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

[press1280]

Originally Posted by wireless

They won’t issue permits until the possible en banc vote is voted down. I don’t know if this is technically legal but it seems to be widely accepted.

I think the mandate won't actually issue until en banc is determined?

[Paladin]

Originally Posted by kuug

It's very important to note that the majority does not seem to say specifically about a right to open carry, but that generally "the Second Amendment does
protect a right to carry a firearm in public for self-defense."

Hopefully the Kavanaugh nomination scares the 9th circuit from going en banc. I want this to be in place soon so we can sue California and Sheriff Gore again.

Sheriff Gore loosened his GC standard last fall, thanks to the work of San Diego Co Gun Owners and having a strong challenger in the June sheriff's race (Myers).

HUNDREDS of SD folk, incl people denied in the past by Gore, have now gotten CA CCWs from Gore. After the June 6th election, Gore has continued to readily issue CCWs.

Bottom line: I hope our side uses this to sue sheriffs that hate carry the most: SF, Ala, and/or LA counties....

[press1280]

Originally Posted by Paladin

and IL didn't appeal Moore....

But for now,

Two glasses of wine with dinner tonight!

Congrats & thanks, wolfwood!

They'll appeal en banc for sure. SCOTUS on the other hand....

[njineermike]

Originally Posted by press1280

It only nullifies OC bans, no effect on CCW other than the county sheriffs may change their issuance policies to steer people away from OC.

Which would also be good

[Paladin]

Originally Posted by press1280

They'll appeal en banc for sure. SCOTUS on the other hand....

I disagree. Why should they appeal en banc???

If they win en banc, great, that gives us the right to appeal to a Trump packed SCOTUS and a win there applies to all federal circuits!

If they lose en banc, great, they've just established this case law against themselves even more firmly since it will be an en banc panel decision. Maybe, if they're totally insane, they'll then appeal their en banc loss to a Trump packed SCOTUS....

Like I said, they won't go for en banc.

ETA: outta here for today.

[TruOil]

There are two main directions this case can go right now. Hawai'i can take its lumps and allow the case to go back to the trial court for, ultimately, an order invalidating their categorical ban of open carry. At that point, they can start issuing permits the same as they would for any security company personnel, or they can pass a new law that contains the same "good cause" requirement that is included in their ccw law. Which of course would mean virtual no issue. That would likely mean another lawsuit, with the state arguing, even under Heller, that "reasonable restrictions" can be imposed on the carriage of firearms in public. That would be appealed....and by now five or six years have passesd with no open carry, and perhaps even odds that they will prevail in both the trial court and the court of appeal.

The other course is to seek en banc, and they have a better than even chance of winning, given what the en banc panel did to Peruta, but the risk is that the Supreme Court will have Kavanaugh by the time the cert petition reaches it. And that would open a whole new can of worms if cert were granted.

Will Hawai'i take the safe route or the risky route? Or will the Ninth grant en banc on its own motion, sweeping up Nichols as it goes?

[tenemae]

Originally Posted by press1280

It only nullifies OC bans, no effect on CCW other than the county sheriffs may change their issuance policies to steer people away from OC.

Which, given the tender dispositions of the general public these days, would be an extremely wise idea. People would be freaking out left and right seeing all the guns being OCd

Can someone give informed opinion on this little bit (PM is ok if you don't want it publicly discussed). Is it saying what I think it's saying?

In any event, even if all arms carriers without good cause had to post sureties (they did not), the laws would not add much to our analysis. Heller saw little weight in historical prohibitions that promised only “a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail).” 554 U.S. at 633. Certainly, an obligation to post a surety fits that mold. Like a small fine, sureties are “‘akin to modern penalties for minor public-safety infractions like speeding or jaywalking,’ which makes them (in the Court’s view) poor evidence of limits on the [Second] Amendment’s scope.” Wrenn, 864 F.3d at 661 (quoting Heller, 554 U.S. at 633–34). In fact, sureties seem to us even less noteworthy than small fines, since a disruptive carrier—once he posted a surety—“could go on carrying without criminal penalty.” Id. And if he refrained from breaching the peace, of course, his money posted as a surety would be returned in a matter of months.

[Rodell]

What's the expected timeline for the en banc vote?

[Elgatodeacero]

My 10 cent prediction is they will seek en banc review, but the vote will go against en banc.

Then its back to district court for more shenanigans.

Govt defendants have had too much success at 9th Cir en banc panels on 2nd Am cases to not try this.

[Syntax Error]

Looks like Wolfwood (Alan Beck) talked to Steve Gutowski (pro-2A reporter) on the Washington Free Beacon about the results of the case if anyone wants to check that article out: https://freebeacon.com/issues/federa...en-carry-guns/

George Young, a native Hawaiian and Vietnam veteran, was denied a gun-carry permit in 2011 and decided to file a lawsuit against the state. Young had to act as his own lawyer because he couldn't find a lawyer in the state who was willing to work on his behalf. After his first two attempts at legal action failed, Alan Beck, a California-based lawyer with ties to Hawaii, offered to help him with his suit on a pro bono basis.

"Today the Ninth Circuit secured the Second Amendment Right to carry firearms outside the home," Beck told the Washington Free Beacon. "We are very pleased by the Ninth Circuit's opinion and are committed to litigating this case further."

Beck credited the retired infantryman's determination for Tuesday's outcome and described Young as being "overjoyed" and "ecstatic" at the ruling.

Thank you to the plaintiff and Mr. Beck for taking the case up pro bono for the cause of the Second Amendment.

[Drivedabizness]

Originally Posted by Elgatodeacero

“The war is not over though.”

True, but the Allies have successfully taken Normandy and the enemy is in retreat.

Not quite.

All we have for the moment is a decision that says the 2A applies outside the home and that an infringement that is a de facto ban (HI's law) is unconstitutional.

If an en banc panel (don't rule it out and it will add 18 months if Peruta is any guide to the process) or the District Court mucks it up (which would require more litigation) - either way it will be some time before this decision will be vindicated in any tangible way.

Unless of course, HI is persuaded to take one for the team and settles with Young to allow some sort of licensed OC...that would leave the rest of us to have to challenge our own State's laws. CA's Legislature will NEVER take the hint and fix this on their own.

[wireless]

After the Wrenn en banc vote was denied, I wouldn’t be surprised if that happened again. They could really screw things up for circuits 1-4. I suspect The powers that be will push for this to die. I’m not sure if the judiciary will go for it though. The 9th is so insane I could see them trying the same stall tactics. Might not be the worse idea, they’d be banking on Ginsurb dying and trump losing 2020. That’s a big if and I don’t know if they want to be the ones who mess it up for all the other anti-2A states.

[Drivedabizness]

It actually said he won without scrutiny

[Elgatodeacero]

The decision is a pretty big win, with sound reasoning and legal authority behind it.

This is not some slapdash appellate decision.

This is the beginning of the end, though we are a few years away from every citizen having an actual consitutional right they can freely exercise.

[TruOil]

To answer your question, the decision is not yet final and may be appealed further, so don't hold your breath. Second, the case technically applies only to Hawai'i, and can only be argued (that is, if it stands) to apply to California. The Nichols case will decide that for this state. Third, decisions of the Ninth are not binding on any other federal court of appeals, at least three of which have concluded that the Second does not extend outside the home. Last but not least, the majority of states are open carry, although some do require a license to do so (like Texas).

To put it briefly, this decision, as important as it is to us, doesn't have a lot of applicability outside of Hawai'i and perhaps California.

[Paladin]

"States like Hawaii and California will have to allow far more guns on the streets than they do today," said Adam Winkler, a law professor at the University of California, Los Angeles. "States would be able to ban concealed carry but only if they allow people to carry their guns openly displayed."

Winkler, however, expects the decision to be appealed to a full panel of the San Francisco-based court.

More at:
https://www.sfgate.com/news/us/artic...n-13101024.php

[speedrrracer]

Originally Posted by Elgatodeacero

The decision is a pretty big win, with sound reasoning and legal authority behind it.

This is not some slapdash appellate decision.

This is the beginning of the end, though we are a few years away from every citizen having an actual consitutional right they can freely exercise.

I don't see how.

All that MUST happen is that a HI court must re-do their thinking, with this decision in mind. They can still arrive at the same opinion -- no carry. But even if they say, "OK, Young can carry", the HI AG can appeal that decision to the 9th, where we know it will die.

O'Scannlain and Ikuta are behind enemy lines. Great decision, great work by wolfwood, but the 9th is just waiting to swat this down. Peruta proved this beyond any doubt.

And if I'm the antis, I'm not afraid of SCOTUS. I'm going to make SCOTUS prove it. I'm going to test Roberts' commitment to the 2A, and fear of controversy. And I'll probably win. 90% chance SCOTUS doesn't grant cert, most cases never get cert. The deny cert and I win -- you have to take those odds.

And even if they take the case, we don't know if Roberts is willing to go so far as to give carry to all Americans. So my odds improve again.

The antis would be idiots not to push this all the way to SCOTUS. They have every expectation of winning -- SCOTUS hasn't touched a firearms case in forever, and there's nothing indicating they're ready to grant carry. eta: Now if, in the years before the 9th destroys this (en banc if necessary), SCOTUS does show some pro-2A backbone, then HI does reconsider.

[CCWFacts]

Originally Posted by AdamVIP

The logic for DC was Los Angeles and NYC. This new ruling may take LA out of the equation but there's still a lot of political clout in NYC that want to keep their ban in place.

Exactly. The Democratic leadership must be very opposed to appealing this. NYC is the big fear.

Originally Posted by wireless

If I was the left I’d be very concerned. There is a circuit split on carry, a new conservative judge most likely, and this case is an open carry case. No way gettingn around concealed carry BS argument.

Yes, a solid circuit split, and very soon a firm (not quite solid) conservative court.

Originally Posted by Paladin

I disagree. Why should they appeal en banc???
...
Like I said, they won't go for en banc.

Exactly. There isn't much sense in it.

There could be a sua sponte call for en banc, as judges won't have exactly the same political considerations as Hawaii officials have, but then would the full circuit vote for the en banc? I don't think so because again, they are taking a huge gamble which they would likely lose, and that means losing NYC.

[wireless]

Originally Posted by Rodell

What's the expected timeline for the en banc vote?

I believe sua sponte is 90 days in the 9th circuit and 14 days for The State to appeal.

[adamkdoiron]

So if the ruling stands would it then apply to the 9th circuit as a whole or only to the county of hawaii?

[003]

TRuOIL:

I do not mean to be argumentative, but it is my understanding that decisions by a court of appeals apply to the entire jurisdiction of that specific court. A decision by the 9th applies to all states within their jurisdiction, which of course includes California. If this decision is upheld, it will/does aptly to California. (nine western States and two territories)

[Syntax Error]

Dave Kopel's (pro-2A law professor) analysis of Young v. Hawaii case here: https://reason.com/volokh/2018/07/24...ht-to-licensed

[tenemae]

Originally Posted by speedrrracer

All that MUST happen is that a HI court must re-do their thinking, with this decision in mind. They can still arrive at the same opinion -- no carry.

How do you figure that?

Young has indeed stated a claim that section 134-9’s limitations on the issuance of open carry licenses violate the Second Amendment

HI 134-9:

(a) In an exceptional case, when an applicant shows reason to fear injury to the applicant's person or property, the chief of police of the appropriate county may grant a license

HI must issue for "self defense". How can you arrive at no carry?

[wireless]

Originally Posted by CCWFacts

Exactly. The Democratic leadership must be very opposed to appealing this. NYC is the big fear.



There could be a sua sponte call for en banc, as judges won't have exactly the same political considerations as Hawaii officials have, but then would the full circuit vote for the en banc? I don't think so because again, they are taking a huge gamble which they would likely lose, and that means losing NYC.

I think D.C. turned down the en banc vote, because they wanted to be strategic, but most importantly D.C. is the SCOTUS stepping stone. The 9th on the other hand is filled with a bunch of far left judges who are going to take their **** to the grave.

My prediction: Hawaii decides not to appeal, en banc is called sua sponte, the vote narrowly passes. We lose at en banc. SCOTUS taking the case...I don't know. I want to say they will given the composition of the court and the clear circuit split, but they've disappointed me so many times that it's hard to picture them pulling through finally.


The left has two big battles. Fight off National Reciprocity/SCOTUS ruling on carry, and assault weapon bans/SCOTUS taking AWB case. I think when they lose one of these two it will politically hit them pretty hard. I think guns will go the way of Gay Marriage which as has gained national 7% approval since the 2015 ruling (currently at 67%). The core gun control advocates will always be there, but voters the voters in the middle and center-left will be over it.

[command_liner]

Originally Posted by Drivedabizness

It actually said he won without scrutiny

As has been discussed here many times, "scrutiny" is a wholly non-constitutional, a-historic abomination with no basis in anything. Why
would an honest reading of the 2nd rely on, or even mention, this perversion of law?

[speedrrracer]

Originally Posted by tenemae

How do you figure that?

Because it says so:

"REMANDED for further proceedings consistent with this opinion"

Thats it. So the case must go back to HI court, and they must have further proceedings (meaning, a do-over) consistent with this opinion.

How can you arrive at no carry?

Because the HI court will probably say, "We got smacked, I guess Young can carry", then the HI AG will appeal, that appeal goes to the 9th, and the 9th will say, "NO CARRY".
eta: and by "no carry" I mean they'll say carry is just fine, but so is a system of virtual no-issue, where only elevated good cause / special circumstances / etc can get temporary carry permits which expire shortly after they are printed.

[tenemae]

Originally Posted by speedrrracer

Thats it. So the case must go back to HI court, and they must have further proceedings (meaning, a do-over) consistent with this opinion.

Do you mean the opinion which states:

Originally Posted by speedrrracer

eta: and by "no carry" I mean they'll say carry is just fine, but so is a system of virtual no-issue, where only elevated good cause / special circumstances / etc can get temporary carry permits which expire shortly after they are printed.

is explicitly unconstitutional? So they're going to adopt a virtual no-issue policy consistent with a ruling stating they cannot adopt a virtual no-issue?

[wireless]

Originally Posted by 003

TRuOIL:

I do not mean to be argumentative, but it is my understanding that decisions by a court of appeals apply to the entire jurisdiction of that specific court. A decision by the 9th applies to all states within their jurisdiction, which of course includes California. If this decision is upheld, it will/does aptly to California. (nine western States and two territories)

If the decision is upheld then it applies to the entire 9th circuit. I believe someone will have to sue CA, because the opinion only solidifies precedent in the 9th if it is upheld (California included). It doesn't actually strike down CA's unconstitutional open carry scheme.

Hawaii and California are the only "may issue" states in the 9th. The rest are constitutional carry or shall-issue. If this case doesn't make it SCOTUS then it will really only affect those two states, assuming it's upheld in the first place.

[John Browning]

This is awesome.

[Paladin]

Originally Posted by glockmen17

Ware?

http://www.calguns.net/calgunforum/s...1424391&page=4

Scroll down to today's posts.

[tenemae]

Originally Posted by speedrrracer

eta: and by "no carry" I mean they'll say carry is just fine, but so is a system of virtual no-issue, where only elevated good cause / special circumstances / etc can get temporary carry permits which expire shortly after they are printed.

Yeah... I might be wrong on this. You may be correct:

Young does not address the additional limitation in section 134-9 providing that an open carry license may only be granted “[w]here the urgency or the need has been sufficiently indicated.” Nor could we evaluate such a requirement at the motion to dismiss stage, absent evidence showing the stringency of the requirement. Thus, we do not decide whether such requirement violates the Second Amendment.

[speedrrracer]

Originally Posted by tenemae

Yeah... I might be wrong on this. You may be correct:

Quote:
Young does not address the additional limitation in section 134-9 providing that an open carry license may only be granted “[w]here the urgency or the need has been sufficiently indicated.” Nor could we evaluate such a requirement at the motion to dismiss stage, absent evidence showing the stringency of the requirement. Thus, we do not decide whether such requirement violates the Second Amendment.

bingo -- we're on the same page now

and I was certainly combining steps. The decision will probably say, "Young must be allowed to apply for OC; bad state of Hawaii law!" and that'll be the end of the decision.
Then the AG will appeal and the 9th will kill it
OR
the HI legislature will tell the AG to let it slide, and write a virtual no-issue set of regs (like those here in, say SF or LA or a stricter set of the ones in SD). Then Young will fail to meet those regs (or maybe he will get his permit just to shut him up, who knows, a couple of people OCing is not the end of the world, as long as 99.999999% of those who wish to OC are denied, the state will be happy), and we'll have gained nothing in reality.

As the Volokh article above makes clear, the next battle is over the no-issue regs "Instead, Hawaii County could deny the permit on the grounds that Mr. Young has not demonstrated sufficient "need." The denial would probably start a new case, on the permissible stringency of Hawaii's definition of "need.""

And you know how the 9th will rule on that. So again, this decision is no victory for the 2A, in spite of wolfwood's excellent work and O'Scannlain's epic opinion. Not saying a victory can't come someday, but it didn't come in this decision.

[tenemae]

Yeah, we're on the same page now.

Originally Posted by speedrrracer

OR
the HI legislature will tell the AG to let it slide, and write a virtual no-issue set of regs (like those here in, say SF or LA or a stricter set of the ones in SD). Then Young will fail to meet those regs [..] and we'll have gained nothing in reality.

This is where I'm placing my money (emphasis mine)

[CSTactical]

Wow...

[Offwidth]

Originally Posted by speedrrracer

O'Scannlain's epic opinion

Worst case the opinion is in the books, will help to frame subsequent opinions, and increases likelihood that SCOTUS will take on this.

[John Browning]

Originally Posted by speedrrracer

bingo -- we're on the same page now

and I was certainly combining steps. The decision will probably say, "Young must be allowed to apply for OC; bad state of Hawaii law!" and that'll be the end of the decision.
Then the AG will appeal and the 9th will kill it
OR
the HI legislature will tell the AG to let it slide, and write a virtual no-issue set of regs (like those here in, say SF or LA or a stricter set of the ones in SD). Then Young will fail to meet those regs (or maybe he will get his permit just to shut him up, who knows, a couple of people OCing is not the end of the world, as long as 99.999999% of those who wish to OC are denied, the state will be happy), and we'll have gained nothing in reality.

As the Volokh article above makes clear, the next battle is over the no-issue regs "Instead, Hawaii County could deny the permit on the grounds that Mr. Young has not demonstrated sufficient "need." The denial would probably start a new case, on the permissible stringency of Hawaii's definition of "need.""

And you know how the 9th will rule on that. So again, this decision is no victory for the 2A, in spite of wolfwood's excellent work and O'Scannlain's epic opinion. Not saying a victory can't come someday, but it didn't come in this decision.

As long as these cases keep churning, it's bad for the gun control folks. If they win, that means an appeal to SCOTUS. That means a likely loss that is precedent setting and yet another tool for the forces of freedom to use to further bludgeon the anti-Constitutional crowd with. I think they might start doing the calculus that going to a CCW that is shall issue is better than loaded open carry. Most people are idiots and won't notice if CCW is shall issue. They will definitely notice when I'm carrying my Glock 20 in a chest rig down the organic isle at Whole Foods. The longer they push things toward SCOTUS, the better chance we have to win. They have to win every case, we just have to win one at SCOTUS.

If Kavanaugh gets confirmed (I am sure he will) and one of the liberal justices is replaced, gun control at the state level is going to be effectively killed. While we shouldn't stop the fight, it's ok to take a look around at how much you're winning once in awhile. Shall-issue CCW, national reciprocity, and preemption of state level gun control (mag bans and assault weapons bans) is in sight. Keep fighting, but know we're closer to that goal than we've ever been. Some of you are acting like this is a loss.

[ironpegasus]

Originally Posted by Offwidth

Worst case the opinion is in the books, will help to frame subsequent opinions, and increases likelihood that SCOTUS will take on this.

Except for last time they de-published the 3-judge Peruta opinion so worst case is really whatever the en banc pulls out of its orifice(s).

[Marcus herrera]

I hope ccw would be easier. I really don't want to be denied entry to the mall or movie theaters etc.. due to open carry.

[Offwidth]

Originally Posted by ironpegasus

Except for last time they de-published the 3-judge Peruta opinion so worst case is really whatever the en banc pulls out of its orifice(s).

I can still read and refer to it, so can any judge writing an opinion. Just like any other published dissent it affects future judgments, even when it is not a binding decision.

I do not see how you can spin this development as anything but good news.

[tenemae]

Originally Posted by Offwidth

I do not see how you can spin this development as anything but good news.

Well... in this case...