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

[Offwidth]

With that reasoning, there's basically not much of a point of pursuing RKBA cases in the 9th Circuit at all.

Yes. Handing this cause over to a different org would have been just a fund raising opportunity for them. It would not make any difference at all.

[bigstick61]

Yep. Back in February of 2019.

Of course, that still doesn't leave counsel (and the plaintiff) in this case blameless. I privately offered to put Mr. Beck in touch with Paul Clement (who used to be one of my many partners at my prior firm) to discuss the implications of this case--and the obviously unsympathetic panel it would be heard by--after the 3-judge opinion in Duncan was issued. He ignored my communications, although when he had asked me questions previously, I of course responded.

Those implications are, of course, that this panel--which never had any realistically probable chance of being an objective one because of when it was drawn--is likely to issue a broad (and constitutionally unsupported) ruling on the standard of review for gun control laws in this circuit. They'll do so now because they know the next case before the en banc court (almost certainly Duncan unless) will have the opportunity to do otherwise if we get lucky and a sympathetic panel is drawn. (Yes, the next en banc panel can theoretically reverse the prior one, but that kind of nuclear act would never be taken, especially when there's another hyper-nuclear possibility, full court en banc, or "super en banc" also at play.)

This is why, taking the long, less self-interested (both client and attorney) view, in my opinion, the correct move here would have been to attempt to withdraw the appeal, and submit to the judgment of the district court. All we lose is a case we weren't going to win anyway, and the binding circuit precedent that it will be accompanied by, like an IED. Instead, we wait for the inevitable en banc call in Duncan, and hope for the best with the draw, which for the first time in many years would have given us a snowball's chance.

Which is all to say I agree with Chuck, but on slightly different grounds.

With that reasoning, there's basically not much of a point of pursuing RKBA cases in the 9th Circuit at all, whether argued by Paul Clement or someone else, with or without the backing of any large organizations.

I mean, pretty much any RKBA case in this circuit has a very high chance of a loss on appeal, either at the 3-judge panel, or en banc. Chances have improved a bit very recently, but still, the chances of a loss are higher. And SCOTUS has consistently turned down these cases when appealed there (that may soon change, however).

[meanspartan]

Huh? Daring the Supreme Court to take a look when? If Young had withdrawn his appeal, the District Court’s ruling on the State and County’s motions to dismiss would stand, and there would be nothing for the Supreme Court to review. As it is now, Mr. Young will lose and surely convince his counsel to “dare the new Supreme Court” to grant cert and review the case.

When the Supreme Court eventually does decide to announce a clear standard of review for gun control laws, it is my hope that it’s Mr. Clement arguing the case.

I meant that if the 9th circuit decides scrutiny on this case as a way to hurt Duncan.

I think Young is a particularly bad one for the 9th to lay down intermediate scrutiny definitively on, because it is clear to me that Hawaii's regime can't even meet that lessened scrutiny. When you issue literally zero permits, how can you argue you are tailoring at all? lol

[LVSox]

Perhaps.

But then they'd be daring the new Supreme Court to take a look, and decide what level of scrutiny applies nationally.

[meanspartan]

Yep. Back in February of 2019.

Of course, that still doesn't leave counsel (and the plaintiff) in this case blameless. I privately offered to put Mr. Beck in touch with Paul Clement (who used to be one of my many partners at my prior firm) to discuss the implications of this case--and the obviously unsympathetic panel it would be heard by--after the 3-judge opinion in Duncan was issued. He ignored my communications, although when he had asked me questions previously, I of course responded.

Those implications are, of course, that this panel--which never had any realistically probable chance of being an objective one because of when it was drawn--is likely to issue a broad (and constitutionally unsupported) ruling on the standard of review for gun control laws in this circuit. They'll do so now because they know the next case before the en banc court (almost certainly Duncan unless) will have the opportunity to do otherwise if we get lucky and a sympathetic panel is drawn. (Yes, the next en banc panel can theoretically reverse the prior one, but that kind of nuclear act would never be taken, especially when there's another hyper-nuclear possibility, full court en banc, or "super en banc" also at play.)

This is why, taking the long, less self-interested (both client and attorney) view, in my opinion, the correct move here would have been to attempt to withdraw the appeal, and submit to the judgment of the district court. All we lose is a case we weren't going to win anyway, and the binding circuit precedent that it will be accompanied by, like an IED. Instead, we wait for the inevitable en banc call in Duncan, and hope for the best with the draw, which for the first time in many years would have given us a snowball's chance.

Which is all to say I agree with Chuck, but on slightly different grounds.

Perhaps.

But then they'd be daring the new Supreme Court to take a look, and decide what level of scrutiny applies nationally.

[LVSox]

I'm honestly not sure that the best presentation in the world would have mattered. This case was most likely determined by the panel draw.

Yep. Back in February of 2019.

Of course, that still doesn't leave counsel (and the plaintiff) in this case blameless. I privately offered to put Mr. Beck in touch with Paul Clement (who used to be one of my many partners at my prior firm) to discuss the implications of this case--and the obviously unsympathetic panel it would be heard by--after the 3-judge opinion in Duncan was issued. He ignored my communications, although when he had asked me questions previously, I of course responded.

Those implications are, of course, that this panel--which never had any realistically probable chance of being an objective one because of when it was drawn--is likely to issue a broad (and constitutionally unsupported) ruling on the standard of review for gun control laws in this circuit. They'll do so now because they know the next case before the en banc court (almost certainly Duncan unless) will have the opportunity to do otherwise if we get lucky and a sympathetic panel is drawn. (Yes, the next en banc panel can theoretically reverse the prior one, but that kind of nuclear act would never be taken, especially when there's another hyper-nuclear possibility, full court en banc, or "super en banc" also at play.)

This is why, taking the long, less self-interested (both client and attorney) view, in my opinion, the correct move here would have been to attempt to withdraw the appeal, and submit to the judgment of the district court. All we lose is a case we weren't going to win anyway, and the binding circuit precedent that it will be accompanied by, like an IED. Instead, we wait for the inevitable en banc call in Duncan, and hope for the best with the draw, which for the first time in many years would have given us a snowball's chance.

Which is all to say I agree with Chuck, but on slightly different grounds.

[The Soup Nazi]

The “history” presented by Obama’s former solicitor general is intentionally conflated to present a picture which did not exist in old England, except when the dictatorial edicts of a paranoid king were enforced,(hardly constitutional behavior even under the joke of an English constitution). The intentional misreading of Heller, and the supposedly long standing gibberish do not change the plain meaning or intention of the founders. The Human right of self defense and defense against tyranny predates government itself. This Right is not dependent upon the Constitution because it predates the Constitution. This is an individual Right unconnected to militia service, and the Right itself declares that it shall not be infringed. Good cause and interest balancing are constructs of a government which is more interested in disarming it’s people than it is in keeping them safe.
Government has no duty and no responsibility to protect the individual from crime or violence, or anything else, and further will suffer no liability for failing to do so.
You are responsible for your own defense as clearly stated in the Second Amendment. The plain meaning of the Second is clear! Thank you to Alan Beck, George Young, Charles Nichols, and all of the others who put their time, money and personal liberty at risk.

Arguing that Hawaii's current permitting scheme should survive legal scrutiny because it can be linked to historical precedent extending from precolonial to Anglo-American periods is like saying that slavery should survive legal scrutiny because it was prevalent during the same time periods (and even further into history).

The prevalence of injustice over an extended period of time is not a justification for maintaining the status quo.

Katyal tries to lean heavily on this point and the fact that the literal textual interpretation of the statute doesn't result in a complete ban (a right that is dejure still accessible), but I still think Beck drives a perhaps less well spoken, yet more persuasive point that this is irrelevant if the application of the law results in a defacto ban. I suspect that if this goes our way, a key point in Beck's argument about having a single point of failure with complete issuing discretion (the chief in this case) could have implications on the current may issue regime here.

[mcbair]

The “history” presented by Obama’s former solicitor general is intentionally conflated to present a picture which did not exist in old England, except when the dictatorial edicts of a paranoid king were enforced,(hardly constitutional behavior even under the joke of an English constitution). The intentional misreading of Heller, and the supposedly long standing gibberish do not change the plain meaning or intention of the founders. The Human right of self defense and defense against tyranny predates government itself. This Right is not dependent upon the Constitution because it predates the Constitution. This is an individual Right unconnected to militia service, and the Right itself declares that it shall not be infringed. Good cause and interest balancing are constructs of a government which is more interested in disarming it’s people than it is in keeping them safe.
Government has no duty and no responsibility to protect the individual from crime or violence, or anything else, and further will suffer no liability for failing to do so.
You are responsible for your own defense as clearly stated in the Second Amendment. The plain meaning of the Second is clear! Thank you to Alan Beck, George Young, Charles Nichols, and all of the others who put their time, money and personal liberty at risk.

[press1280]

[bigstick61]

On ARFCOM, the attorney who was working on the case with wolfwood and was sitting off to his side during the arguments (off-camera) said this in response to some of the stuff I'd reported as posted here (addressing help being offered from other orgs):

At some point, “someone” was trying to contact our client directly. That “someone” referenced another “someone” he was calling on behalf of and of a “large organization” that would essentially take the case. I sent the “large organization” a cease and desist.

That isn’t assistance. That is a ****ed up takeover. It should also be noted that at the OUTSET of the appeal, you know, when it was just a random Hawaii resident getting dismissed, none of the orgs wanted it. It wasn’t until Alan kicked some *** and won then it became this hot case that the “large organization” wants to assist with.

And this:

Chuck is talking out of his ***. The nra was asked to take this case from the beginning. They declined. And as to the 4 th point, the client ultimately is responsible for choosing his counsel. He chose to stick with those who repped him from the beginning. I appreciate your comments but chuck is stating a very limited portion of the history and shame on him. Unless he doesn’t know the history, and in that case, shame on him as well. Oh, and chuck, you know we moot courted this “at least once”. If you don’t know that, I suggest getting with people, perhaps in your very firm, but at least at the “national” level to find out. And in the end, don’t forget, I’m your huckleberry and I mean it.

[johnireland]

This is not about winning or losing. This is about the life or death of the Constitution. If any of you still have faith in the courts, you fooling yourself. There is a large coordinated and well financed army of lawyers ready to attack the 2nd Amendment and take no prisoners. It is time to start digging foxholes.

[bigstick61]

A pitcher should pitch. He may have made great briefs and wording, but let the guys who know what they are doing speak. All that time and money wasted.

I'm honestly not sure that the best presentation in the world would have mattered. This case was most likely determined by the panel draw.

[pdsmith505]

Keep in mind that Mr. Beck's arguments, for better or worse, achieved a win in the original panel's decision.

Yeah, my gears are ground just as badly as any one's about the lack of public speaking skills, but he got the case to this point.

One would hope that the courts, as a bastion of law and reason, would place more value in the written briefs than a public performance.

I'd also like to point out that it was obvious that several judges were looking at pre-written questions off to the side. No need for extemporaneous thought there. These "telehearings" place council at a remarkable disadvantage to a hostile judiciary.

[CandG]

He is a good man with trouble with public speaking

Given that, he made an interesting career choice. Wish him best of luck on this case. Moving forward, I hope he takes help when offered.

[zippz]

I've been friends with Beck for the past couple years. He is a good man with trouble with public speaking, as is myself. He has a brilliant mind. He was the one that took on this case a long time ago when Mr Young asked for help and no one cared. He's spent a lot of his time and money on this case. He doesn't have a staff nor is he a wealthy attorney. There's been many underhanded things other organizations have done in this case. There's also been many who have helped out for this en banc hearing.
There are better resourced and experienced attorneys out there, but Beck earned my respect and is in it for the long haul.