As you may recall, what seems like an eternity ago — two years — a panel of the Ninth Circuit handed down a decision in Young v. Hawaii. In that case, the petitioner was denied a Hawaii concealed carry permit. Hawaii is technically a “may issue” state that requires an “exceptional case” for a permit, but as Hawaii concedes, in practice the state simply does not issue any concealed carry permits.
Because the refusal to issue permits also effectively bans open carry (limited only to LEO’s, and licensed security guards while on duty), the state of Hawaii has made it impossible to legally carry a firearm outside the home.
George K. Young challenged both the concealed and open carry permit systems, and for good measure added a claim for damages against the state officials involved. (Had this last claim been included in New York State Rifle & Pistol Association v. City of New York up front, that case could not have been mooted by a subsequent change in the law.)
In Young, the district court ruled that the Heller and McDonald decisions established only a “narrow right” applicable inside the home, that intermediate scrutiny applies to Second Amendment cases, and, thus, predictably found that the Hawaii gun control system is just fine.
On appeal, an astounding six years later, the Ninth Circuit finally heard the case. In what seemed like karma, Young drew to an inside straight, and against long odds managed to get a Ninth Circuit panel composed of two conservative GOP appointees (O’Scannlain and Ikuta) and one Dem (Clifton).
In a celebrated opinion that discussed the history of arms laws going back to Middle Ages England, the Court issued a full-throated defense of the Second Amendment, finding that “keep and bear” meant that the right must extend beyond simple possession at home.
The Young panel was able to avoid the Peruta II precedent, where the Ninth Circuit en banc had vacated a panel opinion (by O’Scannlain) that had declared California’s concealed carry system was unconstitutional.
In Peruta II, the Ninth Circuit en banc avoided the pithy (and likely cert-worthy) issue of whether Heller applies outside the home by specifically holding that the Peruta II case did not address the question of the legality of California’s open carry laws, and that the Court was thus not ruling on whether states could ban both open and concealed carry.
While that reasoning was a not-very-transparent dodge, in his Young panel opinion Judge O’Scannlain used it to justify why Peruta II thus did not control the case –- because in Young, there was such a challenge. The panel thus took up that question and found that Hawaii’s open carry permit system was unconstitutional.
Needless to say, the prospect of unrestricted or at least “must-issue” open carry being legal throughout the Ninth Circuit — especially in California — caused a panic among the chattering classes. As it did in Peruta, the Ninth Circuit granted a petition to rehear the case en banc, thus vacating O’Scannlain’s opinion.
In most circuits, en banc rehearing means that a majority of the active Circuit Judges on the Court vote to have the case reheard by the full court. As the Ninth Circuit has 29 judges, that means 15 have to vote to rehear the case. However, because having 29 judges hear a case is impractical, they have a rule whereby the en banc case is decided by the Chief Judge and ten randomly-selected active service judges.
Because this vote came after the Supreme Court granted the cert petition in NYSR&PA v. New York, the Court then put the case on ice until that matter was decided. Last week, after the Supreme Court announced its NYSR&PA decision, the Ninth Circuit issued an order [link] setting a briefing schedule and argument date for the week of September 21.
Given that the Ninth Circuit has gone to extraordinary lengths to delay this case as much as possible (the appeal was filed in 2012, for crying out loud), I was mildly surprised that they did so.
So, what does this mean?
If the case is argued as scheduled, it will before Chief Judge Sidney Thomas (a Clinton appointee) plus ten randomly selected active judges. As these will be selected from a pool of 13 GOP appointees and 15 Democrats, on paper the odds are slightly in the Dems’ favor (but having a majority of GOP judges is not at all inconceivable, especially if President Trump gets another Ninth Circuit pick before the fall).
In reality, however, I view that as wishful thinking. Because of the old practice of “blue slips” (where judicial nominations would not be considered if the Senators from the nominee’s state object), many of the GOP judicial appointees in the Ninth Circuit from the Bush 1 and 2 administrations are actually RINOs, because the Dem Senators of California, Oregon, Washington, Hawaii, etc. would not approve the nomination of a strong conservative. Majority Leader McConnell has since, wisely, discarded the “blue slip” practice.
The bottom line is that while the Ninth Circuit is much better than it has been in years (thanks to 7 PDT-appointed judges, unconstrained by blue slips), the odds of getting a 2A friendly majority on a Ninth Circuit en banc panel are quite remote.
Additionally, if the Supreme Court grants cert in one of the other pending 2A cases, I strongly suspect that the Ninth Circuit will once again put the case on ice . . . and thus the already-ridiculous amount of time the Young case has been on appeal will become truly absurd.
Of course, if the Supreme Court grants cert and comes down with an opinion like we were hoping for in NYSR&PA, then the Ninth Circuit will be in a jam.
If they ignore or wink at a strong new Supreme Court opinion, it would be an easy cert petition. If they follow it, then they have to either issue a new en banc opinion that will be binding throughout the Ninth Circuit, or vacate the en banc rehearing and allow O’Scannlain’s panel opinion to become the law. Either way, it becomes a whole new world in the gun-unfriendly states of California, Hawaii, Oregon, Washington, etc.
Then again, they could just sit on this case for another few years . . . which I suspect is exactly what they will do.