Young v. Hawaii (CA9); Dismissed with predjudice 12-16-22

[press1280]

Originally Posted by TruOil

The point I was making is that the chiefs have always interpreted the statute as guards only, but now with the "clarification" from the DA, then you arguably have to wait to see what those chiefs do afterwards. Its not like we can't predict the answer--that no one has sufficient good cause--but it would need to be proved a la the case in D.C showing no issuance except to the privileged few under their "may issue" CCW scheme. Plus you have to look at open carry certs only. As the panel decision states, Peruta forecloses the CCW issue; the non-issuance of CCW permits is therefore a nonissue. Is there any evidence as to the number of open carry permits issued, and more importantly, wto whom they were issued?

Then en banc should be denied; the case will return to the district and the judge can now take into account that chiefs have not interpreted the statute correctly. I assume the case is still ripe (not mooted).
But in that case O'Scannlain's opinion is still controlling. Can the district court, with a straight face, say that Young stands for the proposition that a license can be denied to any average citizen?

[press1280]

Originally Posted by BAJ475

But isn't a sufficient need argument fatal when we are speaking of a constitutional right?

It should but the circuit courts have tried to create the "core" right of "in the home" and separate it from everything else-public carry. In essence, no protection except in the case of a total ban, which doesn't matter since we've seen you don't need a total ban on paper to accomplish a total ban in reality.

[kuug]

It will be interesting to see how the 9th factors in Justice Kavanaugh into their decision to grant or deny en banc

[dogrunner]

Precisely what States mandate unloaded open carry?..............California was to my knowledge sorta alone in such a requirement. Now Florida once had a licensing system that was county specific........while the matter of concealed/open was an issue of some debate. The issue of loaded or no was never a consideration under that law.

I suggest to you that your perspective is California centric and has little impact from a national point of view..........Yeah, I've heard of some instances wherein certain carry issues involving vehicles apply...usually involving game laws but never the sort of specific statutory regulation your state imposed with ULOC.

[dogrunner]

Rarebit, it is YOU that needs exposure to a broader experience relative to the subject at hand.

Firstly, the State and Ntl. park regulations are generally controlled by the jurisdiction wherein located. Ntl. Forests do, by policy, follow the law of the State in which located.....BUT...that was not the reference point addressed.

I ask again just WHICH States have ever required unloaded open carry other than California...........As stated, I can think of none that had such a mandate other than your own!

And more so, it truly doesn't make a lick of difference to me as I carry under LEOSA anyhoo......and that'd include your digs as well.

[Rail]

Kavanaugh was on the DC Circuit, the same Circuit that ruled DC's may-issue licensing regime for concealed carry unconstitutional and refused to hear DC's appeal en banc. That will be the model for whichever case(s) make it to SCOTUS in the next two years.

[surfgeorge]

Originally Posted by mrrabbit

As per second amendment, or equal protection....

Kavanaugh said it himself during the actual Senate hearing....CCW can be prohibited.

And he made it clear during the same hearing that he is bound by Heller v. DC.

=8-|

I just re-read Kavanaugh's dissent in Heller v. District of Columbia, aka Heller II (https://www.cadc.uscourts.gov/internet/opinions.nsf/DECA496973477C748525791F004D84F9/$file/10-7036-1333156.pdf). In that dissent he is arguing, among other things, that the proper way to evaluate possible infringements on the Second Amendment is via "text, history, and tradition", versus an "interest balancing" method such as strict scrutiny, intermediate scrutiny, or rational basis. (I disagree with some of his reasoning, especially regarding the "longstanding" criteria, as it is totally absurd to claim that machine guns may be more or less de facto banned because they are not in "common use"... because the reason they are not and have not been in common use is because they were made nearly impossible to possess via the requirements for ownership due to the NFA 1934, and subsequent legislation that made them too expensive to acquire for almost anyone.)

What is evident, and relevant to Young is that he uses the "text, history, and tradition" test to validate, six times, that "concealed carry may be banned", or other words to that effect, usually in conjunction with other permissible restrictions such as banning ownership and possession by felons, etc.

If people are counting on Kavanaugh to somehow support any claim that a state may not ban concealed carry, or regulate it out of existence de facto, then they are going to be losing that argument (again) at SCOTUS. We don't know what Kavanaugh or the other justices view of unconcealed carry is, but it's pretty clear what Kavanaugh thinks about concealed carry. Unless he has changed his mind. And since he spent 60 pages making the case that the SCOTUS precedents that he is obliged to follow make the case (among other things) that concealed carry can be banned, it's not that likely he will suddenly discover some other interpretation.

Waste of time to argue concealed carry. Hope Young doesn't.

[mit31]

His opinion was not his own, but a direct read of Heller, which was binding to him. As a SCOTUS justice, his opinion could indeed be different.

Originally Posted by surfgeorge

".... And since he spent 60 pages making the case that the SCOTUS precedents that he is obliged to follow make the case (among other things) that concealed carry can be banned, it's not that likely he will suddenly discover some other interpretation.

Waste of time to argue concealed carry. Hope Young doesn't."

[Peaceful John]

If we're voting, I think the preferred conclusion would be that open carry is the enumerated right. We've seen much mischief in Florida when a sidearm is inadvertently exposed. On the other side, it's reasonable to believe that if open is the right, concealed cannot be far behind.

[TruOil]

Originally Posted by Peaceful John

If we're voting, I think the preferred conclusion would be that open carry is the enumerated right. We've seen much mischief in Florida when a sidearm is inadvertently exposed. On the other side, it's reasonable to believe that if open is the right, concealed cannot be far behind.

Concealed carry will follow close on only if the politicians determine that shaming and SWATting are insufficient to discourage people from exercising their right to open carry, and that it is preferable, in the interest of public safety, to allow for shall issue CCW. Best not to scare the sheep.

Personally, I think that SCOTUS should decide that "carry" is the right, and give states the choice (on a shall permit basis) on the manner in which carry, open only, concealed only, or both, will be regulated.

[kuug]

What is the deadline for 9th circuit to grant/deny en banc?

[CandG]

Originally Posted by kuug

What is the deadline for 9th circuit to grant/deny en banc?

They have to do it sometime before the sun explodes and consumes the planet.

[Offwidth]

Originally Posted by cockedandglocked

They have to do it sometime before the sun explodes and consumes the planet.

Which will conveniently moot the issue.

[Paladin]

Originally Posted by kuug

What is the deadline for 9th circuit to grant/deny en banc?

As I've said before, deadlines are what courts impose upon parties, not upon themselves.

My *guess* is sometime before New Years Day.

[surfgeorge]

Originally Posted by Paladin

As I've said before, deadlines are what courts impose upon parties, not upon themselves.

My *guess* is sometime before New Years Day.

What year?

[Paladin]

Originally Posted by surfgeorge

What year?

This year.

Peruta took ~4 months to decide re. their sua sponte en banc request.

[surfgeorge]

Originally Posted by Paladin

This year.

Peruta took ~4 months to decide re. their sua sponte en banc request.

The response to the en banc petition isn't even due until November 8. Any particular reason(s) you think they'll render a decision in less that 7 weeks from that point?

[Califpatriot]

The en banc process is extremely confusing and dependent on many contingencies. I'm looking at a decision re en banc around mid-February. I could be entirely wrong.

I would guess the process would proceed as follows:

Nov. 8--Young's response to en banc petition due.
Nov. 29--Due date for any judge to issue 5.4(b) call
Early December--Panel declines to rehear.
14-28 days from then (end of the year): judge can call a vote
21 days from vote (late January)--time to submit memoranda by judges.
14 days after that (mid February)--time to vote

[wolfwood]

Originally Posted by Califpatriot

The en banc process is extremely confusing and dependent on many contingencies. I'm looking at a decision re en banc around mid-February. I could be entirely wrong.

I would guess the process would proceed as follows:

Nov. 8--Young's response to en banc petition due.
Nov. 29--Due date for any judge to issue 5.4(b) call
Early December--Panel declines to rehear.
14-28 days from then (end of the year): judge can call a vote
21 days from vote (late January)--time to submit memoranda by judges.
14 days after that (mid February)--time to vote

The Defendants did not ask for panel rehearing just for en banc.

[Paladin]

Originally Posted by surfgeorge

The response to the en banc petition isn't even due until November 8. Any particular reason(s) you think they'll render a decision in less that 7 weeks from that point?

Frankly, I've forgotten my reasoning and didn't write it down. It does seem quick, given en banc request was not made until Sept. At this point, my *guess* is because I believe CA9 will GVR it and not take it en banc at this point.

[Califpatriot]

Originally Posted by Paladin

my *guess* is because I believe CA9 will GVR it and not take it en banc at this point.

I'm not an expert on appellate procedure, but how can CA9 GVR it? Doesn't that usually refer to SCOTUS granting cert and then vacating/remanding the case back?

I do agree with Paladin that the chances of this being taken en banc are actually pretty low. It'd be setting up a catastrophic defeat for gun controllers to take it up en banc, reverse the panel, and then go up to SCOTUS.

[Offwidth]

Originally Posted by Califpatriot

. It'd be setting up a catastrophic defeat for gun controllers to take it up en banc, reverse the panel, and then go up to SCOTUS.

SCOTUS certainly changed for the better since the petition had been filed.

[wolfwood]

Originally Posted by Califpatriot

I'm not an expert on appellate procedure, but how can CA9 GVR it? Doesn't that usually refer to SCOTUS granting cert and then vacating/remanding the case back?

I do agree with Paladin that the chances of this being taken en banc are actually pretty low. It'd be setting up a catastrophic defeat for gun controllers to take it up en banc, reverse the panel, and then go up to SCOTUS.

The options are to take it en banc or not.
If the case does not go en banc we may need to wait for some disents.
If the case goes en banc expect an opinion unless something extremely odd happens.
There is a appellate version of gvr which is called summary affirmance (also related summary disposition) but that is not applicable at the en banc state.

If the en banc Court is okay with the Young panel the opinion will simply stand as do most opinion and the case will remand back to the district court unless the State files a cert petition with the SUpreme Court

[wolfwood]

Response filed

https://www.scribd.com/document/3926...-With-Addendum

[sfpcservice]

@wolfwood if you're ever near Fairfield, you have a cold one with your name on it! Thanks for all your work.

[surfgeorge]

Originally Posted by wolfwood

Response filed

https://www.scribd.com/document/3926...-With-Addendum

Not being an attorney, I can't evaluate the quality of the legal arguments, but as a person who despises the liars who make and enforce and now defend Hawaii's obviously totally unconstitutional violation of my rights, I delight in seeing the liars bull**** legal arguments characterized as "hogwash" and "Alice in Wonderland".

[Offwidth]

Am I reading it right that the response argues that all sorts of “good cause” regulations are OK, as long as “some” form of carry is allowed as not a “complete” ban.
Actually defending Massachusetts regime?

We are screwed.

It HAS to be a should issue OPEN carry request. Everything else will remain a de facto ban in counties like mine. How people keep not understanding that.

So bad.

[Offwidth]

In any case. All I want is an en banc denial. Then we will wish good luck to Mr. Nichols.

[BryMan92]

@Offwidth, probably the biggest reason why they cite MA (my home state) is probably that the application process is at a town/city level, not county, such that de facto bans are not as easily seen *and* that you can technically OC or CCW (if you get "No Restrictions"). While “good cause” varies, self defense is considered an acceptable answer (in some places, at least). See here for more information:

https://www.calguns.net/calgunforum/....php?t=1467171

If this case is overturned, then Hawaii has shot themselves in the foot by doubling-down.

Will read the response when I am not at work.

[ritter]

Originally Posted by wolfwood

Response filed

https://www.scribd.com/document/3926...-With-Addendum

Nicely done, wolfwood. I appreciate your frankness, even if the court doesn't. Enough is enough, indeed.

[phdo]

Originally Posted by sfpcservice

@wolfwood if you're ever near Fairfield, you have a cold one with your name on it! Thanks for all your work.

Same if you’re ever in San Jose.

[wolfwood]

Last thing is on the 18th amicus briefs will be filed
The following groups will be filing briefs.
Hawaii Firearms Coalition
Madison Society
SAF
Hawaii Rifle Association
San Diego County Gun Owners
Gun Owner's of America

So 6 total.

[Paladin]

Originally Posted by wolfwood

Last thing is on the 18th amicus briefs will be filed
The following groups will be filing briefs.
Hawaii Firearms Coalition
Madison Society
SAF
Hawaii Rifle Association
San Diego County Gun Owners
Gun Owner's of America

So 6 total.

The NRA isn't filing?

[CandG]

Originally Posted by Paladin

The NRA isn't filing?

Maybe one if those is the NRA affiliate for Hawaii? Sort of like our crpa? Just guessing, I didn't Google it.

[CandG]

Ok I just googled. Hawaii rifle association is the NRA affiliate for Hawaii. So essentially, NRA did file.

[adamkdoiron]

so does that mean en banc is denied?

[wolfwood]

Originally Posted by adamkdoiron

so does that mean en banc is denied?

No it means the time for the judges to decide whether to go en banc starts now.

[wolfwood]

This just got filed.


https://www.scribd.com/document/3933...-File-en-Banc-

[homelessdude]

Sounds like a rehash of all their original bull crap. The fact that no one but a few security guards can get one kind of says it all.

[surfgeorge]

Originally Posted by wolfwood

This just got filed.


https://www.scribd.com/document/3933...-File-en-Banc-

Can you cite precedent to file a reply to the reply to the reply?

And what's a "causal comparison"? Is that in contrast to a "correlative comparison"? /sarc

By the way, in response to my UIPA request, the state wanted to charge me $930 to provide the documents about how they decided to hire outside counsel and how much it was going to cost taxpayers of Hawaii. They included a list reasons why many documents wouldn't be provided, even at that cost, e.g. "attorney-client privilege", etc. So we don't know how much we're paying these expensive East Coast attorneys to misspell "casual" as "causal" , etc.