Ninth Circuit Three-Judge Panel Upholds Right To Open Carry Firearms

Ninth Circuit Open Carry Guns Second Amendment

The right to carry a firearm for law-abiding citizens barely exists in Hawaii. A so-called may-issue state, the Pacific paradise hasn’t issued a permit to carry this century. As far as the fiftieth state is concerned, Americans only have a right to keep and bear arms in their own homes.

That violation of his Second Amendment rights (see District of Columbia v Heller) was the basis for George Young’s suit against the state. Yesterday, a three-judge panel of the Ninth Circuit Court of Appeals in a two-to-one decision, agreed with Mr. Young.

A federal appeals court ruled on Tuesday that the U.S. Constitution’s Second Amendment protects a right to openly carry a gun in public for self-defense, rejecting a claim by Hawaii officials that the right only applies to guns kept at home. …

Two of the three 9th Circuit judges voted to reverse a decision by the U.S. District Court in Hawaii that state officials did not infringe on the rights of George Young, the plaintiff, in twice denying him a permit to carry a gun outside.

“We do not take lightly the problem of gun violence,” Judge Diarmuid O’Scannlain wrote in Tuesday’s ruling. “But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.”

You can read the full ruling here. The majority opinion wasn’t friendly to concealed carry, but here’s the main takeaway:

The panel acknowledged that while the concealed carry of firearms categorically falls outside Second Amendment protection, 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. 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.

In determining the appropriate level of scrutiny to apply to section 134-9, the panel first held that the right to carry a firearm openly for self-defense falls within the core of the Second Amendment. The panel stated that restricting open carry to those whose job entails protecting life or property necessarily restricts open carry to a small and insulated subset of law-abiding citizens. The panel reasoned that the typical, law-abiding citizen in the State of Hawaii was entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense. The panel concluded that Hawaii’s limitation on the open carry of firearms to those “engaged in the protection of life and property” violated the core of the Second Amendment and was void under any level of scrutiny.

The State of Hawaii, much the same as California, now has a decision to make. They can appeal for an en banc review of the decision a la Peruta and risk a possible further appeal to a Supreme Court that’s expected to include a Justice Kavanaugh. Or, in order to avoid another potentially precedent-setting Supreme Court ruling, Hawaii could decide to bite the bullet and, like DC, be dragged kicking and screaming into issuing citizens (open) carry permits. Watch this space.

 

comments

  1. avatar henry bowman says:

    Stopping it from going national as any failure at this junction will result in SCOTUS will over ride their ass hattery…Scaring the left into complaisance if not on a smaller scale.

  2. avatar Hasaf says:

    This doesn’t have much impact on the states where I live and work. However, I am interested in this and how it will impact visiting California.

    I used to have a California permit; but after moving out of state, while I have a permit in my state of residence, I no longer have my California permit. I would like visiting my friends and family there to be lass of a hassle with Ca’s firearms and ammunition storage requirements..

    1. avatar uncommon_sense says:

      Hasaf,

      The federal Ninth Circuit Court of Appeals’ jurisdiction includes California. This decision should therefore be binding on California as far as I can tell. Assuming that is correct, grab a chair, your favorite beverage, and some popcorn and watch the spectacle that develops in California.

      1. avatar Geoff "Mess with the Bull, get the Horns" PR says:

        I’d say offer them a compromise –

        Since the easily triggered Progressive ‘Snowflakes’ might get their collective knickers in a snit, offer them concealed carry.

        But what a beautiful position to force them into : The “What you can’t see can’t hurt you” of concealed carry, or the false choice of being ‘safe’ knowing exactly who the gun carriers are in public?

        I’ll bet they choose to stick their heads in the sand of “What you can’t see can’t hurt you”.

        *Snicker* 😉

        This right here, POTG, is what *Winning* looks like…

        1. avatar Mark N. says:

          For now, any way. There is a long way to go. We will have to see what another panel does with the California based Nichols appeal which, as I recall, is not an appeal from a final judgment but simply an appeal from the denial of an application for a temporary restraining order, and thus, just as the Hawai’i case has not gone to trial, there is a long way to go in that case before the dust finally settles. Wake me up in a decade or so.

  3. A Special Dispensation was made in Hawai’i’s case to become a Territory of the United States in 1898, which gave the Kingdom of Hawai’i a waiver in setting up Territorial Governance, including Firearms Regulations. Which the Government of the United States Granted. The Government of the United States wanted Hawai’i for it’s Strategic Location in the Pacific and left the Governance to the Kingdom of Hawai’i.

    1. avatar Phil Wilson says:

      I don’t think that would apply once Hawaii become a state rather than a territory, would it?

      1. Really! And WHO in the Federal Government is Challenging It?

        1. avatar Jackass Jim says:

          The United States Court of Appeals for the Ninth Circuit just did.

          Whassamattau – are you deaf, dumb AND blind?

        2. Let’s see if it actually get’s implemented! Keep in mind that Hawai’i was a Territory from 1898 to 1959, which leads me to believe a similar argument came up within the 61-years of being a Territory which went nowhere.

        3. avatar LarryinTX says:

          WTF would make you think so? The NFA of 1934 has been to the SC once, concerning a sawed-off shotgun ($5 tax involved), wherein only the govt side was represented, and I think that was 1939. So near 80 years have gone by with a clearly unconstitutional law uncontested. Never any attention to rifles, machine guns, SBRs, whatever.

        4. @ LarryinTX.

          And was it Implemented in Hawai’i? If not, Why Not…

      2. avatar Nathan Fellows says:

        Whether it would apply to Hawaii as a state or not is moot, the US government wouldn’t be permitted to grant them the ability to hold slaves or outlaw speech or deny people the right to an attorney, therefore the US Government can’t extend the ability to deny exercise of the Second Amendment any more than any of the other parts of the Constitution to Hawaii.

        Not that I know anything about the dispensation in question, but logically… Hawaii can screw.

    2. avatar Danny Smith says:

      The constitution doesn’t say anything about exempting previous territories. Congress can not just pass a law to override the constitution, the constitution would have to be amended for Hawaii to have any extra privilege over the 2nd amendment. Ur argument is trash.

      1. The US Constitution “Doesn’t” say a lot of things, and yet still manages to piss people off in the writings!

      2. avatar LarryinTX says:

        Poo on territories, TX was an independent country when it came to become a state. Obviously, TX should be able to make all of its own laws disregarding the constitution, and any Texan should be able to override SCOTUS rulings because of that. Don’t be silly.

      3. avatar A says:

        Constitutionality falls to the courts weither you like it or not.

        1. avatar Benjamin McLeod says:

          Each of the three branches of government is individually obligated to follow the Constitution, not to ignore the Constitution unless the judicial branch says they are wrong. The Congress has the most power because they can impeach and remove from office the other two. The problem we have is that congress and courts and sometimes the executive are half full of people who want to ignore the Constitution, and half the people in the country want them to do that.

  4. avatar Phil Wilson says:

    “…was void under any level of scrutiny.”

    I don’t see any other way to read it. Unless leftists are willing to argue that you don’t have a right to free speech unless you get paid to write news. Though, some leftists HAVE in fact made that argument in essence, so…

    Anyway, I can’t wait to see the hysteria in LA, SF, etc. if they are forced into shall issue OC permits. Expect local officials to still refuse to issue them in defiance of the ruling anyway until each one is individually dragged through the court process, with every attempt to use tax payer dollars to bankrupt as many plaintiffs as possible. And then, once they are forced to issue permits, cops in LA, SF, etc. should be expected to harass legal carriers and lock them up on made-up charges.

    1. avatar California Richard says:

      Yep…. California and the snowflake cities will devise some half baked scheme to maintain their liberal utopia status quo…. Hawaii being an island made it eisier to maintain the entire state in that status quo for decades. But L.A. and S.F. are islands of sorts and will be tough nuts to crack. Hawaii was a good stepping stone though.

    2. avatar Desert Ranger Tycho says:

      Yup! The fine folks in the 2a community here in the Aloha State are stoked. Can’t wait to go down an apply to the Honolulu Police Department and apply…with a copy of the decision attached!

      1. avatar HulaBoola in Honolulu says:

        Plus 1000!!!

  5. avatar Michael says:

    Too little, too late & too bad. We had a nice country going here until it got barginned and compromised out from under us. I’m glad I’ve lived to see the great leveling that’s coming.

  6. avatar Newb says:

    It’s just funny because I would be more comfortable with concealed carry than open carry.

    1. avatar Hannibal says:

      What’s even more funny is that I bet a lot of anti-gun Hawaiians would prefer that too. So much so that this might spur a conceal carry permit that is actually attainable.

      1. avatar Phil Wilson says:

        That’s a good point. First and foremost, they don’t want people getting used to the idea that it’s normal for anyone other than an agent of the state to carry a weapon, or start to actually think about the claims on which the antis base their arguments.

    2. avatar LarryinTX says:

      Seems like there was a ruling some years back that it was OK to outlaw CC, and it was OK to outlaw OC, but outlawing BOTH was a violation of 2A. And it is still interesting that some areas of the US freak out at open carry, while other areas demonize concealed carry. You’d think these people would figure out that such fears are irrational, particularly since all the predicted disasters never actually happen.

      1. avatar Benjamin McLeod says:

        We have a problem when only open carry, or only concealed carry, is allowed.
        If only open carry is allowed, then if you put on a coat in winter it is concealed and illegal.
        If only concealed carry is allowed, and you reach for something on a high shelf in the grocery store and someone sees your gun, then that is open carry and illegal.

  7. avatar Danny L Griffin says:

    This will probably go en banc, but here’s an point-by-point explanation of the ruling.

    https://twitter.com/JoshMBlackman/status/1021803353985179648

    1. avatar Danny L Griffin says:

      Forgot to follow.

    2. avatar DDay says:

      One interesting thing which probably doesn’t happen a lot in the very liberal 9th where there are A LOT of clinton judges and quite a few obama. This panel was Ikuta, O’Scannlain and clifton, all 3 judges were G W Bush nominees.

      The one who really really pushed for that BS en banc in Peruta when San Diego county had decided not to appeal but the en banc allowed it, was the chief judge of the 9th, sidney thomas an obama appointee. thomas was on the losing side of peruta in the 3 judge panel and was really butt hurt and he engineered that BS opening of en banc.

      It will be interesting to see what thomas does her because he’s a real POS liberal. He was considered for SCOTUS by obama in 2010.

    3. avatar million says:

      7/ J. O’Scannlain mic drop: “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.'”

      1. avatar LarryinTX says:

        I like this guy.

      2. avatar Geoff "Mess with the Bull, get the Horns" PR says:

        # 8 was just as good –

        “The dissent objects to citing antebellum cases because “they come from a time, place, and culture where slavery, honor, violence, and the public carrying of weapons were intertwined.” J. O’Scannlain responds to gun control laws were designed to subordinate the rights of slaves.”

        Yeah, he went *there*…

        *snicker* 😉

        1. avatar Cory C. says:

          I don’t know how accurate it is to say that anti-gunners shy away from those matters that involve racial implications or that harken back to a racist era, generally, given that they constantly invoke Cruikshank. That decision was manifestly racist, yet it supports their agenda. They really like this little gem, “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.” They made liberal use of it in arguing for the wrong side of McDonald v. Chicago.

        2. avatar Benjamin McLeod says:

          Cory C – That is indeed all the 2nd Amendment says. The “Right of the People” (used several times in the Constitution) goes back to the Declaration of Independence statement that the Creator has given people “certain unalienable Rights”, which we hold regardless of law. However, the 2nd Amendment restrictions against the Federal government are applied to State governments as well by the 14th Amendment – “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”

  8. avatar dlj95118 says:

    …has Hell frozen over?

    1. avatar Hannibal says:

      The west coast has been handing down better verdicts than the east coast (think NY, MD, etc) for some time now. Go figure.

  9. avatar former water walker says:

    Let me know when things REALLY change for the better…

    1. avatar DDay says:

      The will affect CA. CA has a defacto ban on conceal carry permit issuing in coastal counties, etc. and they banned open carry statewide. If this is not appealed, both HI and CA have to either issue conceal carry permits or allow open carry. If it’s appealed en banc, SCOTUS with Kavanaugh gets to take the case and rule on open and conceal carry.

      1. avatar pwrserge says:

        I’m actually hoping the libertards will be stupid enough to take this to the SCotUS for us… With Trump probably picking yet another justice before it makes it there…

        Say what you want about Trump. By loading the judiciary with originalists, he has done more for the 2nd amendment than any president in living memory.

      2. avatar Mark N. says:

        The state-wide ban applies only in incorporated cities and towns, open carry is still legal outside of towns. But not in cars. So one can carry when hunting, fishing, hiking and camping in state and national parks and forests. Where (for the most part but not entirely) it is not terribly needed.

  10. avatar Nanashi says:

    Good, but Kavanaugh’s history of going out of his way to state not all guns are protected still has me concerned.

    1. avatar LarryinTX says:

      That leaves a lot of room. If he approves only 2 or 3 different guns for all Americans to choose from to fulfill a requirement that every adult must carry a firearm at all times, well, that wouldn’t be so bad.

      1. avatar Hannibal says:

        I would be more worried in terms of “assault weapon” bans.

        1. avatar Geoff "Mess with the Bull, get the Horns" PR says:

          “I would be more worried in terms of “assault weapon” bans.”

          He has a history on that very subject –

          “Walker cited, as an example, Kavanaugh’s support for the right to own a semiautomatic rifle under the 2nd Amendment. In 2008, the Supreme Court struck down a District of Columbia ordinance that prohibited residents from having a handgun at home. The same plaintiff later claimed the right to possess a semiautomatic weapon, but lost by a 2-1 vote in the D.C. Circuit, Walker noted. Kavanaugh wrote a lengthy dissent arguing that the 2nd Amendment included the right to have such a weapon.”

          http://www.latimes.com/politics/la-na-pol-court-kavanaugh-barrett-20180628-story.html

          He argued banning a class of weapons was the same as banning an entire category of speech…

    2. avatar pwrserge says:

      “Banning an entire category of weapons is tantamount to banning entire categories of speech.”

      I don’t see how that makes Kavenaugh flexible. That simple statement can go so far at to overturn the 1984 MG registry closure. Sure, the NFA may not go down quite yet, but I’ll settle for being able to Form 1 me a SAW.

  11. avatar Adam says:

    For people in May Issue states, this could be a huge win. While I prefer concealed carry, I would take the option to do any carry as opposed to no carry.

    Also, an open carry SCOTUS case would be a great test to see how the new Kavanaugh court handles second amendment issues. If they go pro gun we keep trying to feed them more cases and if they go anti-gun we lose a small battle and know the deck still isn’t in our favor. If that is the case, we make sure we hit hard in 2020 to ensure Republicans maintain control and get us a 7-2 SCOTUS.

    1. avatar uncommon_sense says:

      Adam,

      This ruling should have another profound effect: it should prohibit states from banning accessible firearms in our vehicles.

      That is a pretty big deal since many legal open carry states prohibit loaded accessible handguns in vehicles without a concealed carry license — as well as loaded accessible long guns in vehicles with or without a concealed carry license.

      For these reasons, I suspect the Ninth Circuit will let this ruling stand rather than risk the U.S. Supreme Court applying this ruling to all 50 states and U.S. territories.

      1. avatar Mark N. says:

        Hawai’i gets first bite at the apple in seeking en banc. And if it doesn’t, well then the Ninth can decide on its own to grant it. In Peruta, the sheriff of San Diego didn’t seek en banc,m but the State, which wasn’t even a party at the time the case was decided, pushed for it. And as noted abv e, the dissenting judge from the panel, Judge Thomas, became the supervising judge of the court, and he was likely the one asking for an en banc review, sine it was he who wrote the en banc decision.

  12. avatar Mark N. says:

    The decision is essentially meaningless for several reasons: 1) Hawai’i has the option of enacting an open carry regime indistinguishable to its concealed carry regime (meaning no license will be issued), and which will keep the forces of freedom at bay for another five or six years until another case is brought to try to establish that the regime fails strict scrutiny; or 2) it may choose to go en banc, to a court that has an historical antipathy to all things gun and is thus likely to reverse Judge O’Scannlain (who by the way was the judge who wrote the original Peruta opinion before he was overruled by the en banc panel); and 3) open carry is subject to the Gun Free School Zone Act, an act that for all practical purposes makes it impossible to carry outside one’s property in any urban area where it is impossible to avoid the 1000′ exclusionary zone. This last is the main problem I have had with Mr. Nichols’ case, also pending in the Ninth, which expressly does NOT challenge the GFSZA.

    1. avatar Ed Johanson says:

      Incorrect…..if they tried to put together such regime and didn’t issue license it would be no different from what Washington DC did and why Heller was decided the way it was decided. This court basically says people have a RIGHT to open carry. Putting in place a highly restrictive scheme to deny that right would be immediately overturned.

      Re Open carry and Gun Free Zone Act. First…that’s a FEDERAL crime…local or state police can’t arrest on that. And I don’t think anyone has ever been arrested for it. Even if they were…since the SC ruled that it was unconstitutional and the Congress ignored it and passed it again no prosecutor would charge someone with it as it would instantly be thrown out.

      The GFSZA doesn’t NEED TO BE CHALLENGED…it has already been ruled unconstitutional.

      1. avatar pwrserge says:

        Interesting fact. School zone bans have not been doing too well in court as of late. The Illinois ban got struck down just this year.

      2. avatar Mark N. says:

        Sorrry Ed, but only the FIRST federal GFSZA was found to be unconstitutional. Congress tweaked and repassed the law, which is very much still in effect. Second, MOST if not all states have state law analogues that mimic or copy the federal law.Only one state’s law, to the extent of the 1000′ exclusion zone, has been struck down, in a circuit with a very much positive attitude towards the Second. I doubt we will obtain a similar result in any of the following circuits: 1,2, D.C., 3, 4 or 9. Further, as this opinion states, even open carry may be subject to regulation, and whenever someone says “subject to regulation” (as Scalia did in Heller), the anti states steal the ball and run with it a far as they can.

  13. avatar Pete says:

    Look for Hawaii to allow open carry permits, as long as the applicant pays a $700 processing fee and then attends the mandatory training class, offered the last thursday of each month in a locked room on a remote island.

    1. avatar Hannibal says:

      This is the method that has been working because the courts seem loathe to get into the question of what constitutes reasonable fees to exercise a constitutional right. The answer, of course, should be “none.” If the state wants to insist on training, certification, or other hurdles it should be at its own cost, paid by the general treasury from taxpayer funds. Watch those needless requirements suddenly go away.

      1. avatar Toni says:

        i would suggest that this should apply to ALL forms of licensing/registration that the state wishes to mandate in particular on the individual and not just the right to keep and bear arms. it would cut the govt red tape to the bone in a heartbeat

  14. avatar Green Mtn. Boy says:

    “The panel acknowledged that while the concealed carry of firearms categorically falls outside Second Amendment protection, 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.”

    The 9 th. Circus is still wrong as would be the state of Hawaii, unless when they gained state hood and they were allowed to pick and choose the Amendments they agreed to.

    The 9 th. is wrong in their interpretation of the 2 nd.,Constitutional carry,open or concealed is the law of the land and under the 14 Hawaii and every other state has signed on to that.

    1. avatar Mark N. says:

      Right or wrong, that is the law as announced by the Ninth Circuity, and the Supreme Court declined the petition for certiorari, so the decision in Peruta finding there is no constitutional right to concealed carry is the “law of the land” in all states it covers. Now this is not to say that states cannot grant such rights, only that the
      US Constitution, according to the Ninth, doesn’t guarantee them. Piss and moan all you want, but get caught with a concealed firearm without a CCW in California and you will likely see the inside of a jail cell, your constitutional arguments dismissed by the trial court. (Actually, the crime is a “wobbler”, meaning it can be treated as a misdemeanor with a fine and a suspended sentence, or as a felony.)

      1. avatar pwrserge says:

        Actually, it’s only the “law of the land” in the 9th circuit. The 7th circuit ruled the exact opposite and their ruling still stands. Denying cert does not set national precedent.

        1. avatar Mark N. says:

          Actually, I said exactly that.
          But to put a finer point to it, the Ninth covers the following district courts:
          District of Alaska
          District of Arizona
          Central District of California
          Eastern District of California
          Northern District of California
          Southern District of California
          District of Hawaii
          District of Idaho
          District of Montana
          District of Nevada
          District of Oregon
          Eastern District of Washington
          Western District of Washington

          It also has appellate jurisdiction over the following territorial courts:

          District of Guam
          District of the Northern Mariana Islands

  15. avatar Shawn says:

    En Banc. Then overruled.

    1. avatar johnny go lightly says:

      Then SCOTUS.

      1. avatar trump is a sexual predator says:

        EN BANC and than you right wing gun huggers LOSE

        1. avatar New Continental Army says:

          Seems to me like another liberal snowflake is in panic mode again because they just keep losing.

        2. avatar Joe R. says:

          Yes Lib tears with a hint of commie, and a fruity whine, satan’s-sack finish.

          It’s gonna be a good year.

      2. avatar trump is a sexual predator says:

        stop perverting the 2nd amendment you gun nut

        the SC hasn’t taken a gun case in YEARS

        1. avatar New Continental Army says:

          Alright pal, time for the nurse to come get you off the computer and get you your meds. It’s almost bedtime.

        2. avatar Stereodude says:

          And when they start hearing them after the confirmation of Kavanaugh your side is going to get even more upset. 😀

        3. avatar pwrserge says:

          That was before we replaced Kennedy with a judge who has bothered to READ the CotUS.

        4. @ pwrserge.

          And just exactly is “Kavanaugh” going to do! He would be the Most Junior Member of the SCOTUS next to “Gorsuch”. With very little if any input as what the SCOTUS See’s and Does, and/or even Listen’s too…

        5. avatar Mark N. says:

          Hey UND(ies): every justice on the SCOTUS gets a vote, and all votes count exactly the same. It takes four of nine votes to grant a petition for certiorari. Any four. So the junior guy gets an equal say.
          He just has to serve all the other justices coffee at their weekly meetings.

        6. Approximately 40,000 Cases are Sent to the US Supreme Court every “F^cken Year”, yet only ~4,000 of those are actual Read and Ruled On by the SCOTUS. The rest is sent to Lower Federal Courts. It Chief Justices “Roberts” Court, NOT “Gorsuch’s” or “Kavanaugh’s” Court. Roberts and “HIS” Court Clerks can decide what is Looked At, Read and/or is Commented On. Both Gorsuch and Kavanaugh can make suggestions, but the bottom line is that there Only Suggestions that Roberts doesn’t have to listen too…

        7. avatar pwrserge says:

          You have no idea how granting cert actually works, don’t you?

        8. avatar frank speak says:

          do you seriously think that isn’t going to change soon?….the “gun cases” are coming unless the states choose to defer……..

  16. avatar KENNETH G MAIDEN says:

    Hope and pray it holds. Congrats to Freedom and Liberty.

  17. avatar Robert Mustain says:

    Hawaii is a bit of a unicorn in terms of gun crime. It is one of those states that is fairly heavy on crime, but lacks much gun crime at all.

    Part of that is because every gun in the state must be registered. Because the state is water-locked, criminals and gangs and cartels cannot easily transport illicit firearms to the state. Many transfer loopholes like gun shows and personal sales are eliminated or heavily restricted and still subject to registration. All in all, Hawaii’s gun laws have been superbly successful from the standpoint of preventing gun crime.

    But even though Hawaii’s violent crime rates are mostly lower than the rest of the nation, other crime – like rape – is much higher. Why should rapists worry if they see a woman walking and vulnerable? It is illegal for her to carry a gun. Thieves see something they like? Why not take it, the owners can’t prevent the theft with guns. Want to steal a car? DO IT! The owner can’t defend his property with a gun. These crimes are fairly high and mostly higher than the national average. Even burglary is not a worry for criminals because there is such a low incidence of gun ownership in the state that home owners are not well protected (in the opinion of the state prosecutor) by the presumption of intent to do harm by the intruders – never mind that your wife and daughters are MORE likely to be raped here than most of the rest of the US.

  18. avatar FedUp says:

    For those who were wondering, Richard R. Clifton is the one who doesn’t believe there is a right to bear arms in public.

    Diarmuid F. O’Scannlain and Sandra S. Ikuta upheld the right to bear arms.
    O’Scannlain authored this decision, as well as the similar decision in Peruta which was later overturned en blanc.

  19. avatar john says:

    Relishing the fact they have to either abide by the decision after being defeated or they can appeal and set an even larger precedent. I really hope they appeal!!!!

  20. The State of Hawaii cannot file a petition for rehearing/rehearing en banc because it is not a party to the case. Moreover, it did not want to be a party to the case.

    1. avatar FedUp says:

      Most defendants don’t want to be a party to the suit, but here is a list of the defendants (parties) listed in the 9th Circuit decision which overturned the trial court:

      STATE OF HAWAII;
      NEIL ABERCROMBIE, in his capacity as Governor of the State of Hawaii;
      DAVID MARK LOUIE I, Esquire, in his capacity as State Attorney General;
      COUNTY OF HAWAII, as a sub-agency of the State of Hawaii;
      WILLIAM P. KENOI, in his capacity as Mayor of the County of Hawaii;
      HILO COUNTY POLICE DEPARTMENT, as a sub-agency of the County of Hawaii;
      HARRY S. KUBOJIRI, in his capacity as Chief of Police;
      JOHN DOES, 1–25; JANE DOES, 1–25; DOE CORPORATIONS, 1–5; DOE ENTITIES, 1–5, Defendants-Appellees.

      A state law has been overturned here, the governor and attorney general can either let it go, or fight to keep the law.

      Where it gets weird is the 3 judge panel just ruled contrary to the en blanc panel in Peruta, so we have a circuit split inside the 9th Circuit. CA’s open carry ban is still allowed, HI’s open carry ban is now unconstitutional.

      1. avatar FedUp says:

        WTF?
        Charles is correct, the state of Hawaii was dismissed from the suit and was not a party to the appeal although they did file an amicus brief. (so why were they named in the appellate decision?)

        1. FedUp and I are both right. I’ll expand on my answer. For the State of Hawaii, or the governor, or any of the defendants who were dismissed (particularly those dismissed by the three-judge panel decision) to be able to file a petition for rehearing/rehearing en banc they would first have to file a motion to intervene AND that motion would have to be granted. This case is different from the Peruta v. San Diego decision in a couple of important respects. In Peruta, the NRA lawyers never notified the State of California (specifically its attorney general) that they were challenging the constitutionality of a state law and, of course, no state official was a named defendant. Mr. Young named everyone and his dog in his lawsuit and they successfully argued to be dismissed from the case. There is also no mistake in what Mr. Young asked for in his complaint. There is a procedural lax axiom which says a party cannot complain of an error he invited. That especially applies to parties who asked to be dismissed from a lawsuit and were dismissed, with prejudice.

        2. Well, I tried to edit my comment but it didn’t stick. I meant to say that FedUp and I are both right about the state filing an en banc petition. However, no state law has been overturned and the Young v. Hawaii decision does not conflict with the en banc decision in Peruta v. San Diego.

          FYI, every Federal judge is bound by the Young v. Hawaii decision including the three-judge panel assigned to my California Open Carry appeal. The only people who have to wait for the mandates to issue in our appeals are me and Mr. Young.

  21. avatar Mikial says:

    I like living in Virginia where you can carry concealed with a permit, or open without one.

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