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

[press1280]

Again, read how the Heller case . . .

E N D E D


YOU put forth that proposition that the AG in his en banc request was possibly taking the position that authorities simply didn't understand or implement policy correctly.

IF YOUR INTERPRETATION IS TRUE . . .

That means en banc can be approved simply to allow the authorities to issue to Young.

If Young agrees - case is moot . . . there's nothing further to declare, discuss, or even any action to take.


Just like in Heller, where Scalia in making his judgment comes to a halt - because DC decided to issue to Heller at the last minute, and Heller agreed.


Scalia closing words in judgement would have been much more extensive had that not happened in Heller v. DC.


YOU brought up a possible interpretation - I simply extended it and analyzed it for you.

YOUR interpretation angle you presented is certainly possible...

YOU may turn out to be right in how this moves forward and ends...

Don't react to me, take a deep breath, think through the implication of what you pointed out.


It is actually right in line with the two possibilities I pointed out should Wolfwood enlist the help of members of the "dream team" whose history is trying to to get a win for CCW - even at the expense of OC.

=8-|

Pretty ballsy if they do so and only intend to issue to Young (and continue to implement a no-issue scheme). He's been denied under both the citizen CCW and the security-guard-issue-only OC permit.
IIRC Young didn't have major death threats over his head so it's not like the situation in Drake where the original plaintiff had been kidnapped and taken halfway across the country and a permit was eventually issued to him to try to show his situation was different.

[TruOil]

Again...go read Heller. Note how it ended.

=8-/

How many appeals courts have concluded that "bear" is not within the core right guaranteed by the Second Amendment? And how many of those cases cited Heller for that proposition? And after concluding that it is not a core right, how many applied their diluted excuse for "intermediate scrutiny"? Since all of these courts read Heller, it is safe to assume that they concluded that the bear issue had not been foreclosed. Read the AG's petition in Flanagan which all but argues that there is no right to openly bear arms in any incorporated ci8ty or town, notwithstanding the fact that you are far more likely to be assaulted in one of those crowded metropolitan areas than in the open country or out in the forest (because people are few and far between, and the only need for self defense in most cases is from creatures on four legs). The right as Becerra sees it is limited to private property and while hunting, camping and hiking. I wonder where he got that idea? Not from the Second Amendment!

[TruOil]

[QUOTE=mrrabbit;22135976]

Then what you are saying then is:

1. Court will go en banc.
2. AG will have chief issue permit for either.
3. Case is then mooted.

in other words, Heller.

=8-)

More like post-Heller. The direct holding in the case was to invalidate a single statue or group of DC statutes regulating possession of firearms in the home. Heller did not consider licensing or permit schemes, nor did it consider carry outside the home. Heller I did not ask for "bear"; that came later in other cases. Read into Heller all you want, but courts do not issue advisory opinions on matters not addressed by the issues brought by the parties. Which is why there were later cases--cases as you well know that came to contradictory conclusions as to the scope of the right and, critically, the standard of review, questions that Scalia's majority opinion left wide open.

[TruOil]

[QUOTE=press1280;22135667]

So do you think the AG has essentially conceded that the police chiefs have been assuming OC permits are only for security guards?
If that's the case, then shouldn't en banc be denied since the law is (somewhat) changed, and this should go back to the district court with the 3 judge panel's opinion as their guide under the new AG opinion?

The law, i.e. the statue, hasn't changed at all. I am guessing there are no prior cases interpreting the language. So the AG opinion is all the guidance that is "needed." According to the AG, the law itself isn't unconstitutional, just that it has been "inadvertently" (and of course reasonably and excusably) misinterpreted. His opinion (which is all that it is) is all the guidance that is needed, Nonetheless, the Ninth en banc will gleefully adopt his opinion, because they know full well that it will take any number of years to show that the sheriffs/police chiefs have not changed their behavior and are unconstitutionally refusing to consider/refusing to issue carry applications from persons not in the security industry. Delay is good!

[press1280]

[QUOTE=TruOil;22135538]

I am aware of that--but I think that the AG's opinion is intended to put that at least theoretically to rest, allowing them to (try to) argue that the chiefs were merely "misinterpreting" the statutes. It is very much a Hail Mary, in the sense that the court is supposed to review cases as they were developed in the trial courts, not on new matters not previously considered, and particularly not arguments not presented in the trial court. As it did in Peruta, the en banc panel will conveniently ignore these "rules."

So do you think the AG has essentially conceded that the police chiefs have been assuming OC permits are only for security guards?
If that's the case, then shouldn't en banc be denied since the law is (somewhat) changed, and this should go back to the district court with the 3 judge panel's opinion as their guide under the new AG opinion?

[TruOil]

[QUOTE=press1280;22135521]

Yeah, well, I have no idea what you just said, anymore than I understood why Wolfwood should argue that open carry can be banned in favor of open carry. Such an argument is clearly foreclosed by the Peruta decision. I think I just explained how the Ninth will attempt to escape the corner it painted itself into with Peruta--licensed open carry subject to a "may issue" regime, such as exists in Hawaii right now, as long as it is clear that licensing applications are not limited to security guards (which I have to assume is how the chiefs/sheriffs have been interpreting the statute up until the AG's new position paper).[/QUOTE]

I agree with this. But then they'd be teeing up an OC licensing scheme for SCOTUS in which only security guards have received permits. Even though the 3 judge panel's opinion is wiped out within the 9th, it's still going to be part of the record for the SCOTUS appeal.

I am aware of that--but I think that the AG's opinion is intended to put that at least theoretically to rest, allowing them to (try to) argue that the chiefs were merely "misinterpreting" the statutes. It is very much a Hail Mary, in the sense that the court is supposed to review cases as they were developed in the trial courts, not on new matters not previously considered, and particularly not arguments not presented in the trial court. As it did in Peruta, the en banc panel will conveniently ignore these "rules."

[press1280]

[QUOTE=TruOil;22135119]Yeah, well, I have no idea what you just said, anymore than I understood why Wolfwood should argue that open carry can be banned in favor of open carry. Such an argument is clearly foreclosed by the Peruta decision. I think I just explained how the Ninth will attempt to escape the corner it painted itself into with Peruta--licensed open carry subject to a "may issue" regime, such as exists in Hawaii right now, as long as it is clear that licensing applications are not limited to security guards (which I have to assume is how the chiefs/sheriffs have been interpreting the statute up until the AG's new position paper).[/QUOTE]

I agree with this. But then they'd be teeing up an OC licensing scheme for SCOTUS in which only security guards have received permits. Even though the 3 judge panel's opinion is wiped out within the 9th, it's still going to be part of the record for the SCOTUS appeal.

[press1280]

If the states en banc gets denied, can the 9th come over top of that and request it themselves?

If en banc is denied then it is because more judges voted NOT to hear it, they won't reverse themselves.

The Peruta situation was different. The defendants opted not to file en banc and one judge (probably Chief Thomas) went sua sponte and called for the vote to happen anyway.

[press1280]

Why on earth would Wolfwood argue that open carry can be banned in favor of concealed carry when the original panel said, per Peruta, that concealed carry is not a right in the Ninth Circuit? Peruta applies to Hawaii as well. Hence, if there is a right to bear outside the home, then it must be open carry. The real argument is whether the State can permissibly regulate open carry through a licensing system, and whether that system is unconstitutional if it results in no one other than security guards from getting such permits. Or to put it another way, can the State ban the vast majority of its residents from exercising a right to bear arms without violating the Second Amendment? (We know what the answer will be, we just have to wait to see how they finesse it.)

Preserve the argument for SCOTUS?

[Offwidth]

should argue that open carry can be banned in favor of open carry.

Such a ban I can live with.

[TruOil]

The fact that you said the above...and have been in this thread for quite some time and that that NRA/CRPA/SAF/ETC lawyers with a history of arguing as such are probably going to come on board . . . requires me to conclude with the following:

PAY ATTENTION!

That's what I say when people either:

1. Literally don't pay attention.
2. Ignore that which is already known in their arguments or statements.

If members of the so-called "legal dream team" for gun rights do hop aboard, that is exactly the twist and risk they might take - trying to pull a pure CCW win out of a temporary OC win.

And that is what will allow Hawaii to escape the corner they are in - CA9 pulling a Heller or a Peruta in which SCOTUS declines cert.


And of course, we'd be treated to probably another great quote from Justice Thomas - like the one already in my sig.

=8-|

Yeah, well, I have no idea what you just said, anymore than I understood why Wolfwood should argue that open carry can be banned in favor of open carry. Such an argument is clearly foreclosed by the Peruta decision. I think I just explained how the Ninth will attempt to escape the corner it painted itself into with Peruta--licensed open carry subject to a "may issue" regime, such as exists in Hawaii right now, as long as it is clear that licensing applications are not limited to security guards (which I have to assume is how the chiefs/sheriffs have been interpreting the statute up until the AG's new position paper).

[ritter]

The problem of course that Scalia's statements about "carry" are technically dicta (since this was a pure "keep" case) and not binding on other courts--as some courts (whose names we need not intone) have (gleefully) concluded.

Now obviously I think that Scalia is correct, the right exists outside the home, and even the State of California admitted as much during argument in Peruta. The problem is elevating that right to a strict scrutiny concern not subject to the sliding scale vagaries of "public security."

Sorry to come back to this, but just reread McDonald. If this is dicta, why does McDonald cite it as "held"? This is the SCOTUS citing SCOTUS, so it seems like they'd know what they held. Still trying to understand the nuances.

From the first page of McDonald v City of Chicago:

Two years ago, in District of Columbia v. Heller, 554 U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home.

reference is way back from post #680

[Offwidth]

"Open Carry can be banned in favor of concealed carry"

I really hope Alan have read the panel opinion that highlighted that this is NOT a winning argument.

Open Carry is a right and can not be banned. Concealed Carry can be banned. Just "Carry" is of now is undefined by Supreme Court and can not be asked for.

[surfgeorge]

If the states en banc gets denied, can the 9th come over top of that and request it themselves?

Yes. That's exactly what happened with Peruta. Panel denied en banc petition. Sua sponte call by a judge for a vote by the entire court. Court voted for en banc. En banc panel overturned Peruta. Rinse and repeat. Any questions?

[command_liner]

If the states en banc gets denied, can the 9th come over top of that and request it themselves?

I suspect so. The 9th seems to be able to make up rules as it goes, and ignore the rules it does not like.