment is not limited only to those arms that were in existence at
the founding. 554 U. S., at 582. Rather, it “extends, prima facie, to all instruments
that constitute bearable arms, even those that were not [yet] in existence.” Ibid. By
that same logic, the Second Amendment permits more than just those regulations
33
identical to ones that could be found in 1791. Holding otherwise would be as
mistaken as applying the protections of the right only to muskets and sabers.” United
States v. Rahimi, No. 22-915, 2024 WL 3074728, at *6 (U.S. June 21, 2024)
There can be no question that long guns are protected arms which are in
common use for lawful purposes. According to the NSSF (the firearm manufacturer
lobby) while using data from the ATF, between 1991 and 2018, 79,498,830 long
guns were produced in the United States and sold either to civilians or law
enforcement.12 The Department of Justice estimates that there are 129 million13 long
guns legally owned by private civilians.1415 Even if California attempted to rebut the
presumption long guns are protected arms, based on any metric this Court might use,
long guns are in common use. Oakland Tactical Supply, LLC v. Howell Township,
Michigan, No. 23-1179, 2024 WL 2795571, at *11 (6th Cir. May 31, 2024)
(Kethledge, Dissenting) (“As an initial matter, all of them seek to train with weapons
12
https://www.nssf.org/wp-content/uploads/2020/11/IIR-2020-Firearms-
Production-v14.pdf
13
(70 million rifles, 49 million shotguns and 8 million other long guns)
14
https://www.ojp.gov/pdffiles/165476.pdf (Exhibit four of pdf).
15
See also English, William, 2021 National Firearms Survey (July 14, 2021).
Georgetown McDonough School of Business Research Paper No. 3887145,
Available at SSRN: https://ssrn.com/abstract=3887145 or
http://dx.doi.org/10.2139/ssrn.3887145 at Page 20. (“Overall, Americans own in
excess of 415 million firearms, consisting of approximately 171 million handguns,
146 million rifles, and 98 million shotguns.”) The same study shows Americans
own AR-15 styled rifles for the following purposes: defense outside the home
(34.6%), home defense (61.9%), competitive shooting sports (32.1%), recreational
target shooting (66.0%), hunting (50.5%), and other (5.1%). Id at 33-34.
34
in common usage—namely pistols, shotguns, rifles, or some combination thereof.”).
“[C]olonial laws provide no justification for laws restricting the public carry
of weapons that are unquestionably in common use today. Since the founding of
Jamestown in 1607, there were three major classes of long guns i.e. shoulder fired
firearms. They were known by many names but can be listed generally as Musket,
Fowler, and Rifle.16 A musket is a smoothbore firearm primarily intended to be fired
from the shoulder and contains a bayonet lug instead of a front sight.17 A musket
generally discharges a single projectile called a musket ball.18 A rifle is a firearm
with a rifled bore designed to be fired from the shoulder and shoot a single
projectile.19 A Fowler is a smoothbore firearm designed to be fired from the
shoulder. A Fowler or fowling piece, however, usually discharges multiple
projectiles called shot, and is the reason that modern day fowlers are called shotguns.
Both the musket and the fowler can shoot both single and multiple projectiles. “The
military history of the shotgun dates to the middle of the sixteenth century, when the
blunderbuss was invented in Germany and the smoothbore Birding Piece or Long
Fowler was developed in England. While the latter was developed for hunting, the
former was a close-range, antipersonnel weapon from the outset. The dual use—for
16
Within these classes are subgroups such as carbine and blunderbuss.
17
https://en.wikipedia.org/wiki/Rifled_musket
18
Id.
19
https://en.wikipedia.org/wiki/Rifle
35
hunting and personal protection—and greater range of the Long Fowler caused it to
survive and to flourish as the blunderbuss began to wane in the first quarter of the
nineteenth century.”20 Long guns have existed since the Founding of our nation. And
have always been commonly possessed by Americans.
Thus, California’s only remaining could only be that long arms are
“dangerous and unusual” weapons as the term has been used under this Circuit’s
precedent. In United States v. Henry, the Ninth Circuit held that:
An object is “dangerous” when it is “likely to cause serious bodily

harm.” Black's Law Dictionary 451 (9th ed. 2009)… A machine gun is
“unusual” because private possession of all new machine guns, as well
as all existing machine guns that were not lawfully possessed before the
enactment of § 922(o), has been unlawful since 1986. Outside of a few
government-related uses, machine guns largely exist on the black
market.
United States v. Henry, 688 F.3d 637, 640 (9th Cir. 2012).
20
W. Hays Parks, “Joint Service Combat Shotgun Program. The Army Lawyer 17
(Oct 1997). Available at http://lawofwar.org/Parks_Combat_Shotguns.htm ; also at
https://tjaglcs.army.mil/DesktopModules/Bring2mind/SimpleDownloads/Downloa
d.aspx?tabid=34&mid=604&file=The+Army+Lawyer%5C1997%5C10+-
+October+1997%5C1997-Oct-Parks-
Joint+Service+Combat+Shotgun+Program.pdf in .pdf form.
36
An arm being merely dangerous “cannot be used to identify arms that fall
outside the Second Amendment.” Caetano v. Massachusetts, 136 S. Ct. 1027, 1031
(2016) (Alito, J., concurring). “As the per curiam opinion recognizes, this is a
conjunctive test: A weapon may not be banned unless it is both dangerous and
unusual.” Id. Thus, if it can be demonstrated that an arm is either usual or not
dangerous it receives Second Amendment protection.
Long guns are typically owned for lawful purposes.21 Long guns are widely
owned in every state in the Union. Unlike the machine guns at issue in Henry, long
guns are legal to own in the home in every state and the District of Columbia. The
widespread legality and lawful typical use of long guns are sufficient to establish
they are in common use. N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111,
2119-20 (2022). Furthermore, long guns are not any more dangerous than handguns.
They certainly do not rise to the level of devastating power that machine guns do.
As handguns were not found to be dangerous in Heller, long guns cannot be found
here. Thus, they are neither dangerous or unusual arms. And an arm must be both to
fall within this exception.
21
See English, William, 2021 National Firearms Survey: Updated Analysis
Including Types of Firearms Owned (May 13, 2022). Georgetown McDonough
School of Business Research Paper No. 4109494, Available at SSRN:
https://ssrn.com/abstract=4109494 or http://dx.doi.org/10.2139/ssrn.4109494 at pg.
10-11. (Showing that in 34.1% of self-defense incidents where are person used a
firearm to defend themselves, they did so with either a rifle (13.1%) or a shotgun
(21%).
37
The “historical tradition” in this country is one of “prohibit[ing] the carrying
of ‘dangerous and unusual weapons.’” Bruen, at 21 (quoting Heller, at 627;
emphasis added). If an arm is not “dangerous and unusual,” then that tradition does
not and cannot justify a prohibition on carrying it. Simply put, the historical tradition
of bans on dangerous and unusual weapons is relevant if and only if the state meets
its burden of proving that the weapons it has banned are dangerous and unusual. That
California has failed to do. Thus, California’s ban on carrying long guns is
unconstitutional.
F. California’s Ban on Long Arm Carry Violates the Second

Amendment
Pursuant to Bruen, California cannot completely ban the carry of protected
arms for self-defense. “Apart from a few late-19th-century outlier jurisdictions,
American governments simply have not broadly prohibited the public carry of
commonly used firearms for personal defense.” Bruen at 2121. Historically long gun
carry was encouraged rather than prohibited. Pioneers provisioning for a journey
west were advised to “be armed with a rifle and revolver, and … never, either in
camp or out of it, lose sight of them.” Capt. Randolph Barnes Marcy, The Prairie
Traveler 41 (1859); see also Lansford Warren Hastings, The Emigrant’s Guide to
Oregon and California 143 (1845) (advising westward travelers to “equip themselves
with a good gun” and “a holster of good pistols”).
38
As a practical matter, there are many reasons why a person might prefer a
long gun over handguns. He might simply be more proficient with a long gun, or the
environment he is in makes a long gun more practical. Imagine the maintenance
worker who needs to travel into the wilderness to make repairs. He would fear being
attacked by wild dogs or boar. A rifle or shotgun is a much more practical choice for
self-defense. The complete prohibition on carrying long guns for self-defense under
California law violates the Second Amendment. It may be that California can
regulate the carrying of long guns outside the home. However, California’s complete
ban on long gun carry is blatantly unconstitutional.
G. The Entertainment Exemption Violates Equal Protection
Similarly, California’s entertainment exemption violates the Equal Protection
Clause of the Fourteenth Amendment. Here, California has expressly stated that the
firearms entertainment exemption does not apply to Mr. Zeleny’s proscribed
conduct.
To the extent that an individual like Mr. Zeleny seeks to demonstrate

on a public street with an unloaded firearm in an unconfined area and/or
for an indefinite period of time, the Attorney General views the open
carrying of unloaded weapons on a public street, in an unconfined area
fully visible to and accessible by anyone else, and not within what
would reasonably be considered a defined, enclosed production area, to
potentially be conduct outside the scope of the Firearms Entertainment
Permit and the corresponding exception to the open carry laws, and
potentially subject to enforcement by the law enforcement agency
primarily responsible for enforcing the open carry laws in that area.
2 ER 58-59.
39
California believes Mr. Zeleny’s proposed conduct is outside the scope of the
exemption despite Mr. Zeleny’s plans to film future events. 2 ER 124. The fact that
the entertainment exemption does not apply to Mr. Zeleny’s conduct but it applies
to various forms of media violates equal protection. “The first step in equal
protection analysis is to identify the state’s classification of groups.” Arizona Dream
Act Coalition v. Brewer, 757 F.3d 1053, 1064 (9th Cir. 2014) (citation omitted). “The
groups must be comprised of similarly situated persons so that the factor motivating
the alleged discrimination can be identified.” Thornton v. City of St. Helens, 425
F.3d 1158, 1167 (9th Cir. 2005). And “[t]he groups need not be similar in all
respects, but they must be similar in those respects relevant to the [government’s]
policy.” Arizona Dream Act Coalition, 757 F.3d at 1064.
Here, the group at issue are people like Mr. Zeleny who wish to carry firearms
while they are part of protests that are being filmed. They are being treated
differently than others who wish to film other entertainment events. The Penal Code
exemptions for “authorized participants” in a movie, television show, theatrical
production, or other “entertainment event,” implicate the Second Amendment right
to bear arms. By establishing these exemptions, California law impermissibly and
arbitrarily disadvantages one group of speakers over another.
40
1. Mr. Zeleny’s Equal Protection Claim Implicates both First

Amendment and Second Amendment Conduct.
As established in the Second Amendment argument above, Mr. Zeleny’s
proposed course of action implicates the Second Amendment right to arms because
he would like to carry protected arms for lawful self-defense. Additionally, his
proposed course of action implicates the First Amendment. The trial court
acknowledged this by applying intermediate scrutiny to his First Amendment claims.
“The objects of California’s open carry legislation (husbanding law enforcement
resources and preventing needless armed conflict) are plainly important. As for
tailoring, the exemption Zeleny targets is one of dozens, strongly suggesting
whatever “incidental restriction on alleged First Amendment freedoms” the
legislation might represent “is no greater than is essential to the furtherance of
[those] interest[s].” 1 ER 15.
forms of First Amendment speakers, drawing a line between those engaged in
“entertainment” – i.e., movies, TV shows, and theatrical performances – and in other
forms of protected speech – i.e., protests, firearm training courses, “open carry”
demonstrations, or gun-rights advocacy. Neither the statute itself nor its legislative
history gives any valid justification for this distinction between forms of
constitutionally-protected speech. The Legislature gave no reasons for the
exemption, and it does not appear that it considered other forms of expressive
41
conduct at all. 2 ER 48-49. To the extent that the exception is intended, as it appears,
to help the lucrative entertainment industry, this type of distinction is constitutionally
impermissible. See Branzburg v. Hayes, 408 U.S. 665, 704 (1972).
The exemption violates the First Amendment by making a content-based
distinction between the free speech rights of movie studios and production
companies and other, core forms of First Amendment activity. Such a distinction is
not permissible. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)
(restrictions must be justified “without reference to the content of the regulated
speech”) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288,
293 (1984)). As the famous phrase states, “liberty of the press is the right of the
lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the
large metropolitan publisher who utilizes the latest photocomposition methods.”
Branzburg v. Hayes, 408 U.S. 665, 703 (1972). Here, Mr. Zeleny carried firearms
for expressive purposes in addition to self-defense. “I plan to carry unloaded
firearms in connection with a series of protests.” 2 ER 123. As his firearm carry is
directly related to his protests, it is expressive in nature. It is true that ‘the First
Amendment protects only conduct that “is intended to convey a ‘particularized
message’ and the likelihood is great that the message would be so understood.’”
Knox v. Brnovich, 907 F.3d 1167, 1181 (9th Cir. 2018) (Quoting Nunez v. Davis,
169 F.3d 1222, 1226 (9th Cir. 1999)).
42
In Knox, this Court evaluated whether the act of “collecting early ballots is
expressive conduct.” Id. “We conclude that she has not carried her burden of
demonstrating that the conduct of collecting ballots would reasonably be understood
by viewers as conveying any of these messages or conveying a symbolic message of
any sort.” Id. That is a far cry from Mr. Zeleny’s conduct. Here, Mr. Zeleny “events
were provocative by design, often featuring animated depictions of child
molestation. Relevant here, they also came to include Zeleny’s conspicuous carriage
of unloaded military-grade firearms, as well as his donning of live ammunition belts
and tactical combat fatigues, presumably to the alarm of passing motorists.” 1 ER 5.
Mr. Zeleny “plan[s] to present a live, multimedia performance using a large flat-
screen monitor powered by a generator featuring animated depictions of child
molestation relating to Min Zhu’s child rape and NEA’s financial backing and
continued support of Min Zhu.” 2 ER 124.
There can be no debate that a reasonable viewer would see these events as
expressive conduct in order to condemn NEA. Mr. Zeleny’s use of firearms during
these events is akin to a costume one might wear to get a reaction during a political
protest. The trial court erred in finding that the fact these protests are not directly
related to firearms drains from the expressive value of Mr. Zeleny’s use of firearms.
A person dressed up as a British Red Coat to protest high government taxes might
carry a firearm to complete his costume in order to convey the message that the
43
government is acting like England at the time of the Revolution. That his protest is
not directly related to firearms would not drain the expressive value of his use of a
firearm. A person protesting the conduct of either Ukraine or Russia might dress as
a soldier armed with a firearm of one of the respective groups. That his protest is
not directly related to firearms again would not drain his use of firearms of
expressive value.
The trial court found that “[u]nder the test articulated by the Supreme Court
in United States v. O’Brien, “when ‘speech’ and ‘nonspeech’ elements are combined
in the same course of conduct, a sufficiently important governmental interest in
regulating the nonspeech element can justify incidental limitations on First
Amendment freedoms.” 391 U.S. 367, 376 (1968).” 1 ER 14. It then ruled against
Mr. Zeleny’s free standing First Amendment claim by applying intermediate
scrutiny. 1 ER 15. Even if the trial court is correct, strict scrutiny should still apply
to the First Amendment component of Mr. Zeleny’s equal protection claims.
The trial court erred in its application of equal protection to Mr. Zeleny’s claims
despite correctly finding First Amendment rights are implicated by Mr. Zeleny’s
conduct. It found Mr. Zeleny’s equal protection claim did not “infringe[] [a]
fundamental constitutional right[][.]” 1 ER 15. And then found “[r]ational basis is
thus the appropriate standard” to review Mr. Zeleny’s claim. 1 ER 15. The trial
court erred in doing so especially in light of its finding that intermediate scrutiny
44
applies to Mr. Zeleny’s First Amendment claim. Strict scrutiny applies when a
legislative classification “impermissibly interferes with the exercise of a
fundamental right.” Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976).
All the 1st Amendment’s protections implicate fundamental rights regardless of
the level of scrutiny. The Supreme Court has said the Due Process Clause “provides
heightened protection against government interference with certain fundamental
rights and liberty interests” and then found this included “the specific freedoms
protected by the Bill of Rights.” Washington v. Glucksberg, 521 U.S. 702, 720
(1997). And as the Supreme Court held in Gitlow “we may and do assume that
freedom of speech and of the press—which are protected by the First Amendment
from abridgment by Congress—are among the fundamental personal rights and
‘liberties' protected by the due process clause of the Fourteenth Amendment from
impairment by the States.” Gitlow v. People of State of New York, 268 U.S. 652, 666
(1925). Thus, whenever the First Amendment is implicated, a fundamental right is
at issue. Therefore, the trial court erred in finding that strict scrutiny did not apply
to Mr. Zeleny’s equal protection claim despite correctly finding that his challenge to
the entertainment exemption does implicate First Amendment conduct. This Court
should find that pursuant to both the First and Second Amendment, Mr. Zeleny’s
challenge implicates a fundamental right and thus, strict scrutiny should apply. Such
classifications are presumed unconstitutional and will survive strict scrutiny only
45
when the government can show the law is narrowly tailored to a compelling
governmental interest. See Zablocki v. Redhail, 434 U.S. 374, 388 (1978) (“[w]hen
a statutory classification significantly interferes with the exercise of a fundamental
right, it cannot be upheld unless it is supported by sufficiently important state
interests and is closely tailored to effectuate only those interests”).
groups of people who wish to bear arms, drawing a line between those who wish to
bear arms while engaged in “entertainment” – i.e., movies, TV shows, and theatrical
performances – and people situated like Mr. Zeleny. Neither the statute itself nor its
legislative history gives any valid justification for this distinction between forms of
constitutionally protected speech. The Legislature gave no reasons for the
exemption. To the extent that the exception is intended, as it appears, to help the
lucrative entertainment industry, this type of distinction is constitutionally
impermissible. See Branzburg v. Hayes, 408 U.S. 665, 704 (1972).
The exemptions violate equal protection by respecting the rights of big movie
studios and production companies, while denying both First and Second Amendment
rights to individuals such as Mr. Zeleny. Regulations which serve to disadvantage
certain groups, or advantage certain groups over others, are subject to struct scrutiny,
see Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976), and would rarely, if
ever, be constitutional. Here, the State cannot identify a compelling interest
46
justifying this disparate treatment, nor that the exemptions are narrowly tailored.
Thus, this Court should find that California’s entertainment exemption violates the
Equal Protection Clause of the 14th Amendment. However, even if this Court finds
that Mr. Zeleny’s challenge does not implicate either the First or Second
Amendment, it should still find California’s entertainment exemption violates equal
protection because it cannot even survive rational basis review. Even under rational
basis review the entertainment exemption is unconstitutional. This Court’s decision
in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), is controlling. In Silveira, the
Court concluded that favoring retired peace officers over similarly-situated civilians
violated the Equal Protection Clause: favoring retired peace officers hoping to enjoy
greater access to firearms didn’t make sense in the context of a statute (there, the
Assault Weapons Control Act) whose overall aim was restricting access to firearms.
Silveira establishes that an active peace officer’s role as a law enforcement
agent provides a rational basis for distinguishing between a duly sworn and
authorized peace officer and a private citizen for the purpose of the carrying of
firearms in otherwise-proscribed areas such as school zones. Because retired officers
are not authorized to engage in law enforcement activities any more than other
private citizens, however, Silveira instructs that there is no rational reason to treat
them differently than similarly situated civilians by granting them a special
exemption. Similarly, there is no rational reason to give an exemption to movie
47
executives but not to Mr. Zeleny. The only conceivable reason is due to the political
and/or economic unpopularity of Mr. Zeleny’s activities.
The United States Supreme Court has long held that drawing classifications
based on political unpopularity violates the Equal Protection Clause. “[I]f the
constitutional conception of ‘equal protection of the laws’ means anything, it must
at the very least mean that a bare congressional desire to harm a politically unpopular
group cannot constitute a legitimate governmental interest.” United States Dep’t of
Agric. v. Moreno, 413 U.S. 528, 534 (1973), and Lawrence v. Texas, 539 U.S. 558,
580 (2003) (O’Connor, J., concurring) (“some objectives, such as ‘a bare . . . desire
to harm a politically unpopular group,’ are not legitimate state interests.”). In
Moreno, the Supreme Court decided that disqualifying members of unrelated
households from receiving food stamps was wholly irrelevant to the ostensible
purpose of preventing fraud. 413 U.S. at 536–38. That law failed rational basis
scrutiny because the legislative history revealed that Congress’ purpose in enacting
the statutory classification was to prevent “hippies” living together from obtaining
the same benefits offered to similarly-situated households. Id. at 534–35.
The Court explained that “if the constitutional conception of ‘equal protection
of the laws’ means anything, it must at the very least mean that a bare congressional
desire to harm a politically unpopular group cannot constitute a legitimate
governmental interest.” Id. Likewise, in City of Cleburne v. Cleburne Living Ctr.,
48
473 U.S. 432 (1985), the Supreme Court held that a city failed to show a rational
basis for its requirement that homes for the mentally retarded obtain a special use
permit. Id. The court struck down the law as unconstitutional because the city did
not impose the same permitting requirements on other buildings (such as apartment
buildings and fraternity houses) that posed the same concerns the city claimed to be
addressing with the special use requirement. Id. at 448–50. Put simply, the law
violated Equal Protection because it “appear[ed] . . . to rest on an irrational prejudice
against the mentally retarded.” Id. at 450. Similarly, even where “economic rights
are at stake, … the Equal Protection Clause []requir[es] that similarly situated
persons … be treated equally.” Merrifield v. Lockyer, 547 F.3d 978, 992 (9th Cir.
2008). The “distinctions … drawn” in legislation must be “applied with an even
hand.” Rinaldi v. Yeager, 384 U.S. 305, 309, 311 (1966); see also In re Eric J., 25
Cal. 3d 522, 531 (1979) (citation omitted) (“The concept of the equal protection …
recogni[zes] … that persons similarly situated with respect to the legitimate purpose
of the law receive like treatment.”)
In Merrifield, this Court held that a California economic-licensing scheme
violated equal protection because its exemptions discriminated between two subsets
of the pest-control industry. The “[g]eneral[]” assumption that creating exemptions
is “a rational and quintessentially legislative decision” does not hold when “the
government … undercut[s] its own rational basis for the licensing scheme by
49
excluding” “similarly situated” parties from the exemption’s scope. 547 F.3d at 990–
92. Such a scheme “fails to meet … rational basis review.” Id. at 991; see also St.
Joseph Abbey v. Castille, 712 F.3d 215, 226–27 (5th Cir. 2013) (law granting funeral
homes an exclusive right to sell caskets was not rationally related to the legitimate
purpose of protecting consumers where it “add[ed] nothing to protect consumers and
put[] them at a greater risk of abuse including exploitative prices”).Here,
California’s entertainment exemption similarly violates rational basis review. That
is because California’s entertainment exemption is there solely to benefit a
politically popular and well-connected group i.e. the entertainment industry.22
The legislature’s desire to “protect” favored groups’ “expectations” or
“respond to the demands of a political constituent” is not a cognizable state interest.
Fowler Packing Co., Inc. v. Lanier, 844 F.3d 809, 815 (9th Cir. 2016) (reversing
dismissal of an equal protection claim given arbitrary “carve out[s]” to select
groups); Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 878 (1985) (law
unconstitutional where its “aim” was “to favor domestic industry within the State”).
22
See Moreno, 413 U.S. at 534–35 (invalidating law aimed at targeting disfavored
group); Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496,
1509 (9th Cir. 1990) (reversing grant of summary judgment to the government on
equal protection claim where plaintiffs “contend … [they] were singled out to bear
the burden[s]” of the law; “[a]lthough the objective of [the law] is rational, it may
not be rational to single out” plaintiffs consistent with the Constitution); Christopher
Lake Dev. Co. v. St. Louis County, 35 F.3d 1269, 1274–75 (8th Cir. 1994) (similar).
50
There is no rational basis to give movie makers an exemption while at the same time
not allowing individuals such as Mr. Zeleny the opportunity for an exemption. They
are similarly situated “in all relevant respects” to other parties. Ashaheed v.
Currington, 7 F.4th 1236, 1251 (10th Cir. 2021) (citation omitted).23 Putting the
reasons for his protests aside, Mr. Zeleny is filming his events and yet California law
has a more “more onerous” burden on him. Trister v. Univ. of Miss., 420 F.2d 499,
502 (5th Cir. 1969). This fails rational basis review.24
Even if this Court applies rational basis review, this Court should find that
California’s entertainment exemption violates equal protection. At a bare minimum,
this Court should find the trial court erred in granting summary judgment to
California because “whether two people are similarly situated is usually a question
of fact for the jury.” Wynn v. N.Y.C. Hous. Auth., 2015 WL 4578684, at *5 (S.D.N.Y.
July 29, 2015) (citation omitted).
23
Reversing district court’s dismissal of equal protection claim based on non-
“meaningful” distinctions between groups because, under Twombly, a plaintiff’s
burden is to allege plausible facts showing that they are “similarly situated to others
… ‘in all relevant respects’—not all respects”.
24
“A statutory classification which does not bear a rational relationship to the
purpose which the statute is intended to serve” is unconstitutional. Parr v. Mun. Ct.,
3 Cal. 3d 861, 864 (1971).
51
III. CONCLUSION
This Court should find that California’s ban on the unloaded carry of firearms
violates the Second Amendment, and that the entertainment exemption violates
equal protection.
Respectfully submitted,
s/ Alan Alexander Beck
ALAN ALEXANDER BECK

Attorney at Law
2692 Harcourt Drive
San Diego, California 92123
Telephone: (619) 905-9105
Email: [email protected]
Attorney for Appellant
Dated: June 25, 2024.
52
STATEMENT OF RELATED CASES

Baird v. Bonta, No. 24-565
The Baird appeal also challenges California’s ban on the open carry of handguns. It
challenges California Penal Code sections 25850 and 26350.
53
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(f)
because, excluding the parts of the document exempted by Fed. R. App. P. 32(f), it
contains 12,659 words and complies with the word limit of Cir. R. 32-1.
2. This brief complies with the typeface and type size requirements of Fed. R.
App. P.32(a)(5) and (6) because it has been prepared in a proportionally spaced
typeface using Microsoft Word 365 in 14-point Times New Roman.
Dated: June 25, 2024.
/s/ Alan Alexander Beck

Alan Alexander Beck
54
CERTIFICATE OF SERVICE
I hereby certify that on June 25, 2024, I filed the foregoing Appellant’s
Opening Brief with the Clerk of the Court for the United States Court of Appeals
for the Ninth Circuit by using the appellate ACMS system.
I certify that all participants in the case are registered ACMS users and
that service will be accomplished by the appellate ACMS system.
/s/ Alan Alexander Beck

Alan Alexander Beck
55

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Case: 22-15870, 06/25/2024, ID: 12893333, DktEntry: 27, Page 1 of 68

In the United States Court of Appeals

ROB BONTA, California Attorney General, in his official capacity,

CITY OF MENLO PARK, a municipal corporation; DAVE BERTINI, an individual,

Appeal from a Judgment of United States District Court of the

Appellant’s Opening Brief

Alan Alexander Beck

Attorney for Appellant

TABLE OF AUTHORITIES ................................................................................... iii

JURISDICTIONAL STATEMENT ......................................................................... 3

STATEMENT OF THE ISSUES FOR REVIEW .................................................... 3

STATEMENT OF THE CASE ................................................................................. 3

I. California Law Generally Prohibits the Unloaded Open Carry of

II. Procedural History .......................................................................................... 5

A. Plaintiffs’ Constitutional Challenge to California’s Open Carry

B. The District Court’s Grant of Defendant’s Motion for Summary

1. Summary of the District Court’s Order ..................................... 6

SUMMARY OF THE ARGUMENT ....................................................................... 7

A. Plaintiff’s Conduct is Covered by the Second Amendment’s

B. California Must Identity a Historical Analogue to Its Open Carry

C. There is no Historical Tradition of Prohibiting Open Carry .............. 21

D. Cal. Pen. Code § 26400 Violates the Second Amendment Even

E. Long Guns Are Arms Protected by the Second Amendment ............ 32

F. California’s Ban on Long Arm Carry Violates the Second

G. The Entertainment Exemption Violates Equal Protection ................. 39

1. Mr. Zeleny’s Equal Protection Claim Implicates both First

STATEMENT OF RELATED CASES .................................................................. 53

CERTIFICATE OF COMPLIANCE ...................................................................... 54

CERTIFICATE OF SERVICE ............................................................................... 55

Arizona Dream Act Coalition v. Brewer,

Broussard v. Univ. of Cal. at Berkeley,

Brown v. Entm’t Merchs. Ass’n,

Celotex Corp. v. Catrett,

Christopher Lake Dev. Co. v. St. Louis County,

City of Cleburne v. Cleburne Living Ctr.,

Clark v. Community for Creative Non-Violence,

Del Monte Dunes at Monterey, Ltd. v. City of Monterey,

District of Columbia v. Heller,

Espinoza v. Montana Department of Revenue,

Fowler Packing Co., Inc. v. Lanier,

Gitlow v. People of State of New York,

Heller v. District of Columbia,

Kachalsky v. Cnty. of Westchester,

Local 144 Nursing Home Pension Fund v. Demisay,

Mass. Bd. of Retirement v. Murgia,

Metro. Life Ins. Co. v. Ward,

N.Y. State Rifle & Pistol Ass’n v. Bruen,

New York State Rifle & Pistol Assn., Inc. v. Bruen,

New York State Rifle & Pistol Ass’n v. Cuomo,

Oakland Tactical Supply, LLC v. Howell Township, Michigan,

Parr v. Mun. Ct.,

Peruta v. Cnty. of San Diego,

St. Joseph Abbey v. Castille,

Thornton v. City of St. Helens,

Trister v. Univ. of Miss.,

United States v. Alaniz,

United States v. Henry,

United States v. O’Brien,

United States v. Pedregon,

United States v. Pinjuv,