Young v. Hawaii (CA9); en banc *STAYED* 2-14-19

[Offwidth]

Originally Posted by Paladin

Frankly, I'm GLAD Young is going en banc.

I am NOT. We need wins NOW. Nobody know what happens two years from now.

[pacrat]

Judge Sidney Thomas is just another San Francisco 2A hating Democrat Politician.

Robert's claim that there are no political Judges on the Fed Bench is again proven to be a lie.

[TruOil]

I reiterate what I said a couple of months back: Whether it is loaded or unloaded, it will be "subject to reasonable regulation," i.e., there is a right to "bear" arms outside the home, but "may issue" for carry outside the home is constitutionally permissible.

The en banc court will reverse the panel, concluding that (as the Hawaii AG conveniently argued AFTER the decision) the statue applies to all residents of Hawaii and is therefore constitutional on its face. I assume that there is an "as applied" challenge as well, and the Court will hold that "may issue" is constitutionally permissible under an alleged intermediate scrutiny analysis, and that therefore the chief of police has discretion to deny issuance to plaintiff(s). They will also conclude that a reasonable regulation of the right is not an "infringement," even if the vast majority of Hawaii residents will be unable to exercise their Second Amendment rights off of private property.

The silver lining in this, possibly, is that it will finally present the may issue/shall issue question to the the Supreme Court.

[cockedandglocked]

Originally Posted by TruOil

there is a right to "bear" arms outside the home, but "may issue" for carry outside the home is constitutionally permissible.

I realize that isn't your personal opinion, and that you're just speculating what the panel might say, but that makes no sense and there is absolutely no way that they can publish an opinion that says "it's a right, except it isn't" and expect SCOTUS to ignore it.

It wouldn't be a right if someone can deny your ability to exercise it when you aren't prohibited from gun possession. For a constitutional right, they can require you to fill out a form and obtain a "license" (a la voter registration), and maybe even require you to pass a free class, but that's it, and they cannot deny your ability to meet those prerequisites and they must issue you the license if you aren't prohibited.

Shall Issue or "constitutional carry" are the only way for a right to be a right.

"May issue" policies effectively cause a right to become a privilege, and anyone with even basic high school civics knowledge would be able to see right through the panel's decision if it said that.

[ritter]

Originally Posted by TruOil

The silver lining in this, possibly, is that it will finally present the may issue/shall issue question to the the Supreme Court.

Rogers is awaiting cert at SCOTUS currently and will, if granted, answer this question. The specific question is good cause.

[mrrabbit]

Originally Posted by ritter

Rogers is awaiting cert at SCOTUS currently and will, if granted, answer this question. The specific question is good cause.

Problem is as I've already pointed out in the Roger's thread, Roger's tries to argue that Open Carry can be banned in favor of Concealed Carry - that one is predicated upon the other.

That alone is reason enough for SCOTUS to deny cert.

And before anyone tries to @%$#%$^$ on that point I just made above, go read the Roger's thread - I cited the cert request.

What sucks about this en banc is that the original decision is vacated - it's now a redo starting from scratch almost.

=8-(

[press1280]

Originally Posted by Paladin

Wouldn't it be something if SCOTUS grants cert in Rogers and reaches down and b---- slaps CA9 by grabbing the Young en banc appeal and deciding both cases together?

This is what I'm hoping. If you recall the 9th tried to en banc the Nordyke 3 judge panel opinion to eliminate a circuit split but Scotus soon after granted cert to McDonald.
Nordyke was then sent back to the 3 judge panel with McDonald as precedent.
At least we still have a split here with Wrenn.

[champu]

Originally Posted by TruOil

The silver lining in this, possibly, is that it will finally present the may issue/shall issue question to the the Supreme Court.

The ninth will probably sit on this case until NYRPA is decided and the fate of Rogers is determined. They will then take material out of context from both of those to s*** on what the three judge panel had to say about Young.

[press1280]

Originally Posted by champu

The ninth will probably sit on this case until NYRPA is decided and the fate of Rogers is determined. They will then take material out of context from both of those to s*** on what the three judge panel had to say about Young.

They may just do that. If a new scrutiny standard is decided, then Young should go back to the 3 judge panel. Then the 9th will en banc again

[cockedandglocked]

Originally Posted by champu

The ninth will probably sit on this case until NYRPA is decided and the fate of Rogers is determined. They will then take material out of context from both of those to s*** on what the three judge panel had to say about Young.

It would be in their best interest to make a ruling before NYRPA is decided then, no? So that they don't have to figure out how to deal with whatever precedent it sets?

[ke6guj]

arguments already scheduled for 6 weeks from now, March 25.

https://www.ar15.com/forums/General/...528/#i77215276

[ke6guj]

not sure if any of Trump's nominees will be confirmed before the hearing

[spalterego]

Originally Posted by ke6guj

not sure if any of Trump's nominees will be confirmed before the hearing

They won't matter. The judges for the en banc panel are selected next week.


CIRCUIT RULE 35-3. LIMITED EN BANC COURT
The en banc court, for each case or group of related cases taken en banc, shall consist of the Chief Judge of this circuit and 10 additional judges to be drawn by lot from the active judges of the Court. In the absence of the Chief Judge, an 11th active judge shall be drawn by lot, and the most senior active judge on the panel shall preside. (Rev. 1/1/06, 7/1/07)
The drawing of the en banc court will be performed by the Clerk or a deputy clerk of the Court in the presence of at least one judge and shall take place on the first working day following the date of the order taking the case or group of related cases en banc.
If a judge whose name is drawn for a particular en banc court is disqualified, recused, or knows that he or she will be unable to sit at the time and place designated for the en banc case or cases, the judge will immediately notify the Chief Judge who will direct the Clerk to draw a replacement judge by lot. (Rev. 1/1/06)
In appropriate cases, the Court may order a rehearing by the full court following a hearing or rehearing en banc.
Cross Reference:

So the pool of available judges is those sitting on the 9th Cir. as of Monday. [I think Monday is a working day for the court].
We should know by Tuesday who is on the panel.

[sfpcservice]

No 2a win from the 9th has survived en banc. We know why the took it, we know what the outcome will be. Necessary evil to endure before getting to scotus.

[TruOil]

Originally Posted by cockedandglocked

"May issue" policies effectively cause a right to become a privilege, and anyone with even basic high school civics knowledge would be able to see right through the panel's decision if it said that.

I agree, as did the Seventh Circuit in Moore v. Madigan and the D.C. carry case (whose name I always forget). But the anti-circuits have all approved "may issue" laws, which if I recall (at this time of day that is a tenuous proposition) that includes all of the usual suspects--NY, NJ, Ma, Md. All have basically concluded that out side the home= intermediate scrutiny (as they see that test), and that reasonable restrictions on all things 2A pass muster, including may issue and gun bans. So yeah, I am just prognosticating based on past history. Outside of the lack of logical rigor in those decisions, the one thing that bugs me the most is that in all of those cases the issues are decided as a matter of law on on questions of fact that should be decided by a jury. They accord legislative findings--and even the absence thereof--as binding, or they accept pone expert's opinion despite the fact that there are two or more experts who disagree. So basically it comes down to this: if a law is passed, it passes muster even if it was based on racist views or false data, but it is good because gunz is bad. And it is all a bunch of crap.

[BryMan92]

Originally Posted by mrrabbit

Problem is as I've already pointed out in the Roger's thread, Roger's tries to argue that Open Carry can be banned in favor of Concealed Carry - that one is predicated upon the other.

That alone is reason enough for SCOTUS to deny cert.

And before anyone tries to @%$#%$^$ on that point I just made above, go read the Roger's thread - I cited the cert request.

What sucks about this en banc is that the original decision is vacated - it's now a redo starting from scratch almost.

=8-(

Gould v. Morgan doesn't make this claim I think. Also up for cert.

[champu]

Originally Posted by cockedandglocked

It would be in their best interest to make a ruling before NYRPA is decided then, no? So that they don't have to figure out how to deal with whatever precedent it sets?

SCOTUS has before it a whole pile of weasel crap from the lower courts picking Heller apart to effectively make it the narrowest decision possible. I think the consensus is that SCOTUS took NYRPA to do at least some form of house cleaning on the matter.

If the 9th issues a Young en banc decision before NYRPA, then it joins the Heller-to-NYRPA weasel-crap pile. If they wait until after then they get to start a whole new crap pile.

[Paladin]

Originally Posted by ke6guj

arguments already scheduled for 6 weeks from now, March 25.

https://www.ar15.com/forums/General/...528/#i77215276

Thanks, but slight correction. That poster wrote (underlining added): "Already set oral argument week of March 25th. In San Fran. No specific date/time yet."

[mrrabbit]

Originally Posted by BryMan92

Gould v. Morgan doesn't make this claim I think. Also up for cert.

I'll take a look, not familiar with this one.

[Sputnik]

So there's no winning a 2A case in the 9th? It would seem to be not allowed. Every time we seem to have even the smallest glimpse of a win its en banc-ed and stolen away by the activist judges.
I'd be more upset but at least the SCotUS seem to be swinging to the right. I really hope we can get back some ground in the next few years.

[CCWFacts]

Originally Posted by spalterego

They won't matter. The judges for the en banc panel are selected next week.

CIRCUIT RULE 35-3. LIMITED EN BANC COURT
...
So the pool of available judges is those sitting on the 9th Cir. as of Monday. [I think Monday is a working day for the court].
We should know by Tuesday who is on the panel.

Thanks for the info on that. I would say, we will know by Tuesday whether we will win or lose as it's nearly expected to be a party line vote. Odds are we're going to lose, and then we'll be ready to ask for cert.

[pistol3]

Originally Posted by CCWFacts

Thanks for the info on that. I would say, we will know by Tuesday whether we will win or lose as it's nearly expected to be a party line vote. Odds are we're going to lose, and then we'll be ready to ask for cert.

Yep. It is just too bad we still have to go through the hassle of having a show hearing, and then waiting FOREVER for the decision everyone knows is coming anyway.

[LVSox]

Originally Posted by spalterego

So the pool of available judges is those sitting on the 9th Cir. as of Monday. [I think Monday is a working day for the court].
We should know by Tuesday who is on the panel.

The pool of judges are those 9th Circuit judges on fulltime (non-senior) status plus Senior judges who were on the original panel, i.e., O’Scannlain and Clifton.

And we will not know by Thursday who has been chosen for the en banc panel. We won’t know that until the argument calendar is posted, about a week before the day of argument.

[abinsinia]

Which of the judges are voting to take the case en banc ? I figured that the case would only be reheard if the judges wanted to reverse the panel decision, but if the judges aren't selected yet it seems possible that the en banc judges could just agree with the panel.

[kuug]

Originally Posted by abinsinia

Which of the judges are voting to take the case en banc ? I figured that the case would only be reheard if the judges wanted to reverse the panel decision, but if the judges aren't selected yet it seems possible that the en banc judges could just agree with the panel.

They didn't take this case up en banc to agree with the three judge panel. The only reason they have to take it up en banc is because they have the numbers and they want it overturned. No open carry, no conceal carry.

[LVSox]

Originally Posted by abinsinia

Which of the judges are voting to take the case en banc ? I figured that the case would only be reheard if the judges wanted to reverse the panel decision, but if the judges aren't selected yet it seems possible that the en banc judges could just agree with the panel.

Sure, it’s possible. But very unlikely. We already know one judge (Chief Judge Thomas) will be a vote to uphold HI’s laws. That means we need to get 6 out of the remaining 10 to go our way. Unfortunately, there are only 8-9 likely good judges for us left out of the 24 judges in the pool: O’Scainnlain, Ikea, Bea, Callahan, Bybee, Smith, Bennett, Nelson, and possibly Rawlinson.

So we basically need to hit 6 out of our 9, while they only need to hit 5 of their 15.

[BeAuMaN]

Originally Posted by Paladin

What's the likelihood Nichols will get merged into the Young en banc appeal?

Pluses/minuses?

At the very least, Nichols has indicated that he won't ask to be merged on the same appeal.

[CurlyDave]

Originally Posted by pistol3

Yep. It is just too bad we still have to go through the hassle of having a show hearing, and then waiting FOREVER for the decision everyone knows is coming anyway.

I don't think it will take very long at all to get a decision.

If they wait too long SCOTUS will come out with NYRPA and if the standard becomes strict scrutiny, they will have to conform to that. Which probably means that it becomes a win for us. I can hear the gnashing of teeth now.

OTOH, if the 9th quickly reaches a decision that may issue or no issue is OK, that is the law in the west until a new case comes to the surface. So, we get to go without for the longest period of time if they decide in a hurry.

They do not care at all about being at odds with SCOTUS -- they only care about denying our rights for as long as possible.

[pacrat]

They do not care at all about being at odds with SCOTUS -- they only care about denying our rights for as long as possible.

^^^TRUTH^^^

The LEFTIST 9TH CIRCUS, operates the same as the Leftist legislature in Excremento.

They do no care about being at odds with the CONSTITUTION -- they only care about denying our rights for as long as possible.

[press1280]

Originally Posted by sfpcservice

No 2a win from the 9th has survived en banc. We know why the took it, we know what the outcome will be. Necessary evil to endure before getting to scotus.

Outside of winning the lottery and getting a good panel there could be 2 outcomes:

The most likely is they allow HI's after-the-fact AG opinion that OC permits are available to non-security guards and uphold a fictitious may-issue scheme that hasn't issued any permits to non-security personnel.

The other is they go all-out and claim that public carry is not part of the 2A.

Either way they're in a tight box.

[Bhart356]

The anti-2A Ninth is making a strategic calculation. Their game all along has been to try to push as much 2A infringement as possible without waking up the sleeping giant - SCOTUS.

If Ninth leaves the panel ruling in effect then nationally it adds to the circuit split as to whether the Second Amendment applies outside the home. With the Young panel ruling in effect the circuit split would be 3-3. This increases pressure on SCOTUS to resolve the issue.

The Ninth does not want SCOTUS to get involved. They can retreat to some oddball form of not saying yes and not saying no to the Right by dodging the question. That is what they did in Peruta. They will find some other bogus reason to rule in Hawaii’s favor. But principally, they do not want to add to the Circuit split and it will remain 3-2. This reduces the odds of awakening the sleeping giant.

We should also remember there is no guarantee that SCOTUS will use NYSPRA v. New York to address the 2A outside the home issue. The scope of what SCOTUS will rule on may not be decided until they are well into trying to get five signatures on a majority decision. As far as the Ninth is concerned, a lesser circuit split takes some amount of pressure off SCOTUS to resolve that question in NYSRPA.

So far SCOTUS has been remarkably tolerant of Circuit splits regarding 2A questions. The Ninth Circuit’s best play is to overturn Young, dodge the question on 2A outside the home, and hope SCOTUS remains asleep.

[mrrabbit]

Originally Posted by Bhart356

The anti-2A Ninth is making a strategic calculation. Their game all along has been to try to push as much 2A infringement as possible without waking up the sleeping giant - SCOTUS.

If Ninth leaves the panel ruling in effect then nationally it adds to the circuit split as to whether the Second Amendment applies outside the home. With the Young panel ruling in effect the circuit split would be 3-3. This increases pressure on SCOTUS to resolve the issue.

The Ninth does not want SCOTUS to get involved. They can retreat to some oddball form of not saying yes and not saying no to the Right by dodging the question. That is what they did in Peruta. They will find some other bogus reason to rule in Hawaii’s favor. But principally, they do not want to add to the Circuit split and it will remain 3-2. This reduces the odds of awakening the sleeping giant.

We should also remember there is no guarantee that SCOTUS will use NYSPRA v. New York to address the 2A outside the home issue. The scope of what SCOTUS will rule on may not be decided until they are well into trying to get five signatures on a majority decision. As far as the Ninth is concerned, a lesser circuit split takes some amount of pressure off SCOTUS to resolve that question in NYSRPA.

So far SCOTUS has been remarkably tolerant of Circuit splits regarding 2A questions. The Ninth Circuit’s best play is to overturn Young, dodge the question on 2A outside the home, and hope SCOTUS remains asleep.

The problem is, Nichol's v. Brown.

You cannot discuss the implications of Young en banc, and completely ignore the Nichol's case.

It is the one case that aims directly at CA statutes regarding open carry in one's home AND in public citing most if not all the authorities listed in Heller v. DC.

Like Young, orals have already been held...it's awaiting a decision pending Young.

=8-|

[press1280]

Originally Posted by mrrabbit

The problem is, Nichol's v. Brown.

You cannot discuss the implications of Young en banc, and completely ignore the Nichol's case.

It is the one case that aims directly at CA statutes regarding open carry in one's home AND in public citing most if not all the authorities listed in Heller v. DC.

Like Young, orals have already been held...it's awaiting a decision pending Young.

=8-|

He's in an OC ban county. So even if the en banc panel tries to rule for HI's may issue law, Nichols would get a temporary win.
However, the 9th would have laid the blueprint for CA to just adopt a may issue OC scheme and we're no better off than before.

[press1280]

Originally Posted by Bhart356

The anti-2A Ninth is making a strategic calculation. Their game all along has been to try to push as much 2A infringement as possible without waking up the sleeping giant - SCOTUS.

If Ninth leaves the panel ruling in effect then nationally it adds to the circuit split as to whether the Second Amendment applies outside the home. With the Young panel ruling in effect the circuit split would be 3-3. This increases pressure on SCOTUS to resolve the issue.

The Ninth does not want SCOTUS to get involved. They can retreat to some oddball form of not saying yes and not saying no to the Right by dodging the question. That is what they did in Peruta. They will find some other bogus reason to rule in Hawaii’s favor. But principally, they do not want to add to the Circuit split and it will remain 3-2. This reduces the odds of awakening the sleeping giant.

We should also remember there is no guarantee that SCOTUS will use NYSPRA v. New York to address the 2A outside the home issue. The scope of what SCOTUS will rule on may not be decided until they are well into trying to get five signatures on a majority decision. As far as the Ninth is concerned, a lesser circuit split takes some amount of pressure off SCOTUS to resolve that question in NYSRPA.

So far SCOTUS has been remarkably tolerant of Circuit splits regarding 2A questions. The Ninth Circuit’s best play is to overturn Young, dodge the question on 2A outside the home, and hope SCOTUS remains asleep.

I'm curious if they can simply send this back to the district court with instructions to take into account the AG's opinion (that average folk are "eligible" for an OC permit, thus eating up more time and getting essentially the same result?

[surfgeorge]

Originally Posted by press1280

I'm curious if they can simply send this back to the district court with instructions to take into account the AG's opinion (that average folk are "eligible" for an OC permit, thus eating up more time and getting essentially the same result?

That AG opinion just shows what brazen liars they are and that they don't care in the least for any of the facts that contradict the absurd claims therein.

For instance, not only has this photocopied section of the Hawaii County PD application been so for many years, but it is STILL (as of December 2018 when I picked this one up) the part of the application for concealed and/or unconcealed carry licenses:



Those are the only two choices.

What's the "typical law-abiding citizen's" "authorized uniform"? I've never received mine! And what is the "typical law-abiding citizen's" "actual periods of service as an armed guard"? I guess they forgot to tell me about that too, as I never "served"!

[TruOil]

Originally Posted by surfgeorge

That AG opinion just shows what brazen liars they are and that they don't care in the least for any of the facts that contradict the absurd claims therein.

For instance, not only has this photocopied section of the Hawaii County PD application been so for many years, but it is STILL (as of December 2018 when I picked this one up) the part of the application for concealed and/or unconcealed carry licenses:



Those are the only two choices.

What's the "typical law-abiding citizen's" "authorized uniform"? I've never received mine! And what is the "typical law-abiding citizen's" "actual periods of service as an armed guard"? I guess they forgot to tell me about that too, as I never "served"!

IF the Ninth upholds the law based upon the late tot he game AG opinion (designed as it was to pull their proverbial bacon out of the fire), THEN there is a good, and at least theoretically quick declaratory relief action to force the Chiefs to issue a new application form in compliance with the AG opinion. Not that that would change the rate of issuance, absent an invasion of zombies...

[press1280]

Originally Posted by TruOil

IF the Ninth upholds the law based upon the late tot he game AG opinion (designed as it was to pull their proverbial bacon out of the fire), THEN there is a good, and at least theoretically quick declaratory relief action to force the Chiefs to issue a new application form in compliance with the AG opinion. Not that that would change the rate of issuance, absent an invasion of zombies...

I'm thinking though since they are moving at light speed that this may be all about sending the case back to the district court under the AG opinion and that the en banc panel may not even make any judgement call on the 2A. It's definitely underhanded but think about it, it'll waste another few years, and plaintiffs would merely be challenging the 9ths decision to allow the AG opinion.

I may be way off since IANAL, but this is one "out" for CA9. Their other options raise red flags and make a trip to Scotus likely if Rogers or Gould aren't taken.

[BryMan92]

Does anyone have information on the en banc judge composition yet?

[press1280]

Originally Posted by BryMan92

Does anyone have information on the en banc judge composition yet?

I don't think we find out until week of orals. I may be wrong though.

[surfgeorge]

Originally Posted by BryMan92

Does anyone have information on the en banc judge composition yet?

I believe that will be made public 7 days prior to the oral arguments, or 7 days prior to the week of the oral arguments.