By LKB
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.
This only serves to underscore how important the Presidential election of 2020 will be; the odds that the next president will appoint Ruth Ginsberg’s replacement are close to 100%. She has stated that she will not resign while a Republican is in office, but she can’t live forever. I suspect that she would resign the day after inauguration of a democrat.
The choice is, another conservative 2nd-amendment-friendly judge on the Supreme Court, or the same old same old, not to mention all those appointments to the lower courts.
I get a kick out of people who say that the President really can’t DO much, or doesn’t really make much of a difference.
Weekend at Bernie’s?
Well said. Trump must win in 2020 and he must throw the bird at Democrats and RINOS and keep his campaign promises. There is no legitimate reason why we cannot carry in all 50 states and territories of the U. S. I guarantee that crime will plummet if a good gal or guy can carry in Puerto Rico.
of course RBG retiring the day Biden is sworn in would be politicizing the court, something the senators warned about. That would be naughty
No shit. Wonder what words of wisdom Roberts would bestow upon us then…
Yeah, like the DemonicRats care.
Ginsburg can’t live forever? I beg to differ. She already has.
She’s stuffed, as was my old Hector by those cunning Pawnee during my dotage.
You want to see an all out war in Congress? 🙂
Elect a Democrat for President and leave the Senate with a Republican majority and then try to replace Ruth
It was Harry Reids inability to get 60 votes with the Republicans to affirm judges that made him change the rule to simple majority. That very rule the Republicans are exploiting aggressively now to approve judges. I say push all the judges through now before something changes.
It’s the ninth circuit. They’ll find someway to say the banning of allOpen and concealed carry is constitutional. After all California wants to ban whatever is left of their open and concealed carry. And if it ever goes before the Supreme Court the supreme court will just not bother. And they know it. Or SCOTUS will say it is constitutional for a state to ban open and concealed carry.
After all, this is the ninth circuit court. The court that Cannot find a gun control law they don’t like and Will always side with the state no matter how extreme it is. A court that actually wants not only all guns banned but wants gun ownership punishable by immediate execution without trial and for all guns to be confiscated by force and for every single gun owner to be systematically exterminated by the government even if they give up their guns.
“A court that actually wants not only all guns banned but wants gun ownership punishable by immediate execution without trial and for all guns to be confiscated by force and for every single gun owner to be systematically exterminated by the government even if they give up their guns.”
Maybe not that far. They need productive people to pay the bills.
California has already banned open carry in the places where it is most needed: all urban (called “incorporated”) areas of the state. Add to that the ban on carrying without a CCW within 1000 feet of a school, including all colleges and universities, public and private; even with elimination of the open carry ban, the Gun free School Zone act makes it essentially impossible to open carry except where it is already allowed. The final nail is that the Ninth Circuit concluded in Peruta (cert. den.) that there is no 2A right to carry a concealed weapon, and that therefore the State’s “may issue” issuance scheme was constitutional. Although some counties (the essentially rural ones, with a few exceptions) are “essential shall issue,” other than Sacramento (an essentially shall issue town), the big urban areas are “essentially no issue.” Thus, for residents of most large urban areas of the state, there is no possible way to carry except unloaded and in a locked container.
California wants to change their “citizens” and make them “subjects”. Citizens have rights (like the 2nd amendment), Subjects have no rights except those granted by the prevailing authority
Hawaii’s law shall be upheld without question. The court system is not a means of correcting unconstitutional laws when it comes to the right to bear arms.
Really? Pray tell, what *is* a means? If a state passes a law which is unconstitutional, it is rather difficult to correct that action by passing an Amendment to make unconstitutional laws more unconstitutionaler. Which leaves the courts, how do you say it does not?
There doesn’t have to be one. Sometimes you are just effed. However, I imagine he is implying that more revolutionary actions will be required.
Moving vans are one way.
I would suggest ballots but rampant illegal immigration coupled with leftist education has outnumbered people who think along constitutional lines.
What Stateisevil said, the courts will continue to hold up whatever nonsense these states come up with. The bigger question should be why are they even allowed to pass these laws in the first place? It’s pretty obvious depriving rights under color of law. Guess they figure if the Governors and Police can unchecked they might as well too.
I’ve followed this case pretty closely, and I think that the County of Hawaii has enacted a few changes intended to moot the case. The case is pretty compelling, in that the rural areas of the county are essentially jungles that are full of wild boar–but you cannot get a permit to pen carry even with the risk. Further, the chief of police has always interpreted the ordinance to apply only to police and security officers, despite the fact that the language of the ordinance is not so limited, and refuses any applications for a license not from someone who is a guard. The ordinance therefore acts as an open carry ban. since the Ninth Circuit already ruled in Peruta that there is no constitutional right to a CCW, it will have a difficult task getting out of the corner it painted itself into to uphold the law without concluding that there is no 2A right to carry outside the home. We had hoped that SCOTUS would have answered that question in the NYRPA case, but that case fizzled out. If the Ninth upholds the ordinance, it is a straight shot to SCOTUS that will be accepted for review.
It’s a toss up after all it is the Ninth Circus,the most overturned court in the nation.
Not when it comes to Second amendment issues. The supreme court is as anti-gun as the ninth circuit is now.
Here we go again…Gun Control VS The Constitution. If the Constitution and justice mattered there would be no Gun Control case for overpaid ivory tower judges to play games with.
Would they take on segregation? Would they take on slavery? Would they take on Jim Crow? Would they take on the KKK? Would they take on Eugenics? They would not think about any of the aforementioned simply because they are all Race Based Atrocities. The roots of Gun Control are equally embedded in racism and genocide yet Gun Control cases get heard as if Gun Control has nothing whatsoever to do with race based atrocities.
The reason Gun Rights are always on the chopping block is because Gun Control is never equated to a racist lynch mob, etc. Instead if you exercise your 2A Right you are called a nazi and racist by politically inept history illiterates. All the evidence shows racism and genocide belongs around the necks of those with a Gun Control Agenda.
Arguments for Gun Rights tend to be the usual worn out explanations why citizens need firearms, etc. In order for this to change Gun Control must be moved to the racist and genocide category. Why? Because Gun Control belongs there like the rest of the race based atrocities attributed to the democRat Party.
Instead of Pro Gun Rights Groups always explaining and answering questions for Gun Control zealots it is past time to ask Gun Control zealots to justify their racist and nazi based Gun Control agenda.
TL; DR: Judges are evil, and you will never be free if you’re waiting for their permission.
Joke circus court!
Shall not be infringed! K. I. S. S.
Courts, cops and politicians are all part of the same hypocrisy. The Ninth will do what the Ninth always does, and nothing will change that. And if you don’t like it, the politicians will send in the Crushers who will straighten you out. That’s the way it has always been.
Sad this doesn’t seem to be understood. I’m actually for the court fight to show that we exhausted legal, peaceful means of redress. If we were willing and organized, we could then take necessary action to overrule the politicians and their collaborator/enforcers.
Look at the way Americans are currently running around like their hair’s on fire. Don’t expect them to stand up for themselves en masse.
In the land of the neutered, the monorchid man is king.
Not much of a court fight when the court bows to Democrat senators threatening them.
Here’s a possible upside to getting ‘NY Pistol’ ruled moot –
Technically (the very best kind of correct), the court did exactly as the letter demanded SCOTUS to do.
If any more 2A cases are granted cert, they are under no obligation to do as the politicians demanded that they do, *unless* they issue another
letter’. If they issue that letter, it’s quite clear they intended to influence the federal judiciary.
Meaning, they will be wide-assed open to being charged with a federal crime, and an excellent chance of getting a conviction… 🙂
Getting close to the time when “citizens” become “subjects”, with the same results that came about last time a renegade government tried that to US citizens, which I think was in 1776
Where’s Woody Harrelson’s dad when you need him?
LKB, isn’t it still a right to a speedy trial?
Why aren’t we using that to move 2A cases through the legal pipeline?
Speedy Trial Act applies in criminal cases only, and even in criminal cases there are all sorts of exceptions that can apply.
There’s really no way to make a Court of Appeals (or for that matter, a US District Court) move expeditiously in any civil case. (OK, in theory, you could get the Supreme Court to issue a writ of mandamus, but how many of those have been issued, ever?)
Moreover, the right is to a speedy trial, not a speedy appeal. Appeals can take–and usually take–years.
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There are times when “hanging judge” should be an event rather than a description of character.
As a former resident of the 50th state all I can say is no way this case will reach the light of day. Hawaii is likely the most peaceful state in the union if not the world. It is controlled by several powerful Asian corporations who dictate much of the politics. One of the most powerful is Sony. They will never give up having their own private piece of land in America. Hawaii is not so much a state as it is a corporate entity. I moved to Utah for exactly this reason.
In 1985, when I was there, Hawaii was far from peaceful, and they had some of the most idiotic gun laws I have ever encountered in 22 years of military moves around the planet. In 1983 when I arrived, I brought my personal gun collection, from Oregon, where there were no restrictions on any guns in my collection. But in Hawaii ALL of them had to be registered…Except by the state law there in Hawaii not all of my “guns” were “firearms”. I had a black powder .45 cal, single shot pistol, three .44 cal revolvers and a .54 caliber rifle, none of which had to be registered under the law, but all of my other firearms did require registration even though I kept them and never took them off a Federal Military installation. In late 1985 as I was prepping to leave Hawaii for Kentucky, one of the NCO with whom I worked went to a nightclub in Honolulu and in the “Peaceful environment” of the “Tourist Strip” of Waikiki, someone blew up his car. Not exactly a picture of peace. Earlier that month on two separate instances, someone, ostensibly military, tossed two M67 Fragmentation Grenades into the street in that same part of the Tourist Strip.
It would take a crate of blue pencils to correct all of the errors in this article. Suffice it to say, the only thing Mr. Young can obtain is a permit to carry a handgun, openly or concealed. His claims for monetary damages from the Complaint he filed in the district court were forfeited on appeal. Notwithstanding his Prayer for Relief did not specify from whom he was seeking these “punitive” and “compensatory” damages, the Eleventh Amendment prevents him from collecting monetary damages from the State of Hawaii or the state officials sued in their personal capacity.
Mr. Young did not serve Defendants County of Hawaii and Hilo County Police Department.
Mr. Young did not have an attorney in the district court and so he is not entitled to attorney fees but even if he did have an attorney, attorney fees and/or costs are insufficient to overcome mootness.
In short, the only thing needed to moot Mr. Young’s lawsuit is to issue Mr. Young a permit to carry a handgun (openly or concealed) and to agree to renew it until “not less than three years” has expired.
I meant to say state officials sued in their “official” capacity. If Mr. Young were to prevail and was still denied his permit then he would be able to sue the person who denied him his permit for monetary damages, including state officials.