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

[press1280]

[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.

[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.

[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.

[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]

Perhaps.

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

[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

[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).

[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.

[CalAlumnus]

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).

This is basically an argument about respect and honor. "Dance with the one who brung ya" and all that. No one was interested in Young's case until Beck did some good work, and then suddenly they come calling to try to take over. I get it.

The point remains that when Hawaii County lost, they hired Neal Katyal, who was an acting Solicitor General under Obama. Solicitor General is arguably one of three most prestigious positions for an attorney (the other two being US Attorney General and Supreme Court Justice). They brought in the big guns.

Honor be damned. This case could have broad implications for 2A jurisprudence in the 9th Circuit. We needed someone at Katyal's level. Would it have made a difference to have a Clement do orals? Maybe, maybe not. But now we'll never know.

[OverturnWickard]

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).

Yes, no Second Amendment case is ever likely to prevail in the Ninth Circuit with Chief Judge Thomas on his crusade to abolish the 2A. The point of getting Paul Clement to take the case is to make sure the appeal record is clean and directly limited to a core Second Amendment question. It is much MUCH easier to get a cert grant if the state cannot simply state in its opposition brief that "the en banc court did not squarely address the merits of the Second Amendment claim since it was too busy trying to make sense of what the plaintiff was actually arguing" or something along those lines. Young's due process argument also does not strike me as particularly helpful.

And I need not restate the obvious; while I have a great deal of respect for Mr. Beck for making this case happen for the plaintiff, his oral argument skills simply will not cut it if this goes to SCOTUS. If he petitions for cert without retaining specialized appellate counsel, it would be best if it were denied.

[LVSox]

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).

They haven’t just improved “a bit,” they’ve improved exponentially. When this panel was drawn, there were 16 Dem appointees, and 7 Republicans, one of whom being anti-gunner Bennett. In addition, Clifton and O’Scannlain were eligible as Senior Judges on the 3-judge panel. So that leaves a total of a likely 17 anti-gunners (16 D-appointees minus Thomas who is an autopick plus Clifton and Bennett who are anti-gunning R appointees) against 7 sympathetic judges (7 R appointees minus Bennett, plus O’Scannlain) vying for the 10 remaining spots, which we would need to win 6 of.

That means the hypergeometric probability of us drawing a sympathetic panel last February was less than 1%, or 0.008494557.

On the other hand, currently there are 16 D appointees and 13 R appointees. Subtracting Thomas again and moving Bennett to the anti-side gets us to 16-12 for the pool of candidates to be among the 10 selected to sit with Chief Judge Thomas on the Duncan v. Becerra en banc panel.

That’s a hypergeometric probability of us drawing a good panel today of almost 13%, or .128146453.

To be sure, a 13% chance is still a long shot, but it’s a hell of a lot better than the impossibility that was this case, and discretion is the better part of valor.

At this point, it seems clear that the best hope is ACB’s swift nomination and confirmation, and a cert grant.

[Elgatodeacero]

This nonsense will not end until the Supreme Court ends it.

[johnireland]

How can anyone read all these pages and pages and pages and thread and threads and threads about the legal games and Constitutional dishonesty going on, and still have an ounce of respect or belief in our courts. It is time to replace all the judges with average citizens, and replace all the lawyers with same. No one serves more than six months...and no case takes longer than that to be resolved.

[curtisfong]

an ounce of respect or belief in our courts

When the calculus falls down to simply counting judges to get an accurate prediction, I couldn't agree more.