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

[sfpcservice]

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

[surfgeorge]

The request is for a response to the state petition arguments for an en banc hearing, not to submit a brief on the merits of the case. Any claims or arguments about whether a state can ban some manner or other of bearing arms is not germane to the state's arguments for re-hearing en banc, and thus would be superfluous and useless.

It's pretty simple really. Here are the proper responses to the state's arguments:

I. No.

II. No.

III. No.

IV. So?

Of course Young counsel will have to flesh those out, at least a little bit, so judges O'Scannlain and Ikuta can ostensibly point to something written by plaintiff counsel when denying the en banc petition.

[TruOil]

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.)

[surfgeorge]

Panel asked Young counsel for response to state's petition for en banc. Have 21 days to respond.

I sincerely hope Young counsel poke a ton of serious holes in that load of crap and lies the from the 11 lawyers representing the state and county.

[press1280]

So, what does Hawai'i want CA9 to do?

p. 3

That sounds like a quick, clean GVR in light of the AG's letter.

ETA: If it gets GVR'ed, does it get sent back down to the same 3-judge panel?

p. 17:

That sounds like they want an en banc panel convened, an en banc appeal heard and a reversal.

Which is it??? Or are they using the shotgun approach?

The state is fine wasting a few more years on appeal back to the District Court. It's because they're caught in a corner of a total ban (security guards are the only ones who have been eligible) as it stands now. They are trying to give the impression that their scheme is like that of the ones that passed muster in CA2-4 and Peruta, even though, again, no permits were issued to ordinary citizens.

As it stands now, the case would be remanded to the District Court even if en banc is denied. Young was denied for a CCW before (which anyone could apply for), so even if plaintiffs agree with the AG letter, it seems like a moot point. He'll be denied under any standard because they won't issue to ordinary citizens, plain and simple.

If it comes back on appeal, it should go back to the same panel (at least other circuits normally do that).

[surfgeorge]

Will somebody with a clue be writing rebuttal to that baloney pile?

That is not baloney, sir. That is baloney after traveling the digestive tract of a male bovine.

Hopefully the Young attorneys will file a response in opposition to the petition for en banc in which they call it what it is.

[Offwidth]

Will somebody with a clue be writing rebuttal to that baloney pile?

[Paladin]

So, what does Hawai'i want CA9 to do?

p. 3

The panel decision should be vacated, and the case remanded to the District Court so that it can be reassessed based on an accurate understanding of Hawaii law.

That sounds like a quick, clean GVR in light of the AG's letter.

ETA: If it gets GVR'ed, does it get sent back down to the same 3-judge panel?

p. 17:

The Court should grant rehearing en banc and reverse this misguided and dangerous decision.

That sounds like they want an en banc panel convened, an en banc appeal heard and a reversal.

Which is it??? Or are they using the shotgun approach?

[rplaw]

Their brief is an interesting argument.

First they argue that the panel got it wrong because they didn't consider the "after acquired evidence" consisting of the AG letter the panel didn't have.

Then, they distorted the holding in Peruta by saying it said something it flatly and categorically DID NOT because the 9th punted the issue of OC because that issue wasn't before the court.

Next, they raised a specious argument that anyone in need can get a permit, which argument is defeated by the simple fact that NO ONE has ever been issued a permit regardless of "need" except for security guards.

I wonder sometimes about the "quality" of those high dollar attorneys in cases like this. Not that it matters, the 9th is comprised of the same "quality" of "high dollar" attorneys, they just made it to the bench where the lack of quality becomes the standard of the profession.

[CCWFacts]

I read their brief, all 26 pages of it. It was nuts. Basically the Peruta en banc said, "you should have asked for any kind of carry, not just concealed carry", and the Young case asked for exactly that, and so the Young panel decision was exactly what the Peruta en banc had said it should be. The AG's recent letter saying that, hey, if you've got a stalker problem, apply for an open carry permit! is ridiculous because there are zero examples of that actually happening in Hawaii and so on.

A lot of the en banc result has to do with luck. It's 11 judges drawn at random. Trump will have appointed a few more by the time an en banc gets seated, making this far from a sure victory for the other side.

I'm not convinced at all that this will be re-heard en banc.

[champu]

If they don't try to differentiate between Moore than they are almost begging for SCOTUS to take it on appeal.

[press1280]

If they don't try to differentiate between Moore than they are almost begging for SCOTUS to take it on appeal.

[champu]

...But then they'll have to explain why a regime that doesn't issue permits (OC or CC under each respective standard) is materially any different than the IL ban struck down in Moore.

have to

[press1280]

The essence of the argument (when you get to the end of it) is that open carry "imperils public safety" and that therefore "public safety" trumps an individual right of self defense. How this squares with the language of "shall not be infringed" is beyond me.

If the 9th takes this up then they'll have to do a crazy gymnastics move.

They won't just say the right doesn't apply outside the home. But then they'll have to explain why a regime that doesn't issue permits (OC or CC under each respective standard) is materially any different than the IL ban struck down in Moore.

[press1280]

Is it really a 3-4 month time frame waiting on the court to decide whether to do en banc or refuse it?

If it starts dragging on longer than that it'll be a good sign-that dissents are being written and en banc was denied.
But this is CA9 we're talking about.