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


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http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/24/12-17808.pdf

 

The panel reversed the district courts dismissal of claims brought against the County of Hawaii, dismissed plaintiffs appeal as to the State of Hawaii, and remanded, in plaintiffs 42 U.S.C. § 1983 action alleging that the denial of his application for a handgun license violated his Second Amendment right to carry a loaded firearm in public for self-defense.

The panel acknowledged that while the concealed carry of firearms categorically falls outside Second Amendment, it was satisfied that the Second Amendment encompasses a right to carry a firearm openly in public for self-defense. Analyzing the text of the Second Amendment and reviewing the relevant history, including founding-era treatises and nineteenth century case law, the panel stated that it was unpersuaded by the Countys and the States argument that the Second Amendment only has force within the home. The panel stated that once identified as an individual right focused on self-defense, the right to bear arms must guarantee some right to self-defense in public.

But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense. We would thus flout the Constitution if we were to hold that, in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion. Reid, 1 Ala. at 616. While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, the enshrinement of constitutional rights necessarily takes certain policy choices off the table. Heller, 554 U.S. at 636.

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Wow. heck has frozen over. How broad does this decision apply? Does this smack down the same restrictions in California?

The 9th Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington (state). It also has jurisdiction over Guam and the Northern Mariana Islands. This decision, however, only has direct bearing on one case, because it remanded the case back to the district court, which has jurisdiction only over Hawaii.

 

Technically, the Circuit court said that the District court cannot dismiss the case on the basis of an open carry ban being constitutional, because an open carry ban is unconstitutional. The District court may still dismiss the case. It's just going to have to find a different reason to do it.

 

Additionally, Hawaii can, I believe, appeal to the full Circuit court, because this decision was "only" a panel of 3 judges (O’Scannlain [OR], Clifton [HI], Ikuta [CA]) from the full court.

 

IANAL

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Wow. heck has frozen over. How broad does this decision apply? Does this smack down the same restrictions in California?

The 9th Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington (state). It also has jurisdiction over Guam and the Northern Mariana Islands. This decision, however, only has direct bearing on one case, because it remanded the case back to the district court, which has jurisdiction only over Hawaii.

 

Technically, the Circuit court said that the District court cannot dismiss the case on the basis of an open carry ban being constitutional, because an open carry ban is unconstitutional. The District court may still dismiss the case. It's just going to have to find a different reason to do it.

 

Additionally, Hawaii can, I believe, appeal to the full Circuit court, because this decision was "only" a panel of 3 judges (O’Scannlain [OR], Clifton [HI], Ikuta [CA]) from the full court.

 

IANAL

 

If Hawaii does request an en banc. The Ninth is between a rock and a hard place.

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Wow. heck has frozen over. How broad does this decision apply? Does this smack down the same restrictions in California?

The 9th Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington (state). It also has jurisdiction over Guam and the Northern Mariana Islands. This decision, however, only has direct bearing on one case, because it remanded the case back to the district court, which has jurisdiction only over Hawaii.

 

Technically, the Circuit court said that the District court cannot dismiss the case on the basis of an open carry ban being constitutional, because an open carry ban is unconstitutional. The District court may still dismiss the case. It's just going to have to find a different reason to do it.

 

Additionally, Hawaii can, I believe, appeal to the full Circuit court, because this decision was "only" a panel of 3 judges (O’Scannlain [OR], Clifton [HI], Ikuta [CA]) from the full court.

 

IANAL

 

Yep, and I'm quite sure they will.

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Additionally, Hawaii can, I believe, appeal to the full Circuit court, because this decision was "only" a panel of 3 judges (O’Scannlain [OR], Clifton [HI], Ikuta [CA]) from the full court.

 

IANAL

The other thread on this said it was a split two to three decision.

 

Well, it was 2-1. O’Scannlain wrote the opinion. Clifton dissented.

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Wow. heck has frozen over. How broad does this decision apply? Does this smack down the same restrictions in California?

The 9th Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington (state). It also has jurisdiction over Guam and the Northern Mariana Islands. This decision, however, only has direct bearing on one case, because it remanded the case back to the district court, which has jurisdiction only over Hawaii.

 

Technically, the Circuit court said that the District court cannot dismiss the case on the basis of an open carry ban being constitutional, because an open carry ban is unconstitutional. The District court may still dismiss the case. It's just going to have to find a different reason to do it.

 

Additionally, Hawaii can, I believe, appeal to the full Circuit court, because this decision was "only" a panel of 3 judges (O’Scannlain [OR], Clifton [HI], Ikuta [CA]) from the full court.

 

IANAL

 

Yep, and I'm quite sure they will.

 

Not a slam dunk. If Hawaii, and everyone giving them aid and assistance, fails to come up with a reasonable defense, to denying the plaintiffs 2A rights.

They might decide to contain the damage.

Like Lisa Madigan did.

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Their defense is that the right doesn't extend past the front door. It's not a good one, but there are judges out there who will buy into any wacky theory they're given.

 

For example, the dissent here advances the theory that the 19th century state cases from Southern states (the only ones to rule on the matter) should be disregarded because they were slave states.

The other defense is that public carry isn't part of the "core" of the 2A; this was swatted down effectively by the majority who pointed out that "keep" and "bear" are distinct and bear was not intended to be lesser than keep.

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So, how can this go south on us? Or should we evoke the first rule of fight club?

The state (or I guess County in this case) will ask the 9th Circuit for en banc (an expanded panel of 11 judges). Basically a re-do, which the 9th LOVES doing in order to kill off any positive 2A decisions.

 

Would this initial ruling have any bearing on a future en banc?

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If the Ninth rules against the plaintiff, George Young, he will appeal to the Supreme Court. Kavanaugh will be confirmed next month. Mitch seems motivated. They only need four votes to accept the case. Gorsuch, Kavanaugh and Thomas will vote to accept the case. If Alito or Roberts vote accept. Do the defendants in Hawaii, especially the ones that will be standing before the court, look forward to that scenario? I would bet they don't.

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If the Ninth rules against the plaintiff, George Young, he will appeal to the Supreme Court. Kavanaugh will be confirmed next month. Mitch seems motivated. They only need four votes to accept the case. Gorsuch, Kavanaugh and Thomas will vote to accept the case. If Alito or Roberts vote accept. Do the defendants in Hawaii, especially the ones that will be standing before the court, look forward to that scenario? I would bet they don't.

Yes the antis stand to lose the whole enchilada if this gets appealed and doesn’t go their way.

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This decision, however, only has direct bearing on one case, because it remanded the case back to the district court, which has jurisdiction only over Hawaii.

This is inaccurate. The rulings of the appellate court are binding on all of the states under it regardless of whether the case is remanded. Other actions that the district court may take in the case aren't binding, but the rulings of the appellate court are.

 

If Hawaii requests an en banc, it is granted, and it goes the other way, it may be a good setup to go to the supremes because there will likely be a conflict between the circuits.

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If the 9th does reverse this decision en banc, the 9th will be in a world of confusion. It has already rules concealed carry is not a right and may be prohibited and then with the reversal you have open carry can be denied. This will result in the 9th circuit court of appeals allowing de-facto bans to remain in place. Examples: State of HI bans concealed carry ( will not issue permits ) and also denies open carry permits, right denied. California bans loaded open carry, but LA Country and other jurisdictions will not issue concealed carry permits to otherwise lawful residents. Certainly this is a practical ban on carry in those jurisdictions.

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If the 9th does reverse this decision en banc, the 9th will be in a world of confusion. It has already rules concealed carry is not a right and may be prohibited and then with the reversal you have open carry can be denied. This will result in the 9th circuit court of appeals allowing de-facto bans to remain in place. Examples: State of HI bans concealed carry ( will not issue permits ) and also denies open carry permits, right denied. California bans loaded open carry, but LA Country and other jurisdictions will not issue concealed carry permits to otherwise lawful residents. Certainly this is a practical ban on carry in those jurisdictions.

They're operating under the same legal theory that IL AG has tried to claim - that there are no 2A rights outside the home. Despite losing on that claim in Moore they still try to claim that it doesn't exist in the current non-resident licensing lawsuits.

 

It's pretty much the modus operandi of anti gun jurisdictions, to just continue with the decades-old claims that the 2A is the National Guard et al and pretend that Heller and McDonald never happened... and the lower courts have all too often been perfectly fine to go along with that, as Justice Thomas has rightly pointed out.

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Their playbook keeps changing actually, and their sympathizers on the court know they have to come up with new explanations. They know a ruling that flat out says the right doesn't extend past your front door is a red flag for SCOTUS. So the new tact is to say it's merely "regulating" when only 1 out of 4 people can get carry permits, or that public carry isn't part of the "core" right (their way of saying NO RIGHT AT ALL).

And all the 19th Century pro carry opinions like Nunn and Chandler can simply be tossed aside because those were slave states. These are all novel theories by people who know the building's on fire and all the exits are blocked.

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I don't see this surviving en banc in that circuit, in any form, so I just can't even get to the question of national recip. I suppose if it did survive, it's a move in the right direction, but there are still so many wrong forces out there. This Congress can barely get anything done, let alone anything as controversial as 2A requirements.

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Their playbook keeps changing actually, and their sympathizers on the court know they have to come up with new explanations.

 

 

 

 

​Ethical judges apply their intellect to see how the Constitution or case law applies to any given case and they rule accordingly.

 

Activist, outcome-based judges make a decision based on how they want it to affect society, with no regard for the Constitution, case law or even logic. They then use their intellect to craft rationalizations for their decision, no mater how convoluted the thinking or how tortured the logic.

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You can take en banc to the bank.

I doubt they'll chance it. If they win en banc, which I presume they would, it would be prime for SCOTUS, who might not rule as narrowly as the existing ruling is. I bet Hawaii and California begin to allow a nominal number of permits so they are not effectively no-issue states. The Supremes would have the authority to declare any permitting scheme an undue burden on the 2nd. Some of Clarence Thomas's remarks make me think he would do just that given the opportunity.
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