Small win for us - Young v Hawaii - CCA9

[Onward Allusion]

Or not so small . . . This will probably reach SOTUS at some point.

Excerpt below


07/24/2018, 01:25pm
Open carry of guns allowed by Second Amendment, appeals court rules

ByAssociated Press

LOS ANGELES — A federal appeals court has ruled that the Second Amendment provides the right to openly carry a gun in public for self-defense.

(edited title for clarity - Al)

[Bartholomew Roberts]

That’s the Ninth Circuit (who is on a pro-Second tear lately) reversing the Hawaiian district court in Young v. Hawaii: http://cdn.ca9.uscourts.gov/datastor...4/12-17808.pdf

I’ll be interested to see how the inevitable en banc review goes; but interesting.

[Aguila Blanca]

Ah, yes -- and the dissent predictably relies on the standard misinterpretation of Heller- to maintain that the right to keep and bear arms applies only in the home.

From the opening statements:

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 County’s and the State’s argument that the Second Amendment only has force within the home.

From the dissent:

In my view, this statutory scheme is the same type of “good cause” public carry regulation that the Second, Third, and Fourth Circuits upheld in
Kachalsky, Drake, and Woollard, respectively. Good cause licensing schemes, and extensive state regulation of public carry more generally, have a long history in the United States. While explicitly declining to elaborate on specific regulations, the Supreme Court in Heller expressly noted that the right secured by the Second Amendment is “not unlimited” and that there were “longstanding prohibitions” that were “presumptively lawful.” Heller, 554 U.S. at 626–27 & n. 26. I would hold that Hawaii’s statute is a longstanding, presumptively lawful regulation under Heller.

All of which ignores the obvious reality that Heller did not say all those longstanding laws ARE lawful, it said they are "presumptively" lawful. Which meant "They aren't under discussion today, so for now we'll presume that they're lawful until they each have their own day in court." Unfortunately, the courts are bending over backwards to avoid giving them their day in court by falsely proclaiming that Heller has already pronounced them lawful.

[kraigwy]

Apparently the 9th C. read the constitution and saw the word "bear" in the 2nd ammendment, then looked it up in the dictionary and discovered "bear" means "carry" not left at home.

Which is fine.

My question is, why cant we take this further? If the 2nd Amendment means we can "bear" arms, why do we need a Carry Permit. Doesnt that make the 2nd Amendment our carry permit, according the the 9ths Ruling.

[zukiphile]

Originally Posted by Kraigwy

If the 2nd Amendment means we can "bear" arms, why do we need a Carry Permit. Doesnt that make the 2nd Amendment our carry permit, according the the 9ths Ruling.

Your logic isn't wrong, but the secret to eating an elephant is doing it one bite at a time.

Originally Posted by Aguila Blanca

From the dissent:

That's not coherent. That a regulation is presumptively lawful isn't a holding on its merits and wouldn't resolve a challenge.

Earlier in the dissent, Clifton writes,

First, good cause licensing
schemes are longstanding and, therefore, are presumptively
lawful limitations on public carry of firearms under
Heller.

Emphasis added. That's not in Heller.

[kraigwy]

But, if the USSC gets the case, and upholds the 9ths position, wouldnt that modify Heller eliminating the need for carry permits?

I'm no lawyer of course, but I can read and thats the way I read the 2nd.

Who knows maybe the SHALL NOT INFRINGE just might kick in the way things are going.

[zukiphile]

Originally Posted by Kraigwy

But, if the USSC gets the case, and upholds the 9ths position, wouldnt that modify Heller eliminating the need for carry permits?

I wouldn't expect that. This case is about a good cause requirement for permits just the way Heller was about the right to keep a pistol in the home. The court will ordinarily decide a case narrowly on the facts and claims before it. The Sup Ct could uphold the 9th by prohibiting good cause licensing schemes, yet say nothing about shall issue schemes.

The other variable is that just because the court decides this case doesn't mean that the losing party just gives up. Recall that DC and Chicago resisted Heller for years. Even if you see Hawaii lose this case, will a legislator come up with a "shall issue" scheme with an onerously broad background check?

[vicGT]

I don't think I have a good grasp on the mechanics around this decision.

I think what happened here is nothing more than a court in Hawaii being told to repeat their trial, but with some helpful guidance from the 9th. If that is true, then no carry laws have been declared unconstitutional across the entire 9th, because that would mean this case is still happening, and so no conclusions can be drawn.

But there's so much news floating around about how open carry is now protected by the 2A according to the 9th that I'm left wondering: what, if anything, does this decision mean for laws across the entire 9th? Mulford Act implicated?

I want to say no, nothing is implicated yet, but I don't understand where this decision fits into the "flow" of a case's life in the judicial system. It doesn't seem as though the 9th has actually considered open carry, there was just some broad verbiage in this case that some have run with (run too far?)...

[rickyrick]

I have nothing to add, but I do appreciate those that take out time to help explain some of this legal stuff.

[Bartholomew Roberts]

The plaintiff sued Hawaii saying that their requirement for good cause to carry a handgun violated his Second Amendment rights. His suit was dismissed because the lower court said the Second Amendment doesn’t protect the right to carry a handgun outside the home and even if it did, the Hawaii law would meet intermediate scrutiny.

The Ninth Circuit 3-judge panel said the lower court was wrong on the law and that the Second Amendment does protect a right to carry a handgun openly outside the home for self-defense. The court, having corrected the lower court on the law, sent it back to the lower court to decide now that they’ve clarified the law.

This ruling is likely to be appealed to the full Ninth Circuit now. However, it is precedent in the Ninth Circuit until overruled.

[Aguila Blanca]

Originally Posted by zukiphile

Earlier in the dissent, Clifton writes,

Emphasis added. That's not in Heller.

Well, it is -- sort of. I believe it's in the dicta, but it is precisely this "throwaway" statement about existing, "presumptively lawful" regulations that Justice Scalia dropped into Heller that I have the most trouble with ... because this is not the first case where courts have used that language to declate that "Heller said it's okay so we don't even have to look at it," when in reality what I believe Heller was saying is, "That's not the question today, so we won't look at that today. We'll presume those other laws are legal for the moment, until they can be examined in the future."

But the liberal, anti-gun judges don't want to look at those other, existing "presumptively lawful" laws, so they instead adopt the fiction that Heller has already declared them lawful.

Originally Posted by kraigwy

But, if the USSC gets the case, and upholds the 9ths position, wouldnt that modify Heller eliminating the need for carry permits?

I'm no lawyer of course, but I can read and thats the way I read the 2nd.

Not necessarily. This case is actually about concealed carry vs. open carry. Some state courts (I believe Ohio and perhaps Idaho, and there may be others) have taken the approach that their state constitutions guarantee a right to bear (carry) arms. Therefore, if the legislature chooses to prohibit concealed carry, then open carry must be alloed under the [state] constitution.

This case was brought under federal law, but it's the same question. If I understood it correctly, Young's argument is that since Hawaii requires a permit to carry concealed but won't issue a permit except under "exceptional" circumstances, then he has a right to carry and the only way that right can be exercised is to carry openly.

Plaintiff alleged that the County violated the Second Amendment by enforcing against him the State’s limitations in section 134-9 on the open carry of firearms to those “engaged in the protection of life and property” and on the concealed carry of firearms to those who can demonstrate an “exceptional case.”

The panel acknowledged that while the concealed carry of firearms categorically falls outside Second Amendment protection [[i]note: I don't agree with them on this], see Peruta v. County of San Diego , 824 F.3d 919, 939 (2016) (en banc), 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 County’s and the State’s argument that the Second Amendment only has force within the home. [Another bastardized misstatement of Heller] 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. The panel held that because Hawaii law restricted plaintiff in exercising the right to carry a firearm openly, it burdened conduct protected by the Second Amendment.

[publius42]

Wasn't the DC gun ban about 30-40 years old when SCOTUS overturned it?

How long is "longstanding" anyway?

[Bartholomew Roberts]

If you’ve read Scalia’s books on textualism, you understand he meant “longstanding” to refer to the types of restrictions and traditions that existed when the founders wrote the Second. That’s not how it is being interpreted always which speaks either to judges who have no interest in what their bosses think about textualism or judges who are deliberately misapplying it.

[zukiphile]

Originally Posted by Aguila Balnca

Well, it is -- sort of. I believe it's in the dicta, but it is precisely this "throwaway" statement about existing, "presumptively lawful" regulations that Justice Scalia dropped into Heller that I have the most trouble with ... because this is not the first case where courts have used that language to declate that "Heller said it's okay so we don't even have to look at it," when in reality what I believe Heller was saying is, "That's not the question today, so we won't look at that today. We'll presume those other laws are legal for the moment, until they can be examined in the future."

There is no portion of Heller that says if a regulation is longstanding it is therefore presumptively lawful. That's a crude sleight of hand from Clifton, not Scalia. It's true that the restrictions he notes are longstanding and that he was presuming them lawful in Heller. That doesn't mean that all longstanding restrictions are even presumptively lawful. An apple is red and edible. That doesn't mean that all red things are therefore edible.

[Glenn E. Meyer]

That Scalia's prose is so easily and/or deliberately (malaciously) misapplied says that he did not clearly analyze the consequences of said prose. You can say that others should have or would have to decipher it but he laid the ground work for unintended consequences. I don't by into excusing him because others exploit something he could have prevented or explained better.

[zukiphile]

Originally Posted by Glenn E Meyer

That Scalia's prose is so easily and/or deliberately (malaciously) misapplied says that he did not clearly analyze the consequences of said prose.

Let's think about this before ignoring causation. It cannot be a proximate consequence of one's prose that others later misread it. It is not a mere misapplication of one's words to misread them or add terms. No one criticizes the decision in Plessy as "separate therefore equal" because that isn't what the decision actually was. The proximate cause of people creatively altering the language of Heller is the creativity of those people.

I would not assume that it is easy to publicly misconstrue a Sup Ct decision as badly as Clifton has.

Originally Posted by Glenn E Meyer

You can say that others should have or would have to decipher it but he laid the ground work for unintended consequences.

The Heller decision isn't a cypher; there isn't anything cryptic to decypher. Did Heller reach the issues of carrying in government buildings or by felons? Are these restrictions longstanding?

Originally Posted by Glenn E Meyer

I don't by into excusing him because others exploit something he could have prevented or explained better.

There is no point so clearly made that it can't be misconstrued by people seeking to misconstrue it. That opponents of this civil right attempt to recast the Heller decision doesn't lead to an accusation of the majority from which they need to be excused.

[Aguila Blanca]

What Clifton did was to conflate two separate statements out of Heller. You are correct -- it is sleight of hand. It's not just "crude" sleight of hand, it's downright scurrilous.

Originally Posted by Heller, p. 2, syllabus

The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of fire-arms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Also

Originally Posted by Heller, pp. 54-55

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

The "presumptively lawful" phrase occurs on page 55, as a footnote to the above statement.

Justice Scalia's intentions with regard to Second Amendment questions beyond the scope of the Heller case were clearly set forth on page 66:

Originally Posted by Heller, p.63

JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible.
See post, at 42–43. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U.S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.

https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

[johnm1]

I need a clarification. AB quoted justice Scalia regarding Bryer's 'questions beyond the scope of the Heller case' (the last quote above) that included

"one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U.S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty.

it almost seems to be a typo where I would have thought Justice Scalia would have written "in a state of utter uncertainty" to fit the rest of the sentence. Unless it is so obvious (to those that know) that Reynolds v. United States left it so 'uncertain' that Justice Scalia wrote that in 'jest'. But that is hard for me to consider.

I have the entire Heller decision and confirm that AB quoted it correctly. What I don't have is Reynolds v. United States, 98 U.S. 145 (1879). I'll try and look for it. Maybe I just don't understand the English language well enough.

[zukiphile]

John, I am reading this as consistent with the overall arguments.

Breyer challenges the majority to either justify or invalidate all the other restrictions on arms that weren't before the Court in Heller's case. The majority explains that just as Reynolds didn't settle every last potential question in free exercise, Heller isn't going to settle every last potential challenge to firearms restrictions.

We still have free exercise cases well more than a century after Reynolds, and we may still have 2d Am. cases a century after Heller (40 watt plasma rifle bans maybe).

[Bartholomew Roberts]

There is an aspect to this I don’t think I’ve ever explained sufficiently, although I’ve tried.

Judges are going to apply results-oriented logic in determining judicial outcomes. They shouldn’t; but they are people and they occasionally get trapped in their biases (see Dredd Scott, Korematsu, etc).

Scalia has written three books on how he analyzes legal disputes textually. Indeed, even the lefties on the court now use textualism routinely, although they still reach different results.

As that suggests, it is possible, though difficult, to support gun control laws using textualism and several courts have done so at least partially. To the extent courts are ruling “that law stands because Scalia said presumptively lawful” they are doing us a favor by passing the buck without doing any legal analysis.

It is certainly frustrating now; but a judge who does that was never going to be the guy who overturns a federal gun control law. By hanging his hat on Scalia’s dicta instead of doing the hard work of justifying it via textualism, he makes it that much easier for future generations of pro-Second people to overturn it.

However, the first step there is creating a culture that isn’t as overwhelmingly ignorant on Second Amendment issues and the technology surrounding them as our current culture is. If we can’t succeed there, then judicial decisions won’t save us.

[Glenn E. Meyer]

It is nice to assume that future judges will come from a pro-Second population. I thought it was previously claimed by some that judges don't act on biases but only considered application of legal principles and don't cherry pick precedents, phrases, dicta or whatever to justify their biases.

Some day the shining genius of Scalia will win the day despite all the misinterpretations that have followed his prose. If I had hired him to write a piece of legal wisdom that could be so constantly misinterpreted, I might reinterpret his genius based on the behavioral outcomes from the use of his product.

Of course, that is not the way to look at it. It's not his fault that this happened.

[zukiphile]

Originally Posted by Bartholomew Roberts

It is certainly frustrating now; but a judge who does that was never going to be the guy who overturns a federal gun control law. By hanging his hat on Scalia’s dicta instead of doing the hard work of justifying it via textualism, he makes it that much easier for future generations of pro-Second people to overturn it.

That's a sharp observation that sheds light both on the success of Heller specifically and textualism generally. That the Heller language is not under direct attack amongst jurists who dislike it speaks either to the strength of the analysis employed or the weakness of the contrary view, or both. In a broad sense, winning the argument in legal culture that produces judges and their opinions is more literally fundamental and important than any single case.

If your critics need to misquote text or misconstrue it to get to their result, they've conceded the argument.

[Aguila Blanca]

Well, we have the remember that the SCOTUS majority opinion in Heller was wrong.

Hillary told is that, so it must be true.



[Sarcasm, Sheldon.]

[Glenn E. Meyer]

When the state bans are overturned, pistol purchases are made easier in places like NY and the like - then we might have a win.

If misinterpretation and misquoted text carry the day, we don't. If they win behaviorally, an Internet analysis that they have conceded the argument is useless.

I'm sure the denizens of CA, NY or MA are happy with Internet opinion as compared to a change in their abilities to have various items.

Do we think right minded legal scholars and legislators will spring full blown from the forehead of the God of Gun Rights (who gave us this God given right) in the future and accept that the past precedents were based on biased misinterpretations and misquotes.

If your law firm produced a document and 4 of the partners said it was stupid and folks continually misinterpreted you but won the day with those misinterpretations, I'd put that in your performance review.

Maybe the Hawaii decision is a predictor of this? I wait for change that actually frees up gun rights as compared to discussion as to whether some analysis is brilliant.

[Bartholomew Roberts]

It is nice to assume that future judges will come from a pro-Second population. I thought it was previously claimed by some that judges don't act on biases but only considered application of legal principles and don't cherry pick precedents, phrases, dicta or whatever to justify their biases.

Well, I’m not assuming a future pro-2nd population. That’s just one of many arenas where we have to compete. Laws or judicial decisions can crack open doors to change culture but that doesn’t mean the culture changes - look at the 100 years between the 14th Amendment and the Civil Rights Act.

We’re unlikely to see better Second Amendment jurisprudence if most judges are ignorant on the subject though.

As far as bias goes, that’s certainly the ideal - and most of the judges I’ve met work hard to meet that ideal. Still, judges are people. You work as a lawyer for a decade or so arguing the law means what your client wants it to mean and then you become a judge and are immediately possessed of Solomonic restraint? Probably not.