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

[Paladin]

The 90 days for cert starts upon the issuance of the mandate (which absolutely does not need to be 14 days from now).

When is the issuance of the mandate?

Tomorrow will be 1 week after we lost....

[Paladin]

We’ve made a LOT of progress regarding CCWs over the past dozen years. Just compare these two CA CCW GC maps. FWIW LA Co Sheriff Villanueva said he may liberalize GC further when “defund the police” cuts come on July 01. That’s just 13 weeks away.





/threadjack

[FISHNFRANK]

These judges...need to look up “To Bear” in the dictionary. It means of course “TO CARRY a weight”. It doesn’t mean “TO SIT IN THE BED-STAND”. The constitution is meaningless in all practical matters in the modern day

[pacrat]

I've been around for over 7 decades. When we lost OC in 1967. I was naive enuff to think it couldn't get worse. Then we got GCA shoved up our keysters. And lost all those wonderful hardware, grocery, and auto store ammo and gun vendors.

This incremental Ch!t slide into 2A nothingness has got to stop sometime soon.

I'm damn sure tired of waiting .

[aztecw]

I agree. "If you don’t have the patience to wait for it, perhaps you don’t deserve it." What are you talking about? It's already our right which we deserve, and it's been taken away form us. What are we waiting for the dems to change their minds, not going to happen.

[lastinline]

[Paladin]

Young only applies to open carry of handguns. So they haven't answered the question if you can open carry a long gun, but you can kind of expect what they will say. There is the Nichols case which deals with open carry of long guns.

If you’re implying that carrying long guns might satisfy the Right to Bear Arms I think Heller foreclosed that argument when it said (paraphrased) the essence of the 2A is self defense (not protecting your home or place of business, which are private areas, not public), and that the handgun is the Arm most often chosen for that self defense. The need for self defense while in public remains.

[phdo]

Young v. Hawaii (CA9); EN BANC LOSS 3-24-2021

[TrappedinCalifornia]

http://cdn.ca9.uscourts.gov/datastor...4/12-17808.pdf

YOUNG V. STATE OF HAWAII

They go way back to pre-colonial days and labor on for 120 pages, to tell us the 2A doesn't mean what we think it means

Is that you Judge Diarmuid O'Scannlain?

The 9th Circuit Says the Right To Bear Arms Does Not Extend Beyond Your Doorstep

"The Second Amendment to the United States Constitution guarantees 'the right of the people to keep and bear Arms,'" Judge Diarmuid O'Scannlain writes in a blistering dissent joined by Judges Consuelo Callahan, Sandra Ikuta, and Ryan Nelson. "Today, a majority of our court has decided that the Second Amendment does not mean what it says.

(emphasis added)

The link in the quote takes you to p. 128, the beginning of the dissent.

Justice Thomas ("bedroom to the kitchen") and Judge O'Scannlain aside, I'm curious how the anti-civil rights forces in the courts and even those on "our side" feel they can 'get away with' compartmentalizing the right as...

• concealed
• open
• concealed and open
• no concealed, if open
• no open, if concealed
• no concealed or open

This is especially true given that, in many cases, as we see in Hawaii and some counties in California, the right to "bear" (in any form) is, in essence, not allowed to the vast majority; i.e., simply because a few are allowed doesn't mean that the right for the majority has not been infringed. While those on the Left (and even some on "our side") prefer to emphasize this passage from Heller...

Miller

...the reality is that they all fail to acknowledge the context provided for that passage in pages of documentation in the decision. For those who claim that the majority only supported open carry as "the" right because the cases the majority cited involve denial of "concealed carry" need to actually READ the entirety of Heller (as opposed to relying on someone else's interpretation in support of a particular agenda) and place it within the context of 'explanation' Scalia very publicly provided after release of the decision. As an example...

Aymette v. StateAymetteThe court then adopted a sort of middle position, whereby citizens were permitted to carry arms openly, unconnected with any service in a formal militia, but were given the right to use them only for the military purpose of banding together to oppose tyranny. This odd reading of the right is, to be sure, not the one we adopt

In other words, 'at issue' vis a vis the cited case wasn't "concealed carry can be banned," it was whether "to keep and bear" was connected to militia service. The portion I placed emphasis on might also be noted in that the 'right being recognized' wasn't "open vs. concealed carry," but the limitation on use; i.e., if the topic of the paragraph was "militia service" and the majority opinion in Heller holds that the right to "keep and bear" is unconnected to militia service, then the limitation insofar as "use" cannot be solely that of "military purpose."

My broader point is that we should not be hung up on "concealed vs. open" as THE right and we shouldn't allow it to be compartmentalized in that manner for or in the courts. The issue is whether "to bear" applies outside the home. The manner of "bearing," in this day and age, is going to be 'limited' for a variety of practical reasons. However, the rationale behind such 'limitations' must be based on the context of the situation and, I firmly believe, that's what Scalia's language is indicating with... "concealed weapons prohibitions have been upheld under the Amendment or state analogues... laws forbidding the carrying of firearms in sensitive places such as schools and government buildings."

Remember, Scalia was trying to keep Kennedy on board by incorporating 'compromises' which Kennedy was insisting upon. To accomplish that without creating an 'absolute' precedent, he carefully 'couched' (or caveated) the language. The idea was to set the precedent of an "individual right." Scalia was very public about limitations, whatever those might turn out to be, as "to be determined" in future cases. As a result, I would be very dubious over (and even more cautious asserting) claims that the majority opinion in Heller espoused, delimited, or portrayed anything "absolutely" beyond the opening line of what was held in Heller...

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

This seems to be precisely what Justice Thomas and Judge O'Scannlain are getting at; i.e., that the words "such as" in that line were NOT a 'limitation,' but denote an exemplar from a cornucopia of "lawful purposes" and, thus, by derivation, "lawful means" in pursuit of such "lawful purposes." Any other interpretation which presupposes or infers "strict limitations" placed on the right in the Heller decision is what Justice Thomas has referred to (with Scalia himself signing on) as a "crabbed reading of Heller"...

Instead of adhering to our reasoning in Heller, the Seventh Circuit limited Heller to its facts, and read HellerId., at 412. But Heller repudiates that approach. We explained in HellerId.

Such is consistent with one of my favorite quotes from SCOTUS and one I often repeat as an 'ideal' to be striven toward as an underlying premise by the Judiciary when addressing fundamental rights (especially specifically enumerated ones)...

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The reason? Because, the Preamble to the Bill of Rights stipulates...

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

Thus, as was stated earlier...

The certiorari will present a constitutional question to the court and it will be "whether the right to carry outside the home exists."

It would be very silly for our side to present the question of "whether the right to carry a concealed weapon exists" because it is too specific and doesn't address what we need to find out, i.e., the scope of the "and bear arms" part of the 2A and whether it exists or not. It would be similarly silly to try to resolve all the issues about which guns, where, when and how can be carried. Once the court says "the right to carry exists," then the follow up cases can clean up any obtuse court reasoning.

Justices know this, our attorneys know this. We need the court to say that "bear" means "carry for self defense in public places." That's all.

As for the rest, the next step is AWB, magazine capacity and handgun rosters, which are the most restrictive "what" questions. The details of carry can be polished relatively easily after "bear" is defined, especially if states attempt to restrict carry by playing the "when/where" game *after* the ruling.

Or... More accurately as regards the manner of "to bear" and any limitations on use... We need SCOTUS to declare that "bear" includes, but is not limited to, "carry for self defense in public places."

[lastinline]

[lastinline]

Case after case was referenced by SCOTUS in which a person was carrying concealed out and about in public - and their conviction or fine was UPHELD. There was even one in which the person was carrying concealed on their own property - and their conviction was upheld.

[lowimpactuser]

I don't know about "overplaying" its hand, the fight over carry of firearms in public had to come to a head at some point. Obviously a majority of the Ninth would like to see public carry in all urban areas banned or at least licensed by the government. Further, the composition of the Supreme Court isn't likely to change any time soon. Finally, any decision by the en banc panel would be binding on all judges in the Circuit absent being overruled by the Supreme Court. So it really was "it's now or never."

This also has to do with a speeding up and lack of compromise on one side of the culture war that has never met with a permanent loss vs. a side that always meets with a loss. This speeding up has no brakes, and they are not shrinking from any fight they can pick. This is also a major issue, and they are waxing triumphant.

If it was going to try to enact comprehensive gun control by judicial fiat, it had to rule in favor of the state or be barred from attempting to do so on another day, and it certainly was not going to be a court that would recognize a universal right to openly bear arms in public in every town and city in its jurisdiction.
Realistically, the Court had nothing to lose by deciding as it did. The loser was likely to seek Supreme Court review anyway. With the few number of cases taken up, there was certainly a decent possibility that the Supreme Court would not grant cert, and the decision would become permanently engraved in the law.
So to put it another way, the Ninth did not overplay its hand as much as it played the only hand it could, given its political bent and a moral belief that guns are bad.

And what realistic chance is it that the court which has showed its true colors in backing down from controversy in the electoral cases wants to court the same forces and decide on behalf of history's losers? I'm a lot less confident in ideology nowadays than I am in people's personal courage. And the courage of Thomas was on full display for his hearing, and his subsequent silence likely because that kind of swaggering strength isn't respected or popular in a profession of obsequious belly-crawling and lying with pretty words.

If the recent rulings by the recent appointees don't give you pause then you completely miss what politics means. And this is why you don't have a prayer of winning.

The supreme art of war is to subdue the enemy without fighting.

Sun Tzu

[darkwater]

This is apparently not a quotation by Thomas Jefferson.

https://www.monticello.org/site/rese...ious-quotation

If MLK said it, that's even better...

[abinsinia]

You forget they all rely on the same thing: "primarily in the home".

The holding itself is based on "in the home", since that was the complaint.

To that extent, expect all courts hostile to the right (and certain members of SCOTUS, including Roberts) to interpret "primarily" as "exclusively".

This is why you should never treat the "language" of law as English. It is not.

Here is a choice quote from the decent,

Heller described the“inherent right of self-defense” as “most acute” within the home, implying that the right does extend elsewhere, even if less “acutely.”

He had two similar to this from the Heller decision.


Here's the second one regarding the Heller opinion allowing regulation of arms in sensitive places,

But why bother clarifying the Second Amendment’s application in particularly sensitive public places if it does not apply, at all,in any public place?

[curtisfong]

You forget they all rely on the same thing: "primarily in the home".

The holding itself is based on "in the home", since that was the complaint.

To that extent, expect all courts hostile to the right (and certain members of SCOTUS, including Roberts) to interpret "primarily" as "exclusively".

This is why you should never treat the "language" of law as English. It is not.