BREAKING: Ninth Circuit Makes Hawaii a Shall-Issue State

courtesy marketplaceweddings.com

The Peruta dominos continue to fall. In an earlier decision in Baker v Kealoha, a District Court refused to rule in favor of the plaintiff, Christopher Baker. Baker had moved for an injunction against various Hawaii state agencies that had denied him a carry license. As a Ninth Circuit panel summed up the District Court’s rationale, the District Court denied the motion because, “Baker was not likely to establish that Hawaii’s restrictions on carrying firearms in public were unconstitutional under the Second Amendment, and therefore, Baker was not likely to succeed on the merits.” But that was pre-Peruta . . .

Today, though, a Ninth Circuit panel has ruled that,

In light of our holding in Peruta, the district court made an error of law when it concluded that the Hawaii statues did not implicate protected Second Amendment activity. Accordingly, we vacate the district court’s decision denying Baker’s motion for a preliminary injunction and remand for further proceedings consistent with Peruta.

So while there are still some formalities involved, the Peruta decision that is transforming California appears likely to have the same effect on the Aloha State. Just another day in paradise.

[h/t Danny C.]

comments

  1. avatar Tom in Oregon says:

    Another victory!

    1. avatar Soccerchainsaw says:

      In a good, good way… not in a MDA way…

    2. avatar Roscoe says:

      The decision bodes well.
      Let’s see if Peruta withstands pending challenges before we celebrate too much.

      1. avatar Daniel Silverman says:

        Yes Peruta could still be challenged, but this is great news none the less. It shows that the prevailing attitude of the court is that Peruta is in fact law and are treating it as precedent. Every case that goes our way makes the case for it to stick even better. Think of it like a whole lot of duct tape to keep the law right where it is.

        1. avatar Roscoe says:

          Yes, the steady favorable momentum with decisions on these subsequent cases is what inspires confidence that it’s too late for Harris and her recalcitrant sheriffs pose.

        2. avatar Roscoe says:

          And I bet if Peruta does ultimately end up being appealed to the USSC as currently decided, the court either will not hear it, or if they should grant a writ of certiorari, they confirm the 9th Circuit’s current decision thus clearing conflicting Circuit Court decisions.

          Wishful thinking, maybe; but that’s how I see it as this point despite the Courts reluctance to forge new precedent.

    3. avatar Daniel Silverman says:

      Knock, Knock… It’s the Devil. He wants a sweater because hell just froze over!!

    4. avatar Wendy says:

      Same 3-judge panel as in Peruta. Speaking of Peruta, the deadline for briefs on the State’s and Brady’s motions to intervene is next week, the 26th I believe.

      1. avatar Daniel Silverman says:

        Wendy can you check on that. It would be good to know. I can poke around and ask.

    5. avatar Nate O says:

      Now if someone would sue in US District Court for the Northern District of NY and the US DIstrict Court for the District of New Jersey and get this applied to the 2nd and 3rd Circuit court of appeals and we’ll be cooking with grease!

  2. avatar mlopilato says:

    So, what states are left?

    1. avatar James R says:

      NJ for one. Carrying is basically banned there. I moved out last year 🙂

      1. avatar Mr. Pierogie says:

        Mark my words, NJ will be the last state to issue CCW permits, if at all. And that’s a huge ‘if’. Like I said before, even if the Supremes overturn the current ‘justifiable need’ requirement, NJ will scramble to circumvent the ruling by enacting new, equally impossible to meet standards. The % of population who own guns in NJ is small, not enough people to fight back. And certainly no judges or sheriffs who support CCW. And now the 10 round mag cap limit is on the horizon…

    2. avatar Steve in MD says:

      Maryland, the so-called “Free State.”

      1. avatar Orioles301 says:

        I always said if I could carry legally, I’d move back to Baltimore! But I don’t think I’m leaving Carroll county ever, even with carry. Here’s to O’Malley’s blood pressure going up with this news…..

        1. avatar Steve in MD says:

          He’ll raise our taxes to fight it out in the courts.

          I think we may have better odds of breaking off from the rest of MD, then getting them to let us carry.

    3. avatar Gene says:

      I don’t know. We need a scorecard to keep up. Excellent news!

    4. avatar Another Robert says:

      Wait a second–this ruling has only to do with a preliminary injunction request in a district court case that hasn’t been decided on the merits yet. In fact, I’m not even seeing that the 9th is requiring that Baker’s request for an injunction pending the outcome of the actual case necessarily has to be granted. this celebration is a bit premature, I think.

      1. avatar Mark N. says:

        Not so sure about that–the trial court is required to reconsider in light of Peruta, which holds that a heightened requirement of good cause, beyond self-defense is unconstitutional. Which means that Hawaii’s “may issue” in law and “no issue” in practice system is unconstitutional, and the preliminary injunction should not have been denied.

        1. avatar Another Robert says:

          All the DC has to reconsider is the guy’s request for a preliminary injunction. And the 9th isn’t even saying the PI must be granted. The underlying case has not even gone to trial yet. Unless Hawaii’s laws and practices are identical to Cal’s , Peruta does not predict how the underlying case and subsequent appeals will turn out. Requests for preliminary injunctive relief implicate significantly different standards from those applied to the case on the merits. And appeals implicate yet another set of standards. Folks hereabouts are starting the party way too soon.

      2. avatar dwb says:

        Gotta love those triple double preliminary negatives. The key is whether the en banc review happens, or not. If Peruta is upheld, either by en banc or by SCT, then the trial court mostly has no choice.

  3. avatar cubby123 says:

    Better than sex…..ahh almost!

    1. avatar Roscoe says:

      It is fitting to see the anti-gun restrictions effectively curtailed in CA (by the 9th Circuit no less) where so much of the anti-gun momentum started. Let’s hope the well-reasoned Peruta decision withstands the coming challenges by the antis.

  4. avatar cubby123 says:

    Marin County,Ca, Sherriff Still denying CCW based ‘good cause’ BS. Somebody slap that guy!

    1. avatar Mark N. says:

      The Marin County Sheriff also joined an amicus brief by LCAV in favor of en banc review. He will not change his mind until Peruta is final and all appeals are exhausted. And he is not the only one.

      Richards v. Prieto, dealing with the Yuba County Sheriff, followed Peruta. That Sheriff has already filed an application for en banc review. There are two other cases pending challenging “good cause” as to the LAPD and LASO–but both are stayed and have not been argued. I would assume that those cases will also follow Peruta (if it is not reversed) and that the County Sheriff and the LA Sheriff of Police will also seek further review. Thus, even if Kamala Harris’ motion to intervene is denied, there are other opportunities for en banc and/or cert review to SCOTUS.

      I assume, though I haven’t heard, that San Francisco, Alameda, and other surrounding counties will also refuse to accept self defense as good cause until forced to do so, either by an affirmance/finality of Peruta or by a separate lawsuit.

      1. avatar Meridia says:

        True, but the fact that the 9th is holding its ground on the ruling is interesting to say the least.

        The more cases that the 9th holds it’s ground on on this idea(reinforcing the Peruta ruling) the less likely en banc will overturn it and the less SCOTUS is going to want to deal with it.

        If the 9th holds, then SCOTUS won’t be stuck dealing with it until another circuit rules in accordance or against that ruling, and the loser takes it to court because the split’s getting wider than the Grand Canyon.

        1. avatar Mark N. says:

          No, not really. Peruta, Richards and Baker were all argued the same day to the same panel, and it is still a 2-1 split on that panel. No other judges in the Circuit have weighed in on one of these cases–the other cases are being held pending the final determination of Peruta, whether that is en banc or a petition for cert. And there are a bunch of bizarre permutations depending on what happens with AG Harris’ motion to intervene. It is theoretically possible for her motion to be denied, but for a justice of the court to request en banc. If en banc is granted and the panel decision is affirmed, there is no one with standing to request cert. On the other hand, if en banc is granted and the panel decision is reversed, plaintiffs will undoubtedly seek cert, but whether it will be granted is questionable–since a reversal of the panel decision would eliminate the circuit split that currently exists.

          So hold your breath. We have no way of knowing how this will turn out.

  5. avatar Another Robert says:

    Well, not exactly–but the district court will at least have to entertain Baker’s request for a preliminary injunction while his case wends its way thru the courts. Probably should be more careful with those headlines.

  6. avatar uncommon_sense says:

    I can only imagine how many heads are exploding in Hawaii right now.

    1. avatar crndl says:

      not mine, as a resident this is great news & could make this place the paradise everybody says it is 🙂

  7. avatar Gregolas says:

    Huzzah! Now we can carry right along with Thomas Magnum!

    1. avatar John in Ohio says:

      And TC, Oriville, & Higgins.

  8. avatar cubby123 says:

    Let’s keep exploading the ones in California,Maybe we could watch it on pay per view,!

  9. avatar whatever says:

    Nice, but I’m hesitant to declare victory until any law-abiding citizen can walk into the Marin County, LA and Honolulu sheriff’s offices and get a permit without even a whiff of hassle.

    1. avatar John in Ohio says:

      Real victory is when no license is required. 😉

  10. avatar Marine 03 says:

    Outstanding! I didn’t see this happening so soon.

  11. avatar Dracon1201 says:

    May I just take this moment to say… OOOOOHHH!!! GET OWNED!!!

  12. avatar Dave357 says:

    This ruling, such as it is, hangs on Peruta surviving.

    A bit too early for champaign, unless an expert can tell us that releasing this ruling so close to the March 26th deadline for filings in the motions to intervene in Peruta is somehow a strong hint that there will be no en banc in Peruta. Somehow, I doubt it, but it would be nice to be wrong.

  13. avatar Alpo says:

    Those of us in the Citizen Disarmament Republic of New Jersey have been watching these 9th Circuit cases with particular interest.

    With the 2nd, 3rd and 4th Districts upholding versions of “good cause” restrictions, these 9th Circuit decisions create just the kind of circuit split that mght prompt SCOTUS to grant certiorari to our own concealed carry/justifiable need case, Drake v. Jerejian (http://www.washingtontimes.com/news/2014/feb/26/miller-pressure-for-supreme-court-to-take-up-drake/?page=all).

    Should SCOTUS take that case and rule in our favor, the entire country will become shall issue.

    1. avatar LC Judas says:

      This. This right here is why news like this post matters. If they tooth and nail this then they will fall very, very short on the long run.

  14. avatar Bobby N says:

    Good news indeed !!

  15. avatar Jim Jones says:

    So the deadlines have all passed for the judges to rehear Peruta en banc, but the Court has not ruled on Harris’ motion, correct? Does anyone remember what that deadline is?

    1. avatar Mark N. says:

      No. There is a lot of confusion about the timelines, but as it now stands, it appears the time for a judge to request en banc does not run out until three weeks after the court rules on Harris’ motion to intervene. If the motion is granted, then she has already filed her request for rehearing en banc, and the timeline as to any judge is moot. March 26 is simply a filing deadline for the opposition to Harris’ motion to intervene–when that motion will be argued (if oral argument is permitted) and when the panel will rule on the motion is anyone’s guess.

  16. avatar Pascal says:

    I consider today as triple win — Gun Owners of Hawaii are closer to getting their right back, Fred Phelps, founder of Westboro Baptist Church died today and today is the first day of spring which means many outdoor ranges are open this weekend — I cherish days like this!

    1. avatar Rick says:

      Yes, indeedy.

    2. avatar John in Ohio says:

      In the end, will they be content with merely a privilege or will they actually continue to fight as vehemently for the actual right to keep and bear arms?

  17. avatar William Burke says:

    History is turning in our favor! Take heart and be of good cheer.

  18. avatar Accur81 says:

    I hope to be armed the next time I stay in Hawaii. The last time I went I only carried knives due to their ridiculous gun laws.

    1. avatar DanRRZ says:

      +1. Week there was the longest time I’ve spent sans gun since I started carrying. I did not like it.

    2. avatar NYC2AZ says:

      Do the local PD’s not adhere to the LEOSA of ’04?

  19. avatar Mike Crognale says:

    So, you guys in NJ, what happened in the magazine ban hearings today? Any news?

  20. avatar Hal says:

    Okay… so when does this happen in Guam and the Virgin Islands?

  21. avatar Samson says:

    I am NJ born and bred, 33 years now. I have a very nice gun collection but have of course made many sacrifices in both gun type, specific model, features, and magazines because of living in NJ. And , oh you know, no carry whatsoever. (And many people who claim to have permits in NJ are actually lying, the amount is so miniscule small because you need to go before a judge, (after your local Chief LEO signs off, no small feat) and convince the judge of your urgent need to carry- THEN IT IS RECORDED, so if anything happens, it is brought up like, “Judge Smith, you said John Doe had an urgent need because of his -yada-yada-yada… And then he robbed and murdered….” so you just do not get one unless you have SIGNIFICANT political connections or are an armed guard as a career, and then your permit spells out hours and days you can carry.) … and after all this BS, finally me and my family said F It! We’re gettin out of here, on our way to FL in FEW WEEKS BABY!!!. NJ can go suck a lemon!

  22. avatar Armchair Command'oh says:

    Our victory: The overturning of a restrictive, unconstitutional ban on concealed carry in the state of Hawaii.

    Their victory: Slide Fire’s lease of one particular billboard somewhere in Chicago expires.

    1. avatar John in Ohio says:

      If it becomes a licensed privilege only then the right to keep and bear arms, concealed or openly, will still be infringed. 😉

      1. avatar Salty Bear says:

        Yea, we get that, John.

        This is still great news for the cause of freedom. It’s a step in the right direction. We know we live in a slave state, and it’s humiliating to have to beg for our rights.

        Thanks for reminding us.

        1. avatar John in Ohio says:

          Yes, it is outstanding news, IMHO too. I’m just the caution flag for those who may need one. Everyone else please realize that I too am glad that these decisions are going this way so that people at least have the possibility of being armed.

  23. Guam is under the 9th Circuit, so it could happen anytime. The Virgin Islands are not.

  24. avatar Paul53, says:

    Another one bites the dust!

  25. avatar great unknown says:

    Same judges on this panel as on Peruta. So, it’s consistent, allows some optimism, but not dispositive.

  26. avatar Steven says:

    Did the ninth judges all have strokes at the same time? I applaud the ruling but the about face is quite odd.

    1. avatar Mark N. says:

      So far, it is only two justices, plus the Presiding Justice, Kosinski, who is a 2A supporter. Out of a LOT of justices. I think there are 23 or 24 active justices, plus a number of “senior” (retired) justices who hear cases. Justice Thomas, the dissenter in all three cases, is obviously on the other side.

      1. avatar Dave357 says:

        Given these numbers, is there any reason for hope?

  27. avatar Dirk Diggler says:

    Hell yeah? Great way to start my vacation. Now, Shannon owes me a drink. Why? ‘Cause I say so dammit.

  28. avatar Mercutio says:

    Been in HI 14 years – I’ll believe it when I see some guy carrying concealed in flipflops and shorts….

    1. avatar Kent says:

      How can you see a guy carrying in flip-flops and shorts if it’s concealed? 😀 I am a great lover of Hawaiian shirts when I go places where concealed carry is required. My wife doesn’t much like them except as a way to keep track of me in crowds.

  29. avatar Jay In Florida says:

    Although I no longer live in the Minor Slave state of NY.
    Maybe NYC is next??

  30. avatar Sammy says:

    A pro 2nd Ninth Circuit? The world is defiantly upa side down.

    1. avatar John in Ohio says:

      Admittedly, I haven’t read these decisions all the way through. Are they really pro-2A or are they more pro-government privilege? (This is a serious question, BTW.) If the latter is the case then what government wouldn’t rather its people trade a right for a privilege? That’s a heck of a good deal for government; for the individual… not so much.

  31. avatar T says:

    Now I was not expecting this to happen. If anything i’m glad for the citizens of that state. I think the people of Hawaii need to follow up this victory by repealing alot of those laws they have for firearms.

  32. avatar Tincan53 says:

    Oh the gun-control advocates have got to be pulling out their hair. This fun watching all their efforts go up in smoke. Great day for America.

  33. avatar Tommycat says:

    It’s weird to see the 9th Circus actually in favor of gun rights… And with the 9th Circus being the most overturned in the nation, a little troubling.

    1. avatar Mark N. says:

      The “most overturned” is misleading. First, it has the largest volume of cases, so just on odds, it is more likely to have cases overturned. Second, much of what it considers is at the “leading edge,” an area in which many might differ. And third, there really isn’t that high of a percentage of reversals–it is juswt slightly higher than other circuits. According to West, a legal research provider:

      Each year, Tom Goldstein, co-founder of the widely read SCOTUSblog, compiles and releases Supreme Court statistics. Last month, Mr. Goldstein released the final “Stat Pack” for the Supreme Court’s most recent October 2010 term with these results: The Court reversed or vacated seventy-nine percent of the decisions it reviewed. Circuits with the highest percentage of reversals included the Sixth Circuit (eighty-three percent) and the Fifth Circuit (eighty percent). The Ninth Circuit came in third at seventy-nine percent. There is nothing remarkable about these figures. SCOTUS scorecards demonstrate that over time the Supreme Court will typically reverse or remand seventy to seventy-five percent of the cases it hears. Most (if not nearly all) circuits are reversed at levels well above the fifty-percent mark year after year. – See more at: http://blog.legalsolutions.thomsonreuters.com/legal-research/should-the-ninth-circuit-be-judged-by-reversal-rates/#sthash.4IUnWcvn.dpuf

    2. avatar John in Ohio says:

      Are these really in favor of rights or actually more supportive of government controlled privilege?

  34. avatar GS650G says:

    It’s about time Hawaii was no different than other states. They get away with a lot because it’s an island, but the Constitution still applies to them too

  35. avatar Fenix Down says:

    The magazine limitation passed Senate and it’s on it’s way to Chris Christie’s desk.

    He’s the only one who can save us now from these idiots.

    If he signs it into law, he can kiss any vote he might have had from me goodbye.

  36. avatar brian says:

    If Peruta survives, I wonder if CA will recognize/reciprocate out-of-state CCW’s

  37. avatar Erik R says:

    I know Christopher Baker, he taught me handgun safety, a requirement in Hawaii to purchase a handgun. I am grateful he moved to Hawaii and began this lawsuit. You can find him on facebook under Hawaii Defense Foundation.

  38. avatar John in Ohio says:

    Perhaps I’m missing something in the rulings lately as I haven’t read them all in their respective fullness. But, once the privilege of licensed carry is established, will the POTG continue to work just as hard to re-establish the individual right to keep and bear arms; like open carry or true constitutional carry? Or, will the POTG sit back, content with a privilege handed down and subject to the whims of the State? Will we accept the crumbs of tyranny or will we demand the Liberties and birthrights of a free people?

    I hold sincere and grave concerns that the the People are becoming distracted with the privilege of licensed carry and will be pacified. Is this an overall ploy of government? How many of us accept and even support government infringement today? How many more will do the same after they are content with government permission? How important will their actual right be to them?

  39. avatar theBuckWheat says:

    We now have studies in a number of states that document that as a class, concealed carry permitees are among the most peaceful and law abiding groups in society. Two cites:

    The rate that concealed carry permit holders are now losing their permits for gun related violations

    Between, October 1, 1987, and November 30, 2008, Florida issued permits to 1,439,446 people, many of whom have had their permits renewed multiple times. Only 166 had their permits revoked for any type of firearms related violation – about 0.01 percent. I was just looking up the new numbers. Updating those numbers to January 31, 2010, Florida has now issued permits to 1,704,624 people. The number who have had their permits revoked has risen to just 167. In 14 months, just one person with a Florida permit has lost his permit for a fire arms related violation. There are currently 692,621 valid permits. That is a revocation rate of 0.00014 percent.

    http://johnrlott.blogspot.com/2010/02/rate-that-concealed-carry-permit.html

    In North Carolina, one of only a handful of states that reveals the identities of permit holders, 200 of the 240,000 concealed carriers (.08 percent) committed felonies of all types, including eight shooting deaths, in the five-year period ending in 2011. This compares with about 2.5 percent of voting-age Americans who have a felony rap sheet, according to The Sentencing Project.

    http://johnrlott.blogspot.com/2014/02/the-big-change-in-views-on-concealed.html

  40. avatar Hannibal says:

    Very pleasantly surprising how fast these cases are going. It looks like Heller is doing what it needs to…

  41. avatar Gary says:

    I’ll actually believe it once I have an actual permit in my hand and my gun in my IWB holster (provided the state doesn’t add $500 per year for the permit).

  42. avatar Tim says:

    Hi Everyone,

    Does anyone have a Hawaii status update? I’ve been here 25 years, and have always wanted to carry.

    Best,

    Tim

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