Jump to content


Photo

Young v Hawaii - Ninth Circuit Panel decision upholds right to public carry


  • Please log in to reply
46 replies to this topic

#31 Charles Nichols

    Member

  • Members
  • PipPipPipPip
  • 249 posts
  • Joined: 15-June 16

Posted 27 July 2018 - 09:09 PM

So SUCKS that the Constitution, as written, can’t be followed.

Hopefully President Trump can Appoint enough Judges that the Constitution will matter again!!

Not in the 9th circuit.  So far he has appointed one circuit court and two district court judges.  All three appointments were praised by the two anti-gun, left-wing senators from Hawaii.



#32 ChicagoRonin70

    The Landlord of the Flies!

  • Supporting Members Team
  • 3,342 posts
  • Joined: 02-August 14

Posted 27 July 2018 - 11:25 PM

Hey, Charles Nichols,

 

I have wondered why you didn't also include a First Amendment aspect to your suit by framing open carry and support of the Second Amendment as political speech (even going so far as to claim that it is unpopular speech and thus is the very reason that the First Amendment protections are vital). It absolutely is a matter of free expression to openly show one's support of one's political beliefs regarding the right to keep and bear arms, especially in the face of bigotry and attempts to suppress said expression.

 

First Amendment cases are always more potent and harder to defeat than merely a Second Amendment case, so it should be standard practice to claim steadfastly that the individual's choice to bear arms—especially openly—is protected speech.


"A well educated Media, being necessary for the preservation of a free State, the right of the people to keep and read books, shall not be infringed."

 

"A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

 

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me
 
“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb
 
“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein
 
“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me
 
"It ain't braggin' if you done it." —Will Rogers

 

Gb1XExdm.jpg
 
 

 
 
 
 


#33 Gamma

    Member

  • Members
  • 2,431 posts
  • Joined: 29-December 13

Posted 27 July 2018 - 11:49 PM

I have wondered why you didn't also include a First Amendment aspect to your suit by framing open carry and support of the Second Amendment as political speech (even going so far as to claim that it is unpopular speech and thus is the very reason that the First Amendment protections are vital). It absolutely is a matter of free expression to openly show one's support of one's political beliefs regarding the right to keep and bear arms, especially in the face of bigotry and attempts to suppress said expression.
 
First Amendment cases are always more potent and harder to defeat than merely a Second Amendment case, so it should be standard practice to claim steadfastly that the individual's choice to bear arms—especially openly—is protected speech.

I'm reminded of something that happened back during a government shutdown, when they closed public access to monuments and such in Washington DC.

People who climbed over barricades to see a monument were subject to arrest - unless they claimed they were exercising their First Amendment rights, then they were free to enter. Seems crazy but that was what was happening, apparently to stave off lawsuits.

Edited by Gamma, 27 July 2018 - 11:50 PM.

Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#34 ChicagoRonin70

    The Landlord of the Flies!

  • Supporting Members Team
  • 3,342 posts
  • Joined: 02-August 14

Posted 28 July 2018 - 12:31 AM

 

I have wondered why you didn't also include a First Amendment aspect to your suit by framing open carry and support of the Second Amendment as political speech (even going so far as to claim that it is unpopular speech and thus is the very reason that the First Amendment protections are vital). It absolutely is a matter of free expression to openly show one's support of one's political beliefs regarding the right to keep and bear arms, especially in the face of bigotry and attempts to suppress said expression.
 
First Amendment cases are always more potent and harder to defeat than merely a Second Amendment case, so it should be standard practice to claim steadfastly that the individual's choice to bear arms—especially openly—is protected speech.

I'm reminded of something that happened back during a government shutdown, when they closed public access to monuments and such in Washington DC.

People who climbed over barricades to see a monument were subject to arrest - unless they claimed they were exercising their First Amendment rights, then they were free to enter. Seems crazy but that was what was happening, apparently to stave off lawsuits.

 

 

indeed. As someone who has worked as a political journalist, among other things, the b*tchslap power of invoking the First Amendment is a powerful talisman and impediment to the powers that be interfering with Constitutional rights, and we should learn from the examples of protesters and dissidents who use it very effectively to put meddling politicians in their rightful place, i.e., as public servants whose job it is to do the bidding of the People, not push their ideology where it isn't wanted.


"A well educated Media, being necessary for the preservation of a free State, the right of the people to keep and read books, shall not be infringed."

 

"A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

 

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me
 
“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb
 
“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein
 
“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me
 
"It ain't braggin' if you done it." —Will Rogers

 

Gb1XExdm.jpg
 
 

 
 
 
 


#35 TomKoz

    Member

  • Supporting Members Team
  • 3,593 posts
  • Joined: 04-February 10

Posted 28 July 2018 - 07:17 AM

Hey, Charles Nichols,
 
I have wondered why you didn't also include a First Amendment aspect to your suit by framing open carry and support of the Second Amendment as political speech (even going so far as to claim that it is unpopular speech and thus is the very reason that the First Amendment protections are vital). It absolutely is a matter of free expression to openly show one's support of one's political beliefs regarding the right to keep and bear arms, especially in the face of bigotry and attempts to suppress said expression.
 
First Amendment cases are always more potent and harder to defeat than merely a Second Amendment case, so it should be standard practice to claim steadfastly that the individual's choice to bear armsespecially openlyis protected speech.

I Like it !!

Driving over Speed Limit - Free Speech !!
Red Light Camera Infraction - Free Speech !!
Refuse to Pay / Post IL Vehicle License Tag / Tax - Free (literally) Speech !!
Etc., Etc...

The SAVINGS are Endless !!

Edited by TomKoz, 28 July 2018 - 07:31 AM.

Stay Alert ... Stay Alive !!

#36 Charles Nichols

    Member

  • Members
  • PipPipPipPip
  • 249 posts
  • Joined: 15-June 16

Posted 29 July 2018 - 12:13 AM

I did not receive any email notifications to the above questions but since I'm here...

 

I did not include a First Amendment challenge against the state laws because the Nordyke v. King case was originally a First Amendment case and it lost.  The Nordyke v. King decisions are online read the pre-Heller decisions in that case and you can see why my 1st Amendment challenge to the state bans would likely fail.

 

I did include a First Amendment challenge against the City of Redondo Beach defendants which was an easier case to make given state preemption and the fact that, at the time, the City did not allow demonstrations, not even with a permit as the city code prohibited the issuing of permits to demonstrate.  And because the City did grant permits to movie companies to film actors carrying real guns in the city.

 

There is a good case to make that the city prohibiting the carrying of an unloaded long gun, which was perfectly legal at the time (and still is if the long gun is an antique), in protest of the city and state gun laws while at the same time permitting films and TV shows to be made in the city with actors carrying firearms in public is a violation of the First Amendment.

 

Technically, my First Amendment claim against the Redondo Beach defendants is preserved because I voluntarily dismissed my lawsuit against the Redondo Beach defendants, without prejudice.  I can refile it, or a new lawsuit anytime I choose.  



#37 speedbump

    Member

  • Members
  • PipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPip
  • 870 posts
  • Joined: 20-August 13

Posted 08 August 2018 - 08:05 AM

Good article with background info:

https://www.reuters....t-idUSKBN1KT13B
"J.J., you are an anomaly !" ~Mike Rowe~ aka: Mr. Molly

#38 fxdpntc

    Member

  • Members
  • PipPipPipPipPipPip
  • 310 posts
  • Joined: 24-September 13

Posted 08 August 2018 - 12:00 PM

Good article with background info:

https://www.reuters....t-idUSKBN1KT13B

“Heller was not intended to extend the protections found in the Second Amendment to any area outside the home,” Hawaii said in a 2013 filing in the case.

 

That's pretty unambiguous.


NRA Life Member

ISRA Life Member

USPSA Life Member

USMC 68-69


#39 Charles Nichols

    Member

  • Members
  • PipPipPipPip
  • 249 posts
  • Joined: 15-June 16

Posted 08 August 2018 - 09:17 PM

I, of course, have a particular interest in whether or not this case goes en banc.  I wrote the following in response to a question asked on my Facebook page:
 

This circuit (9th circuit court of appeals) has its own rule (regarding en banc petitions) which states:
 
"When the opinion of a panel directly conflicts with an existing opinion by another court of appeals and substantially affects a rule of national application in which there is an overriding need for national uniformity, the existence of such conflict is an appropriate ground for petitioning for rehearing en banc."
 
Judge O'Scannlain carefully wrote his decision so that it does not conflict with any Federal circuit. There is a conflict between the DC circuit and this circuit on concealed carry but the Young v. Hawaii decision did not create that split.
 
The problem that the Hawaii defendants face is that their position, that the Second Amendment is limited to the inside of one's home conflicts with every Federal circuit so what can they argue for in their en banc petition? To create direct conflicts with every Federal court of appeals in violation of this circuit's own rule?


#40 press1280

    Member

  • Members
  • PipPipPipPip
  • 243 posts
  • Joined: 23-October 11

Posted 09 August 2018 - 07:20 AM

They'll try to worm their way around it just like the dissent and claim it's not a ban since a licensing system exists and some lucky person may one day be deemed worthy. Sure, it'll look real bad but Hawaii knows they'll find more than 1 judge on the 9th who will be skilled at crafting an opinion which holds a licensing scheme that never issues permits is satisfying the right.

#41 Charles Nichols

    Member

  • Members
  • PipPipPipPip
  • 249 posts
  • Joined: 15-June 16

Posted 09 August 2018 - 09:34 PM

They'll try to worm their way around it just like the dissent and claim it's not a ban since a licensing system exists and some lucky person may one day be deemed worthy. Sure, it'll look real bad but Hawaii knows they'll find more than 1 judge on the 9th who will be skilled at crafting an opinion which holds a licensing scheme that never issues permits is satisfying the right.

The Hawaii defendants will have to find more than one judge.  The Hawaii defendants needed two judges to win before the three-judge panel, they found one.  They now need a majority of the active, non-recused 9th circuit court judges to vote in favor of granting an en banc petition, assuming one is filed, or voting to take the case en banc, sua sponte.  But taklng a case en banc does not guarantee success.  Ten on the eleven judges will be drawn from an en banc pool of judges which, by my analysis, consists of 12 judges who are probable/likely/possible votes for overturning the Young v. Hawaii three-judge panel decision, seven judges who are probable/likely/possible votes for affirming the three-judge panel decision and three judges whose votes are impossible to predict.  In order to win before an en banc panel, six votes are needed.

 

But let us assume that Young v. Hawaii is taken en banc and it loses two years from now.  So what?  The three-judge panel assigned to my appeal will apply the en banc decision in Young v. Hawaii to my Second Amendment claim, followed by my en banc petition filed before a very different pool of en banc judges which, if reheard en banc, would add another two years before there is a final decision in the 9th circuit court of appeals.

 

Put yourself in the shoes of a 9th circuit court of appeals judge who would give one of his two left arms to reverse the three-judge panel decision in Young v. Hawaii and hold that the Second Amendment does not exist one inch outside the doors to our homes.  He has to ask himself "If I am able to defeat Young en banc this time, will I defeat Nichols en banc next time?  And how confident am I that a President Trump won't have replaced Justice Ginsburg and/or Justice Breyer by the time the cert petition is filed in Nichols?" 



#42 press1280

    Member

  • Members
  • PipPipPipPip
  • 243 posts
  • Joined: 23-October 11

Posted 10 August 2018 - 03:59 PM

I find it highly unlikely that they take Young en banc, reverse, then take your case en banc too(after the 3 judge panel would be forced to rule against you). At that point the whole 9th circuit should write a letter to SCOTUS saying "We don't know what the heck we want, please take a public carry case now"

 

As far as the judges go you may be right, however, the Peruta concurrence shows there's numerous judges who are fine with may-issue even if they "hold" that the right extends out the front door, and Judge Clifton is obviously fine with no-issue as long as there's a "scheme" in place.



#43 Charles Nichols

    Member

  • Members
  • PipPipPipPip
  • 249 posts
  • Joined: 15-June 16

Posted 10 August 2018 - 06:44 PM

I find it highly unlikely that they take Young en banc, reverse, then take your case en banc too(after the 3 judge panel would be forced to rule against you). At that point the whole 9th circuit should write a letter to SCOTUS saying "We don't know what the heck we want, please take a public carry case now"

 

As far as the judges go you may be right, however, the Peruta concurrence shows there's numerous judges who are fine with may-issue even if they "hold" that the right extends out the front door, and Judge Clifton is obviously fine with no-issue as long as there's a "scheme" in place.

There will be at least seven new members of the en banc pool of judges eligible to vote on my en banc petition who are not on the court today.  If there are no retirements/senior status/or other vacancies filled by Trump then the votes are theoretically there, and if not, it will give us the opportunity to see which of Trumps' nominees files a dissent to the denial of my en banc petition.  Judge Clifton won't be on the en banc panel and as far as those judges who would be fine with "may issue" Open Carry, it sucks for them that California's Open Carry bans are statutory, and not a policy choice as in Hawaii.

 

As for the whole 9th circuit writing a letter to SCOTUS, according to the beloved by some (but not by me) Alan Gura it takes only two judges to certify a question to the US Supreme Court (SCOTUS Rule 19).  Presumably, it will take six judges from the en banc panel to certify the Open Carry question once an en banc panel takes jurisdiction. 

 

In any event, it ain't over until the fat lady sings.



#44 Charles Nichols

    Member

  • Members
  • PipPipPipPip
  • 249 posts
  • Joined: 15-June 16

Posted 14 September 2018 - 07:41 PM

Those who have subscribed to my website now have a link to the en banc petition filed today.



#45 press1280

    Member

  • Members
  • PipPipPipPip
  • 243 posts
  • Joined: 23-October 11

Posted 15 September 2018 - 05:22 AM

HI spends a lot of effort trying to convince the court that the OC permit scheme isn't limited to security guards, exc.; instead anyone is eligible but they have to prove a special need (like the CCW permit). So in essence they want the court to think there's a huge difference between a ban and a permit system that never issues permits (basically the dissent's bizarre opinion).

 

Ridiculous, but a decent bet the 9th will buy it hook, line, and sinker.



#46 Hipshot Percussion

    Member

  • Supporting Members Team
  • 2,874 posts
  • Joined: 05-February 14

Posted 20 September 2018 - 10:11 AM

From Ammoland

 

Expected: Hawaii Files For Ninth Circuit En Banc Ruling On Right To Bear Arms

 

Read more: https://www.ammoland.../#ixzz5RevGe1eU 



Under Creative Commons License: Attribution 
Follow us: @Ammoland on Twitter | Ammoland on Facebook

Hawaii – -(AmmoLand.com)- On 24 July, 2018, a three-judge panel of the Ninth Circuit upheld the right to bear arms outside the home. As expected, the State of Hawaii waited until the last possible day, then filed a petition for the Ninth Circuit to hear the case en banc, that is, by the whole court.

Because the Ninth Circuit is so large and awkward [President Trump should break this court up] compared to other circuits, an en banc hearing of the Ninth involves 11 judges chosen at random, out of the 23 or 24 judges (depending on confirmation hearings) on the Ninth Circuit.

In the closely linked case of Peruta, the Ninth Circuit granted an en banc hearing of the case. The process took about 18 months.

In the Peruta case, a request for an en banc hearing was denied in November of 2014. Then a judge on the Ninth Circuit called for an en banc vote anyway.  The the vote for an en banc hearing was announced on 26 March, 2015. Oral arguments were heard on 16 June 2015.  On June 10th, 2016, the Ninth Circuit, en banc, reversed the ruling of the three-judge panel on Peruta and narrowly found there was no right to carry arms concealed outside the home. The case was appealed to the Supreme Court, which refused to grant certiorari.

In Young v. State of Hawaii, the case rules only on permits for open carry, as the precedent of Peruta foreclosed a right to concealed carry in the Ninth Circuit.

In the petition for an en banc rehearing, the Government of Hawaii claims the mere potential for police chiefs to issue open carry permits is sufficient to satisfy any right to bear arms outside the home, although only four permits have been issued for people (outside of employment permits) in the last 18 years. From Young v. State of Hawaii:

First, the panel invalidated Hawaii’s law on the ground that it limits open-carry licenses to “security guards” and other individuals whose jobs entail protecting life and property. Add. 51-52. But that is just wrong. By its plain terms, Hawaii Revised Statutes § 134-9 makes open-carry licenses available to any otherwise-qualified individual who “sufficiently indicate[s]” an “urgency” or “need” to carry a firearm and who is “engaged in the protection of life and property.” Haw. Rev. Stat. § 134-9(a). Moreover, if there was any doubt on the question, the Hawaii Attorney General has removed it by issuing a formal legal opinion that clarifies that the law extends to private individuals as well as security officers, and that advises police chiefs that victims of domestic violence, individuals who face a credible threat of armed robbery or violent crime, and other private persons may be eligible for open-carry licenses.

The Ninth Circuit has proved hostile to the Second Amendment right to keep and bear arms. It has interpreted the Second Amendment in the most narrow way possible, in order to infringe on the exercise of Second Amendment rights as much as it can get away with. The only authorities who have the power to reverse the Ninth Circuit are the Supreme Court and future Ninth Circuit judges.

Legislative remedies are possible with the California government but are highly unlikely in the foreseeable future. The California government seems bent on passing as many infringements on Second Amendment rights as it can.

Legislative remedies are also possible with the federal legislature, who could tie the exercise of Second Amendment rights to federal money that is given to California.

As of this writing, it appears that Judge Kavanaugh will be confirmed to become Justice Kavanaugh on the U.S. Supreme Court. This changes the dynamics of a potential Supreme Court appeal if the Ninth Circuit decides to hear Young v. State of Hawaii en banc, and the decision is appealed to the Supreme Court.

As we saw with the Peruta decision, the en banc process can take 18 months or more. Do not expect any definitive rulings on the case for at least two years.


“I have fought the good fight to the end; I have run the race to the finish: I have kept the faith."  Timothy Chapter 4 verse 7

 

"Legitimate self-defense has absolutely nothing to do with the criminal misuse of guns."   Gerald Vernon, veteran firearms instructor

 

New Gunner Journal

 


#47 Charles Nichols

    Member

  • Members
  • PipPipPipPip
  • 249 posts
  • Joined: 15-June 16

Posted 20 September 2018 - 09:56 PM

<QUOTE>Do not expect any definitive rulings on the case for at least two years.</QUOTE>

 

Theoretically, we could have a definitive ruling from the 9th circuit court of appeals in a month or so.  That largely depends upon how much resistance there is to granting or denying the en banc petition.

 

I posted this the other day on my Facebook page.  It was a list of the then currently pending en banc cases plus the two Second Amendment cases which had been taken en banc.

 

The days from the en banc petition being filed to being granted ranged from 104 days to 961 days.  On the other hand, en banc petitions have been denied in less than a month.

 

 

Appeal En Banc Petition Filed En Banc Petition Granted Days from Filing to Grant of Petition Topic Peruta 10-56971 2/27/2014 3/26/2015 392 #2A Teixera 13-17132 7/21/2016 12/27/2016 159 #2A Pending         NO. 13-35574 2/22/2017 6/30/2017 128 Railway Labor Act  Nos. 14-16161+ 10/14/2016 12/29/2017 441 Attorney Fees Nos. 16-16072+ 10/17/2017 1/29/2018 104 1st Amendment - Commercial  Nos. 15-15791+ 9/20/2017 2/16/2018 149 Fair Labor Standards Act No. 14-72003 11/22/2017 3/29/2018 127 Immigration Appeal 09-99012+ 9/18/2015 4/26/2018 961 Death Penalty Case Nos. 15-56014+ 3/8/2018 7/27/2018 141 class action No. 15-10553 3/26/2018 8/7/2018 134 mortgage fraud  - criminal

 






0 user(s) are reading this topic

0 members, 0 guests, 0 anonymous users