Jump to content


Photo

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


  • Please log in to reply
42 replies to this topic

#31 Charles Nichols

    Member

  • Members
  • PipPipPipPip
  • 240 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
  • 3,256 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
  • 2,414 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
  • 3,256 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
  • 3,412 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
  • 240 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
  • PipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPip
  • 825 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
  • PipPipPipPipPip
  • 264 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
  • 240 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
  • 230 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
  • 240 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
  • 230 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
  • 240 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.






0 user(s) are reading this topic

0 members, 0 guests, 0 anonymous users