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

[TruOil]

Originally Posted by BAJ475

Unless you live in a state that allows and protects the right to carry outside of the home.

Let me be more precise: the right will be dead as far as those circuits are concerned, but state law, not federal law (absent controlling Supreme Court authority) will still define the scope of the right. Just don't expect that any new limitation on the right as currently exists in free or freer states will be reversed by any one of these circuits, such as those restrictions being proposed in Washington and Oregon.

[TruOil]

Originally Posted by rplaw

We need to create a basic narrative about Constitutional Rights and apply that narrative to the abusive laws and precedent that the Government and the Courts are creating in their efforts to curtail Rights in general. Not just Gun Rights, but all Rights. (Calif gun laws vis a vis Texas Anti-abortion laws - BOTH are attempts to unconstitutionally regulate a Right out of existence.) And then start pounding that narrative into the courts along with the facts of the individual cases.

The argument is no longer just about case law. We need to shift some of the focus to the unconstitutionality of the legislative and judicial attempts to redraft the BOR without the consent and/or ratification of Congress.

I am pretty sure that this has been tried, i.e., by incorporating First Amendment analysis into Second Amendment cases, but the anti-Circuits insist on treating the Second as a lesser right that the others in the BOR.

[njineermike]

Originally Posted by TruOil

I am pretty sure that this has been tried, i.e., by incorporating First Amendment analysis into Second Amendment cases, but the anti-Circuits insist on treating the Second as a lesser right that the others in the BOR.

I always find it hypocritcal when they are fully able to comprehend that the rest of the bills apply to people as individuals, then say the 2A applies to people as a collective, meaning, the state or government. Because reasons and feelings.

I've never understood how they can perform the logical mental gymnastics required to believe the government needed a codified law to prevent taking guns from itself and still have the processing power left to digest food.

[TruOil]

Originally Posted by njineermike

I always find it hypocritcal when they are fully able to comprehend that the rest of the bills apply to people as individuals, then say the 2A applies to people as a collective, meaning, the state or government. Because reasons and feelings.

I've never understood how they can perform the logical mental gymnastics required to believe the government needed a codified law to prevent taking guns from itself and still have the processing power left to digest food.

]

Becuz gunz is baad, m'kay? Since gunz is baad, the possession and carrying of gunz has to be prohibited as much as possible to keep the peoplz safe. And if that means misapplying law and facts, they will do it.

[rplaw]

Originally Posted by TruOil

I am pretty sure that this has been tried, i.e., by incorporating First Amendment analysis into Second Amendment cases, but the anti-Circuits insist on treating the Second as a lesser right that the others in the BOR.

I'm not talking about scrutiny and analysis as applied to Constitutional Rights. I'm talking Constitutional FRAMEWORK as established in Marbury v. Madison.

That case established the concept of Federalism. That the Federal Gov is supreme to States. The Constitution is supreme to Fed law. Thus, under that framework, enumerated Rights are supreme to both Fed and State laws and CANNOT be altered, amended, redacted, redrafted, or modified EXCEPT as provided by the Constitution.

STATES have no power to limit the scope of the Rights in the Constitution. No one would allow a State to pass a law abrogating the 8A's prohibition against cruel and unusual punishment (which is the argument against the death penalty). Why? Because States don't have the power to repeal any Amendment in the BOR. Nor can they pick and choose which Rights they will and won't allow to their citizens. It's an all or nothing deal.

SCOTUS determines the meaning behind the words but that determination cannot abrogate the actual words used.

As applied to the 2A, the States have been trying to do what is not permitted by the language in the Amendment - infringe. No "level of scrutiny analysis" will change that into any sort of authorization. The decision in Heller notwithstanding, the express language of the Amendment prohibits this. "Shall not" doesn't mean "sometimes if we really really think it's ok this time."

This is an argument we haven't been making.

[surfgeorge]

Some notes for clarifications of things stated in the above thread:

1. The "Hawaii" in Young v Hawaii is Hawaii County (aka The County of Hawaii), NOT the state of Hawaii. The state was included in the original lawsuit, but was granted a request to be removed. The county attorney was from Hawaii county, and represented no other legal entity (other than the county officials named in the suit) even though he did reference the state AG's amicus brief. I believe it was O'Scannlain who made clear at some point that the state was not involved.

2. There have NOT been "zero CCW licenses issued in 20 years". At least not in the state of Hawaii. There seemed to be at least ambiguity, if not outright confusion and/or misstatement by several of the parties about the facts re CCW licenses.

In 2000 the state instituted mandated reporting of various firearm statistics to the state by the county police departments, who do the registrations, issue firearms permits, accept CCW/open carry license applications and decide whether to issue those licenses. etc. Since 2000 there have been four CCW licenses issued in the entire state. Maui PD claims (personal communication) that the two licenses they issued in 2001 have no extant records, and that no one there currently has any information at all about those licenses. The two other CCW licenses were issued by Kauai PD (personal communication and annual statistical analysis of firearms related data issued by the Hawaii AG office) in 2006 (to a judge) and 2013 (likely to an active duty military member). I requested, and then appealed the denied request, via UIPA (Uniform Information Practices Act, Hawaii's equivalent of FOIA) all information re the Kauai licenses issued. All I eventually got (after more than a year) was one low quality reproduction page of each partially redacted license application. There was enough information there to determine that both licenses had been issued illegally, certainly outside the bounds and restrictions of the Hawaii statute regarding the licenses. (That's another story.)

Also mentioned in the presentation by Mr. Beck was the document from the police chief of Hawaii county, which was a personal letter to me (that I provided to Mr. Beck), that the chief 1. in his tenure as chief had never issued a CCW license, 2. in his 25 years on the force did not recall any CCW license ever being issued by Hawaii County PD, and 3. that also during that entire time on the force he never heard of a license having been issued prior to his employment by Hawaii County PD.

So whenever someone during orals said "no licenses issued in 20 years", they would be correct (actually 18 years for which records exist) if they were referring to Hawaii County, but not if they were referring to the state. If they said "never" they would be referring more of less to the statement of now-retired chief Kubojiri and his recollection of Hawaii County, but there is not any kind of record or documentation to substantiate that question one way or the other.

3. The attorney for the county was being disingenuous at best, and more likely knowingly lying, when he said that ordinary citizens would be considered for issuance of an "open carry" license because everyone is "engaged in the practice of protecting [their own] life and property". He, and everyone else knows that is a lie, because 1. Chief Kubojiri stated (personal correspondence) that those licenses would only be considered for employed security guards, and thus no point in even applying unless you have proof of such employment, and 2. the very forms required by the state to be filed monthly by each county lists two possible categories of carry licenses, and they are NOT "concealed" and "open"; they are, respectively "Citizen" and "Security". There is no "citizen security" option. I'm fairly certain I forwarded some of those forms to Mr. Beck in the past several years.

[wolfwood]

Originally Posted by surfgeorge

Some notes for clarifications of things stated in the above thread:

1. The "Hawaii" in Young v Hawaii is Hawaii County (aka The County of Hawaii), NOT the state of Hawaii. The state was included in the original lawsuit, but was granted a request to be removed. The county attorney was from Hawaii county, and represented no other legal entity (other than the county officials named in the suit) even though he did reference the state AG's amicus brief. I believe it was O'Scannlain who made clear at some point that the state was not involved.

2. There have NOT been "zero CCW licenses issued in 20 years". At least not in the state of Hawaii. There seemed to be at least ambiguity, if not outright confusion and/or misstatement by several of the parties about the facts re CCW licenses.

In 2000 the state instituted mandated reporting of various firearm statistics to the state by the county police departments, who do the registrations, issue firearms permits, accept CCW/open carry license applications and decide whether to issue those licenses. etc. Since 2000 there have been four CCW licenses issued in the entire state. Maui PD claims (personal communication) that the two licenses they issued in 2001 have no extant records, and that no one there currently has any information at all about those licenses. The two other CCW licenses were issued by Kauai PD (personal communication and annual statistical analysis of firearms related data issued by the Hawaii AG office) in 2006 (to a judge) and 2013 (likely to an active duty military member). I requested, and then appealed the denied request, via UIPA (Uniform Information Practices Act, Hawaii's equivalent of FOIA) all information re the Kauai licenses issued. All I eventually got (after more than a year) was one low quality reproduction page of each partially redacted license application. There was enough information there to determine that both licenses had been issued illegally, certainly outside the bounds and restrictions of the Hawaii statute regarding the licenses. (That's another story.)

Also mentioned in the presentation by Mr. Beck was the document from the police chief of Hawaii county, which was a personal letter to me (that I provided to Mr. Beck), that the chief 1. in his tenure as chief had never issued a CCW license, 2. in his 25 years on the force did not recall any CCW license ever being issued by Hawaii County PD, and 3. that also during that entire time on the force he never heard of a license having been issued prior to his employment by Hawaii County PD.

So whenever someone during orals said "no licenses issued in 20 years", they would be correct (actually 18 years for which records exist) if they were referring to Hawaii County, but not if they were referring to the state. If they said "never" they would be referring more of less to the statement of now-retired chief Kubojiri and his recollection of Hawaii County, but there is not any kind of record or documentation to substantiate that question one way or the other.

3. The attorney for the county was being disingenuous at best, and more likely knowingly lying, when he said that ordinary citizens would be considered for issuance of an "open carry" license because everyone is "engaged in the practice of protecting [their own] life and property". He, and everyone else knows that is a lie, because 1. Chief Kubojiri stated (personal correspondence) that those licenses would only be considered for employed security guards, and thus no point in even applying unless you have proof of such employment, and 2. the very forms required by the state to be filed monthly by each county lists two possible categories of carry licenses, and they are NOT "concealed" and "open"; they are, respectively "Citizen" and "Security". There is no "citizen security" option. I'm fairly certain I forwarded some of those forms to Mr. Beck in the past several years.

We are suing Hawaii County so all that matters is Hawaii County's rate of issuance. Again the state was noticed in this case which is that is required under the federal rules. Even though the State did not participate the Court can strike the law at issue if we prevail.

[TruOil]

Originally Posted by rplaw

I'm not talking about scrutiny and analysis as applied to Constitutional Rights. I'm talking Constitutional FRAMEWORK as established in Marbury v. Madison.

That case established the concept of Federalism. That the Federal Gov is supreme to States. The Constitution is supreme to Fed law. Thus, under that framework, enumerated Rights are supreme to both Fed and State laws and CANNOT be altered, amended, redacted, redrafted, or modified EXCEPT as provided by the Constitution.

STATES have no power to limit the scope of the Rights in the Constitution. No one would allow a State to pass a law abrogating the 8A's prohibition against cruel and unusual punishment (which is the argument against the death penalty). Why? Because States don't have the power to repeal any Amendment in the BOR. Nor can they pick and choose which Rights they will and won't allow to their citizens. It's an all or nothing deal.

SCOTUS determines the meaning behind the words but that determination cannot abrogate the actual words used.

As applied to the 2A, the States have been trying to do what is not permitted by the language in the Amendment - infringe. No "level of scrutiny analysis" will change that into any sort of authorization. The decision in Heller notwithstanding, the express language of the Amendment prohibits this. "Shall not" doesn't mean "sometimes if we really really think it's ok this time."

This is an argument we haven't been making.

Except that every state and federal court, from the lowest to the highest, has the right to interpret the scope of the rights guaranteed by the BOR, and have been doing just that for the last 200 years. For example, you have the First Amendment right of freedom of speech, but the government (*and thus the courts) can limit the time, place and manner of the expression, just not (generally speaking) the content, unless it is a call to riot, communication of state secrets, or threats of imminent personal injury or death, among others. (Now they want to go after "hate" speech as not within the right, but I think that that is a bridge too far.)

As applied in practice, if only the SCOTUS can interpret the BOR, how are courts to adjudicate matters or issues that have not been decided by the SCOTUS?

[rplaw]

Originally Posted by TruOil

Except that every state and federal court, from the lowest to the highest, has the right to interpret the scope of the rights guaranteed by the BOR, and have been doing just that for the last 200 years. For example, you have the First Amendment right of freedom of speech, but the government (*and thus the courts) can limit the time, place and manner of the expression, just not (generally speaking) the content, unless it is a call to riot, communication of state secrets, or threats of imminent personal injury or death, among others. (Now they want to go after "hate" speech as not within the right, but I think that that is a bridge too far.)

As applied in practice, if only the SCOTUS can interpret the BOR, how are courts to adjudicate matters or issues that have not been decided by the SCOTUS?

Rights are designed to curtail the Gov, not grant liberties to the people. Whenever Gov seeks to limit freedoms in a new manner not previously determined to be lawful, THEY are the ones who must prove the burden in all cases and their laws should have no effect until such proof is attained. Lower courts should never decide in favor of the States until such determination is made. They do not have the authority under the Constitution to do so since such a determination authorizes unlawful infringement and oppression rather than upholding the guarantees granted to us. Remember, if a law hasn't yet been determined to be a lawful infringement, it is by definition UNlawful.

If the courts won't uphold the document that charters them, then they have gone beyond reasonableness. By allowing States to determine what is and what isn't a constitutional law, States could also potentially determine that the Fed courts don't have any force over the the States. And that would be "the law" until the SCOTUS hears that case.

No court would sanction that and would immediately strike such a law. Yet, laws which defeat the BOR are treated differently. For no reason except that those laws do not strike directly at the courts. They strike only at the people who are the very foundation of our government. Thus, the current method of allowing unlawful acts by States to stand until the SCOTUS determines they are lawful elevates the courts above government and the people and lowers the people to a position subservient to their own government. At that point all of our Rights are stripped from us and we don't even know it. We have no guarantees of liberty UNLESS someone says so. How is that a guarantee?

[nick]

Originally Posted by njineermike

I always find it hypocritcal when they are fully able to comprehend that the rest of the bills apply to people as individuals, then say the 2A applies to people as a collective, meaning, the state or government. Because reasons and feelings.

I've never understood how they can perform the logical mental gymnastics required to believe the government needed a codified law to prevent taking guns from itself and still have the processing power left to digest food.

Oh, that's easy to understand: they're dishonest and corrupt people. Don' thank me

[BAJ475]

Originally Posted by nick

Oh, that's easy to understand: they're dishonest and corrupt people. Don' thank me

Or as often stated: "Politics Is The Second Oldest Profession. It Bears A Strong Resemblance To The First" In other words, politicians are whores and pimps, especially the liberal ones!

[kcbrown]

Originally Posted by rplaw

I'm not talking about scrutiny and analysis as applied to Constitutional Rights. I'm talking Constitutional FRAMEWORK as established in Marbury v. Madison.

That case established the concept of Federalism. That the Federal Gov is supreme to States. The Constitution is supreme to Fed law. Thus, under that framework, enumerated Rights are supreme to both Fed and State laws and CANNOT be altered, amended, redacted, redrafted, or modified EXCEPT as provided by the Constitution.

More precisely, except in ways provided by the Constitution that do not themselves conflict with the rights or with their protection. This is because the enumerated rights are Amendments to the Constitution, and as such supersede the Constitution whenever there is any conflict between what the Constitution allows and the enumerated rights. The only exception to that is with respect to later Amendments. When a later Amendment conflicts with an earlier one, the later one wins.

This clearly means that the enumerated rights, and their protection, overrides the power of the judiciary in any conflict between the two, since the power of the judiciary is derived from the pre-Amendment Constitution.

[kcbrown]

Originally Posted by TruOil

Except that every state and federal court, from the lowest to the highest, has the right to interpret the scope of the rights guaranteed by the BOR,

No. The courts have the duty to discover the scope of the rights guaranteed by the BOR. The Constitution does not confer the power to define that scope, or to "interpret" it, or any other such nonsense that connotes some kind of power over that scope (even if it otherwise did, the fact that the BoR is a set of Amendments to the Constitution would put them beyond that power, as that power was conferred by the unamended Constitution). A court has the duty to properly (i.e., on the basis of formal logic applied to all relevant objective facts) decide the case in front of it on the basis of the facts available to it, and to discover the intended meaning of anything that is ambiguous by using methods that are standard for that purpose on the basis of all available information. The courts are not empowered to shrink from that duty.

To insist otherwise is to insist that it is the will of the courts, and not the Constitution as amended by the Bill of Rights, that is the supreme law of the land, when it is the Constitution from which the courts derive their power in the first place, and to which they must be subservient.

[IVC]

Originally Posted by jwkincal

Too bad open carry isn't actually banned in CA; the 9th will point to the fact that in some (not small) portion of the state you can open carry, and say that satisfies the Intermediate Scrutiny.

The "concealed carry is not the right" was "plausible deniability" even if our side explicitly asked for *any* carry.

If we get a win with this panel, the en banc (assuming they go that way) will have to address once and for all whether "open carry is the right protected by 2A." Answering this alone is now tricky - they have said "concealed is not," so saying "open is not either" equals "2A doesn't protect carry at all." Something Kennedy wouldn't allow.

Saying that "open carry is the right" would be a huge win for us even if they used the cop out of "but, it can be eliminated in populated areas." Having a right that cannot be exercised where one lives is a much better position for our side than not having the right in the first place.

[IVC]

Originally Posted by wolfwood

...precedent, it must issue an en bane decision.

Freudian slip?

Also, aren't you the council in Young?

[press1280]

Originally Posted by IVC

The "concealed carry is not the right" was "plausible deniability" even if our side explicitly asked for *any* carry.

If we get a win with this panel, the en banc (assuming they go that way) will have to address once and for all whether "open carry is the right protected by 2A." Answering this alone is now tricky - they have said "concealed is not," so saying "open is not either" equals "2A doesn't protect carry at all." Something Kennedy wouldn't allow.

Saying that "open carry is the right" would be a huge win for us even if they used the cop out of "but, it can be eliminated in populated areas." Having a right that cannot be exercised where one lives is a much better position for our side than not having the right in the first place.

That would be another gem case that SCOTUS would have to take due to the legal gymnastics undertaken by the 9th.

[speedrrracer]

Originally Posted by IVC

Answering this alone is now tricky - they have said "concealed is not," so saying "open is not either" equals "2A doesn't protect carry at all." Something Kennedy wouldn't allow.

Kennedy doesn't have any say in what the 9th does -- as we've seen in the past, he has sometimes voted to overturn their decisions. If they slavishly obeyed his will, that would never have to happen. I'm guessing that you're assuming he's the linchpin in both 1) getting cert granted and 2) getting that 5th vote?

Saying that "open carry is the right" would be a huge win for us even if they used the cop out of "but, it can be eliminated in populated areas." Having a right that cannot be exercised where one lives is a much better position for our side than not having the right in the first place.

That sounds ridiculous, I probably don't understand it, so you might have to break it down for me. It seems that's a bit more than just a cop-out, it makes a mockery of your "huge win". The ruling would change nothing -- pro-2A states would remain so, and anti-2A states could continue to eliminate our civil rights entirely.

If we can agree SCOTUS is never going to get into defining what magic formula determines if an area is populated or not, then we can agree states like CA would just say, "CA has humans, ergo it is populated, ergo no 2A" so there wouldn't even be a point to going to SCOTUS if that's your idea of a "huge win". What am I missing? Where's the "huge win"?

[randomBytes]

Face it; until one of the libs on SCOTUS is replaced by a more conservative judge, we are screwed in CA at least.

[wolfwood]

Originally Posted by IVC

Freudian slip?

Also, aren't you the council in Young?

Yes this is my case.

[IVC]

Originally Posted by speedrrracer

Kennedy doesn't have any say in what the 9th does -- as we've seen in the past, he has sometimes voted to overturn their decisions. If they slavishly obeyed his will, that would never have to happen. I'm guessing that you're assuming he's the linchpin in both 1) getting cert granted and 2) getting that 5th vote?

Yes, it's about being "the 5th vote" if CA-9 declared that the right to carry didn't exist.

It's one thing to stay out of debate on *concealed* carry, quite another to explicitly state that the right doesn't exist at all.

Originally Posted by speedrrracer

It seems that's a bit more than just a cop-out, it makes a mockery of your "huge win". The ruling would change nothing -- pro-2A states would remain so, and anti-2A states could continue to eliminate our civil rights entirely.

Allowing for "zoning out of fundamental rights" is another very risky proposition for SCOTUS to allow - imagine "you can be gay in the same areas where you can carry a gun" law, or "a clinic can provide abortion as long as it's 100 miles away from the nearest paved road" law.

It would open door to much more serious smackdown and CA-9 is fully aware of it.

Originally Posted by speedrrracer

What am I missing? Where's the "huge win"?

Having a right recognized and fighting for meaningful availability of the right is much easier than fighting for a right that doesn't exist.

[sfpcservice]

Originally Posted by wolfwood

Yes this is my case.

Nice work, thank you.

[kcbrown]

Originally Posted by IVC

Allowing for "zoning out of fundamental rights" is another very risky proposition for SCOTUS to allow - imagine "you can be gay in the same areas where you can carry a gun" law, or "a clinic can provide abortion as long as it's 100 miles away from the nearest paved road" law.

It would open door to much more serious smackdown and CA-9 is fully aware of it.

Seriously?

Why do you continue, even now, to insist on presuming that a court like the 9th Circuit is going to be consistent about the application of such a principle to other areas of law? That is clearly what you must presume for the proposition in question to be "risky" at all.

No, for other areas of law, the 9th Circuit will obviously strike laws which impose upon a right in that way, thus yielding a result that the Supreme Court would be happy with. It's only for laws which impose upon the right to arms that the 9th Circuit will happily let such laws stand, in which case they don't have to worry about SCOTUS at all since SCOTUS has clearly demonstrated that it will refuse cert, and that's that.

More succinctly, it's not "zoning out of fundamental rights" that the 9th Circuit would be allowing, it's "zoning out of the right to lethal arms, and only that" that it would be allowing.

As such, the case you're thinking of will never make it to SCOTUS in the first place, much less end up "forcing" the 9th Circuit to treat the right to arms in the same way as other rights.


You really need to learn and understand a central term here: "arbitrary and capricious". Once you understand the full ramifications of that and how it applies to the 9th Circuit, you'll understand the error in your thinking here.

Having a right recognized and fighting for meaningful availability of the right is much easier than fighting for a right that doesn't exist.

Not when the court you're fighting in front of is the 9th Circuit, and the right you're fighting for is the right to arms. For the first, the 9th Circuit will obviously (because it can) decide that the law somehow "satisfies" whatever arbitrary criteria it "imposes" so that it may stand. For the second, the Supreme Court will simply deny cert unless the plaintiff is a poor downtrodden homeless woman who is attempting to use a nonlethal weapon to protect herself.

[TruOil]

Originally Posted by kcbrown

No. The courts have the duty to discover the scope of the rights guaranteed by the BOR. The Constitution does not confer the power to define that scope, or to "interpret" it, or any other such nonsense that connotes some kind of power over that scope (even if it otherwise did, the fact that the BoR is a set of Amendments to the Constitution would put them beyond that power, as that power was conferred by the unamended Constitution). A court has the duty to properly (i.e., on the basis of formal logic applied to all relevant objective facts) decide the case in front of it on the basis of the facts available to it, and to discover the intended meaning of anything that is ambiguous by using methods that are standard for that purpose on the basis of all available information. The courts are not empowered to shrink from that duty.

To insist otherwise is to insist that it is the will of the courts, and not the Constitution as amended by the Bill of Rights, that is the supreme law of the land, when it is the Constitution from which the courts derive their power in the first place, and to which they must be subservient.

This is what is called "mincing words." There is no conceivable difference between "discovering the scope or intended meaning" of the BOR or any other provision of the Constitution and "interpreting" or ascertaining the scope of such laws. And as you silently agree, trial courts do this all the time unless directed by a particular interpretation dictated by a higher court. The ultimate, but not the sole power to interpret the Constitution is invested in the Supreme Court.

[TruOil]

Originally Posted by rplaw

Rights are designed to curtail the Gov, not grant liberties to the people. Whenever Gov seeks to limit freedoms in a new manner not previously determined to be lawful, THEY are the ones who must prove the burden in all cases and their laws should have no effect until such proof is attained. Lower courts should never decide in favor of the States until such determination is made. They do not have the authority under the Constitution to do so since such a determination authorizes unlawful infringement and oppression rather than upholding the guarantees granted to us. Remember, if a law hasn't yet been determined to be a lawful infringement, it is by definition UNlawful.

If the courts won't uphold the document that charters them, then they have gone beyond reasonableness. By allowing States to determine what is and what isn't a constitutional law, States could also potentially determine that the Fed courts don't have any force over the the States. And that would be "the law" until the SCOTUS hears that case.

No court would sanction that and would immediately strike such a law. Yet, laws which defeat the BOR are treated differently. For no reason except that those laws do not strike directly at the courts. They strike only at the people who are the very foundation of our government. Thus, the current method of allowing unlawful acts by States to stand until the SCOTUS determines they are lawful elevates the courts above government and the people and lowers the people to a position subservient to their own government. At that point all of our Rights are stripped from us and we don't even know it. We have no guarantees of liberty UNLESS someone says so. How is that a guarantee?

I have read a lot of nonsense from lawyers over the years, but this really takes the cake. What you are saying, when reduced to its essentials, is that all laws are (or should be) unconstitutional until their constitutionality is determined by the Supreme Court. As an attorney ( I presume) you know full well that all laws are presumed lawful until their unlawfulness is determined by a court of law. It would mean that a state would have to pass a law and then file an action in some court to determine that it is constitutional, putting the law on hold for years until that final determination is made. The ONLY time this occurs is when a trial or appellate court enjoins the application of a law until final determination is made (at that level).

And you must also know that Article III of the Constitution, section 2, empowers not just the Supreme Court, but such inferior courts as it establishes, to decide such controversies. There are no amendments to the Constitution that act in derogation of these powers.

[kcbrown]

Originally Posted by TruOil

This is what is called "mincing words." There is no conceivable difference between "discovering the scope or intended meaning" of the BOR or any other provision of the Constitution and "interpreting" or ascertaining the scope of such laws.

Of course there is, and the difference is a crucial one.

The former implies an objective truth to be discovered, and limits the scope of activity to discovery of that truth. Here, that truth is what the originators of the documented intended to communicate.

The latter implies at least the possibility of a subjective determination that arises from the meanings that the people on the court choose to (or find themselves naturally gravitating towards, due to upbringing, cultural influences, etc.) ascribe to that which the Constitution says.

This difference is utterly massive, and is directly responsible for the state of affairs that we find ourselves in, for it is the latter, and not the former, that courts have engaged in.

And as you silently agree, trial courts do this all the time unless directed by a particular interpretation dictated by a higher court. The ultimate, but not the sole power to interpret the Constitution is invested in the Supreme Court.

The rightful power ascribed to the courts is to, when the intended meaning is not already plainly obvious (said obviousness arising as a result of prior discoveries, the result of direct communication, the result of the use of language being identical now to that of the time the Constitution was authored, or the result of the nonexistence of any alternative meanings), discover the intended meaning of the Constitution by way of the most effective and accurate methods that are available (which generally involve research into the use of language at the time, the historical context of that which was said, etc.), and then apply those meanings to the instant case.

They do not have the rightful power to "interpret" the Constitution. Such a power confers the ability to assign meaning, not merely to discover it. But assignment of meaning causes the end result to be that which the assigner wishes, not that which the originator intended.


Again, this is a critical difference. It is the difference between a court being subservient to the Constitution and the court being superior to it. This is so because any court which has the power to "interpret" the Constitution has the power to alter its meaning from that which was intended. That is not a legitimate power. A court which has the power to "interpret" the Constitution has the power to "interpret" it to mean that the Constitution confers upon the court ultimate absolute power, a direct contravention of the entire point of having a Constitution in the first place.

[Citizen_B]

Originally Posted by kcbrown

Not when the court you're fighting in front of is the 9th Circuit, and the right you're fighting for is the right to arms. For the first, the 9th Circuit will obviously (because it can) decide that the law somehow "satisfies" whatever arbitrary criteria it "imposes" so that it may stand. For the second, the Supreme Court will simply deny cert unless the plaintiff is a poor downtrodden homeless woman who is attempting to use a nonlethal weapon to protect herself.

IVC does have a point though. For SCOTUS to cert or not depends on what the 9th uses as justification in their ruling for State. If the 9th plainly says the 2A does not protect the right to carry open, has already said it doesn't protect the right to carry concealed in Peruta, and ignores addressing the fact that there is no other way to carry, the obvious total ban on carry outside the home might get SCOTUS's attention.

If the 9th says the right isn't being infringed with the current Hawaii regulatory scheme in place and doesn't actually state the 2A protects the right to carry open, well......

[kcbrown]

Originally Posted by Citizen_B

IVC does have a point though. For SCOTUS to cert or not depends on what the 9th uses as justification in their ruling for State. If the 9th plainly says the 2A does not protect the right to carry open, has already said it doesn't protect the right to carry concealed in Peruta, and ignores addressing the fact that there is no other way to carry, the obvious total ban on carry outside the home might get SCOTUS's attention.

If the 9th says the right isn't being infringed with the current Hawaii regulatory scheme in place and doesn't actually state the 2A protects the right to carry open, well......

There is no evidence at all that SCOTUS grants cert solely on the basis of the justification for ruling in favor of the state. If you don't believe me, you need only examine Friedman v Highland Park, where the justification was, in part, that the law made the people feel safer.

Indeed, if it is only the basis of the justification for such decisions that the Court uses for deciding to grant or deny cert, then that has dire implications, for it means that the Court does not substantially disagree with the reasoning behind any of the prior decisions which it has denied cert to.

No, I raised the "poor downtrodden homeless person with a nonlethal weapon" condition for a very good reason. If that reason is invalid, then it means that the situation is even worse than what I've been arguing, and leaves IVC's argument in an even worse position than it already is.

[Citizen_B]

Originally Posted by kcbrown

There is no evidence at all that SCOTUS grants cert solely on the basis of the justification for ruling in favor of the state. If you don't believe me, you need only examine Friedman v Highland Park, where the justification was, in part, that the law made the people feel safer.

Indeed, if it is only the basis of the justification for such decisions that the Court uses for deciding to grant or deny cert, then that has dire implications, for it means that the Court does not substantially disagree with the reasoning behind any of the prior decisions which it has denied cert to.

No, I raised the "poor downtrodden homeless person with a nonlethal weapon" condition for a very good reason. If that reason is invalid, then it means that the situation is even worse than what I've been arguing, and leaves IVC's argument in an even worse position than it already is.

I do believe, hopefully mistakingly, that your statement is exactly correct in practice that "the Court does not substantially disagree with the reasoning behind any of the prior decisions which it has denied cert to". You see this all the time in who dissents on cert denials. Cynically, the minority gets to write dissents and eat crow, and yes that is a sad state of affairs if true. I have a hard time believing SCOTUS is just too busy to take important cases that blatantly infringe on constitutional rights.

[randomBytes]

Originally Posted by thorium

Interesting. It seems the 3 judge panel realizes it will be hard for them to avoid finding that some sort of carry outside the home is part of the 2nd and that this law is effectively a full ban...

O’Scannlain - we know where he stands (author of original Peruta opinion that was overruled en banc)

So, what are the chances that O’Scannlain is sufficiently peeved at Peruta outcome, that he largely repeats the Peruta analysis here - it was after all very good and a shame to waste all that work.

[kcbrown]

Originally Posted by Citizen_B

I do believe, hopefully mistakingly, that your statement is exactly correct in practice that "the Court does not substantially disagree with the reasoning behind any of the prior decisions which it has denied cert to". You see this all the time in who dissents on cert denials. Cynically, the minority gets to write dissents and eat crow, and yes that is a sad state of affairs if true. I have a hard time believing SCOTUS is just too busy to take important cases that blatantly infringe on constitutional rights.

SCOTUS certainly isn't too busy to take important cases about blatant Constitutional infringements -- when those infringements are against any other Constitutional right.

The right to arms is "exceptional", in that it should be obvious by now that SCOTUS does not regard the right to arms as a real right at all. It has retreated from its prior position that the right to arms is a real right.

I would bet money that if Heller or especially McDonald, were being litigated today after the events of the past 10 years, SCOTUS would deny cert to the resulting case, most especially if the lower court decision were against the right (if the lower court favored the right, SCOTUS would probably grant cert and either overturn on some technicality or uphold in such a limited way as to make the victory an empty one).

[TruOil]

Originally Posted by kcbrown

Of course there is, and the difference is a crucial one.

The former implies an objective truth to be discovered, and limits the scope of activity to discovery of that truth. Here, that truth is what the originators of the documented intended to communicate.

The latter implies at least the possibility of a subjective determination that arises from the meanings that the people on the court choose to (or find themselves naturally gravitating towards, due to upbringing, cultural influences, etc.) ascribe to that which the Constitution says.

This difference is utterly massive, and is directly responsible for the state of affairs that we find ourselves in, for it is the latter, and not the former, that courts have engaged in.




The rightful power ascribed to the courts is to, when the intended meaning is not already plainly obvious (said obviousness arising as a result of prior discoveries, the result of direct communication, the result of the use of language being identical now to that of the time the Constitution was authored, or the result of the nonexistence of any alternative meanings), discover the intended meaning of the Constitution by way of the most effective and accurate methods that are available (which generally involve research into the use of language at the time, the historical context of that which was said, etc.), and then apply those meanings to the instant case.

They do not have the rightful power to "interpret" the Constitution. Such a power confers the ability to assign meaning, not merely to discover it. But assignment of meaning causes the end result to be that which the assigner wishes, not that which the originator intended.


Again, this is a critical difference. It is the difference between a court being subservient to the Constitution and the court being superior to it. This is so because any court which has the power to "interpret" the Constitution has the power to alter its meaning from that which was intended. That is not a legitimate power. A court which has the power to "interpret" the Constitution has the power to "interpret" it to mean that the Constitution confers upon the court ultimate absolute power, a direct contravention of the entire point of having a Constitution in the first place.

Obviously you are not a lawyer. What you describe is what lawyers and courts do when they "interpret" a statute. The word differences are meaningless; you are adding your own personal meaning to "interpret" that neither courts nor lawyers employ; to "interpret" does not mean to change the meaning of, but instead means "to ascertain the meaning of."

[rplaw]

Originally Posted by TruOil

I have read a lot of nonsense from lawyers over the years, but this really takes the cake. What you are saying, when reduced to its essentials, is that all laws are (or should be) unconstitutional until their constitutionality is determined by the Supreme Court. As an attorney ( I presume) you know full well that all laws are presumed lawful until their unlawfulness is determined by a court of law. It would mean that a state would have to pass a law and then file an action in some court to determine that it is constitutional, putting the law on hold for years until that final determination is made. The ONLY time this occurs is when a trial or appellate court enjoins the application of a law until final determination is made (at that level).

Why is this the framework? Why is this framework "more valid" than the one I posited? Shouldn't the proper framework be, once a State enacts a law, it's the law unless it's challenged on Constitutional grounds? And, if that's done, then "the law" should automatically be enjoined until it's Constitutional legality is established? Isn't there precedent that establishes that the denial of Constitutional Rights is an irreparable harm? So why do "laws" get precedent over harms to Rights that are irreparable?

The answer lies in a failure to actually uphold the framework of Federalism. By Legislators, the Courts and The People.

And you must also know that Article III of the Constitution, section 2, empowers not just the Supreme Court, but such inferior courts as it establishes, to decide such controversies. There are no amendments to the Constitution that act in derogation of these powers.

But, the Constitution is subservient to guarantees in the BOR. How is it, that the BOR can be amended and/or modified by an arm of the Gov subservient to Congress and the Constitution? Doesn't Marbury v. Madison teach us that's not proper in its "the power to tax is the power to destroy" language?

The Court should not allow States to impinge upon enumerated Rights without checks or balances in favor of the holders of those Rights. The test for an injunction cedes power to the States over the Rights of the People. It grants States the power to "tax" (ie; infringe). And that is simply not the intent of the framers in any fashion.

[kcbrown]

Originally Posted by TruOil

Obviously you are not a lawyer. What you describe is what lawyers and courts do when they "interpret" a statute.

Really? Then explain the refusal of the courts to dive into the historical context of the 2nd Amendment, and why they substitute "scrutiny" for that.

Clearly the courts aren't doing what I describe when they "interpret" the Constitution, at least for 2nd Amendment issues. Indeed, the entire notion of "scrutiny" and what it entails clearly contradicts your claim.

Courts sometimes do what I say. But only sometimes.

The word differences are meaningless; you are adding your own personal meaning to "interpret" that neither courts nor lawyers employ; to "interpret" does not mean to change the meaning of, but instead means "to ascertain the meaning of."

Is that so?

If the court "interprets" a statute to mean A and issues a decision on that basis, but the original author of the statute says in good faith that it means B, which one of the two is correct, and which one has changed the statute's meaning?

Let me be absolutely clear here. When I say that the court "changes" the meaning of the law/Constitution/etc., I mean it has decided to use a meaning that differs from that which the original author(s) intended. When dealing with a written document, the only valid meaning is that which the originator intended. To insist otherwise is to undermine the very purpose of written communication, to render it arbitrary and ultimately worthless (for if one can substitute one's own preferred meaning in place of that which was intended, one may as well dispense with the original altogether).

Therefore, any time a court uses an "interpretation" that differs from the originator's intended meaning, the court is changing the meaning, something that is beyond its legitimate power.

My argument about the difference between "interpret" and "discover" stands, because the former is a superset of the latter, whilst the latter is the only valid activity of the court as regards meaning. And yet the courts engage in invalid assignment of meaning far too often. The court cases we have litigated are replete with that. So don't claim that the courts do what I say they should be doing when the evidence is irrefutable that they don't.

[TruOil]

Originally Posted by kcbrown

Really? Then explain the refusal of the courts to dive into the historical context of the 2nd Amendment, and why they substitute "scrutiny" for that.

Clearly the courts aren't doing what I describe when they "interpret" the Constitution, at least for 2nd Amendment issues. Indeed, the entire notion of "scrutiny" and what it entails clearly contradicts your claim.

Courts sometimes do what I say. But only sometimes.




Is that so?

If the court "interprets" a statute to mean A and issues a decision on that basis, but the original author of the statute says in good faith that it means B, which one of the two is correct, and which one has changed the statute's meaning?

Let me be absolutely clear here. When I say that the court "changes" the meaning of the law/Constitution/etc., I mean it has decided to use a meaning that differs from that which the original author(s) intended. When dealing with a written document, the only valid meaning is that which the originator intended. To insist otherwise is to undermine the very purpose of written communication, to render it arbitrary and ultimately worthless (for if one can substitute one's own preferred meaning in place of that which was intended, one may as well dispense with the original altogether).

Therefore, any time a court uses an "interpretation" that differs from the originator's intended meaning, the court is changing the meaning, something that is beyond its legitimate power.

My argument about the difference between "interpret" and "discover" stands, because the former is a superset of the latter, whilst the latter is the only valid activity of the court as regards meaning. And yet the courts engage in invalid assignment of meaning far too often. The court cases we have litigated are replete with that. So don't claim that the courts do what I say they should be doing when the evidence is irrefutable that they don't.

This is a political argument, not a legal one. And yes, the courts can be quite political. But let me throw this out there: courts do NOT look for the "intent" behind a statute unless a) the statute is ambiguous, and b) the ambiguity cannot be resolved through normal rules of construction. Ascertaining intent is discouraged because different legislators/authors may have different intent and understandings, which intent is often muddied through the legislative process of amendment. Let me give you an example. There is a California statute that, when passed in the Assembly, used the phrase, "person over the age of 21." The Senate, in its infinite wisdom, changed that phrase to (an adult." So tell me, are you an adult when you turn 21--or when you turn 18? And you know what, it makes a real difference in real world cases. Yet there isn't one word in the legislative history that explains why the change was made, or what the amender's "intent" was.

[kcbrown]

Originally Posted by TruOil

This is a political argument, not a legal one.

It is neither. It is a logical argument. It starts with the purpose of written communication (well, rational written communication, at any rate -- some written communication exists for the purpose of generating an emotional response, but that's not what I'm talking about here) and goes inexorably from there.

And yes, the courts can be quite political.

It is not just that they can be political, it's that they are. This is the entire reason they don't consistently follow rigorous standards and use all available means (including actually consulting the originators when possible) for ascertaining intended meaning.

But let me throw this out there: courts do NOT look for the "intent" behind a statute unless a) the statute is ambiguous, and b) the ambiguity cannot be resolved through normal rules of construction.

This directly supports my point. The intended meaning of the statute is its entire reason for existing in the first place! For the courts to insist that the meaning of a statute differs from that which was intended is for the courts to craft legislation, by piggybacking their own preferences (i.e., whatever they choose the meaning to be) on top of the existing wording of the law.

Ascertaining intent is discouraged because different legislators/authors may have different intent and understandings, which intent is often muddied through the legislative process of amendment.

That is an excuse, not a reason. It's an excuse because it's simply an admission that the job of ascertaining intent is one that may be inexact or difficult. That does nothing to relieve the courts of their responsibility to engage in the attempt in the first place. I'm not asking for the impossible here. If the court simply cannot ascertain the original intended meaning because there simply is insufficient evidence to even hint at it, then it has to do its best to assign the meaning that is most likely to match that original intent. This is no different than what any one of us would do in the event we were faced with uncertainty about what someone else meant.

When we are uncertain about something that someone else said and are actually interested in understanding it, we ask them what they meant. We don't substitute our own preference and then insist that it's what they must have meant. If the originator cannot be consulted, then we go looking at things like the context in which it was said, the understood meaning of the terms used at the time, etc. In essence, we do everything we can to actually ascertain what the originator actually intended to mean. Why, then, are the courts so special as to be exempt from this? Quite the opposite should be true. A misunderstanding as to intended meaning by an individual can have substantial ramifications for that individual and perhaps the people he's interacting with, but the ramifications are generally somewhat limited. A misunderstanding on the part of the court, on the other hand, can have nationwide effects, and even go so far as to undermine the very foundation of the law. And when the court intentionally refuses to pursue the intended meaning, then it is engaging in what amounts to subversion of the entire system of law, for the system of law is founded upon the understanding of it.


If you say A, and then I say you meant B when you said A, and then you come back and clarify by saying that you really meant X, and I then continue to insist that you clearly must have meant B (even though you've already explained your intended meaning), do you truly believe that what I am doing is legitimate? No, clearly it cannot be. And neither can it be legitimate for the courts.

Let me give you an example. There is a California statute that, when passed in the Assembly, used the phrase, "person over the age of 21." The Senate, in its infinite wisdom, changed that phrase to (an adult." So tell me, are you an adult when you turn 21--or when you turn 18? And you know what, it makes a real difference in real world cases. Yet there isn't one word in the legislative history that explains why the change was made, or what the amender's "intent" was.

When it is impossible to ascertain the intended meaning of a statute or law (or of the Constitution), then the court has to use more indirect, but no less generally accepted, means of ascertaining the meaning, such as going back to examine the understood meaning of words and phrases as they were used at the time the statute, law, etc., was written.

But intent must come first. To insist otherwise is, as I said, to destroy the very purpose of written communication in the first place, and to utterly eliminate any justification (save, perhaps, for self-serving ones) for referencing the written text at all. As such, that it may be impossible to ascertain the intended meaning of a statute, law, etc. does not relieve the court of the duty to attempt it. Indeed, it cannot even determine that such a task is impossible until it attempts it in the first place.


What do you think a communicative misunderstanding is? It's a situation in which the meaning understood by the recipient differs from the meaning intended by the originator. What you are arguing for here is the notion that decisions based on misunderstandings are legitimate and correct. To be blunt, that is an absurd notion, but that is precisely what the courts intentionally do: legitimize their own misunderstandings, and insist on their correctness in doing so.


Using your very own example, if the court were truly interested in the intended meaning of the law (and in particular, the term "adult" as used in the context of the statute in question), the court would (where possible) subpoena the original authors of it and ask them what they intended to mean by the term "adult". Did they do that? No. That's because the court isn't interested in the original intended meaning of the statute. But if it's not interested in that, then the only other thing it can be interested in is its own preferred meaning. And that means the court is more interested in inserting its own preferences into law than it is in the original reason for the law, when it is the original reason for the law that is the sole justification for its existence. A perfect example of this is Slaughterhouse. There, the Supreme Court could have directly queried the original authors of the 14th Amendment about their intended meaning. It did no such thing, and the end result has been massive infringement upon fundamental rights ever since.


And I note you didn't answer my question. If the court says a statute means one thing (and bases a decision upon that) and the original author says it means something different, which of those two is right, and which one has changed the meaning of the statute? There is only one logical right answer to that question, and it's not the one you've thus far implicitly been arguing in favor of.

[rplaw]

I thought they had 90 days from the hearing to issue their decision. Or am I mis-remembering?

BTW. meant to ask earlier; was that you in the video for Young at orals?

[CCWFacts]

Originally Posted by rplaw

I thought they had 90 days from the hearing to issue their decision. Or am I mis-remembering?

I think there's no set time limit but it's generally a few months to a year or more.

[press1280]

Originally Posted by wolfwood

Now that Flanegan has left the District Court I am curious to see if they stay the case pending Young or the lawyers decide for full briefing.

Young should be decided sometime this year.

They should stay the case, although Flanagan is still trying for a CCW even in light of Peruta, so who knows.

[rplaw]

Originally Posted by wolfwood

Yes that was me arguing. I am currently on a diet. I look at my pictures from when I was in the Marines and it makes me sad. The law has expanded the waistline a little.

The Ninth Circuit has no timeline as to when to issue a opinion. The 90 days is for the CA Supreme Court.

I can relate, I'm carrying an extra 40 lbs. I thought I might be mis-remembering the time frame for issuing an opinion. Hopefully it's soon rather than later, but knowing the 9th, it'll be later than later.

[rplaw]

Originally Posted by wolfwood

The Ninth Circuit has no timeline as to when to issue a opinion. The 90 days is for the CA Supreme Court.

It's been 5 months since orals. I'd hope at this point you're considering a request to SCOTUS to issue a mandate for the 9th to release it's opinion. This is a Constitutional Right at issue in more than 1 State, what with Nichols also being stayed pending Young, and a Right delayed is a Right denied. Which is the whole point of both suits.

I don't know as I'd file such a request yet but I'd have it drafted and pending for filing after the summer break.

Might be an interesting idea for Nichols to file it instead of Young. Nichols has been pending longer overall I believe and his case has been stayed twice now. The question in his particular case is at what point does the repetitive delay become an abrogation or denial of his right to justice as well as a continued denial of his Constitutional Rights.