Saturday, September 22, 2018

Expected: Hawaii Government files for Ninth Circuit en banc Ruling on Right to Bear Arms (Young v. State of Hawaii)

On 24 July, 2018, a three judge panel of the Ninth Circuit upheld the right to bear arms outside the home. As expected, the State of Hawaii waited until the last possible day, then filed a petition for the Ninth Circuit to hear the case en banc, that is, by the whole court.

Because the Ninth Circuit is so large and awkward compared to other circuits, an en banc hearing of the Ninth involves 11 judges chosen at random, out of the 23 or 24 judges (depending on confirmation hearings) on the Ninth Circuit.

In the closely linked case of Peruta, the Ninth Circuit granted an en banc hearing of the case. The process took about 18 months.

In the Peruta case, a request for an en banc hearing was denied in November of 2014. Then a judge on the Ninth Circuit called for an en banc vote anyway.  The the vote for an enbanc hearing was announced on 26 March, 2015. Oral arguments were heard on 16 June, 2015.  On June 10th, 2016, the Ninth Circuit, en banc, reversed the ruling of the three judge panel on Peruta and narrowly found there was no  right to carry arms concealed outside the home. The case was appealed to the Supreme Court, which refused to grant certiorari.

In Young v. State of Hawaii, the case rules only on permits for open carry, as the precedent of Peruta foreclosed a right to concealed carry in the Ninth Circuit.

In the petition for an en banc rehearing, the Government of Hawaii claims the mere potential for police chiefs to issue open carry permits is sufficient to satisfy any right to bear arms outside the home, although only four permits have been issued for people (outside of employment permits) in the last 18 years. From Young v. State of Hawaii:

First, the panel invalidated Hawaii’s law on the ground that it limits open-carry licenses to “security guards” and other individuals whose jobs entail protecting life and property. Add. 51-52. But that is just wrong. By its plain terms, Hawaii Revised Statutes § 134-9 makes open-carry licenses available to  any otherwise-qualified individual who “sufficiently indicate[s]” an “urgency” or “need” to carry a firearm and who is “engaged in the protection of life and property.” Haw. Rev. Stat. § 134-9(a). Moreover, if there was any doubt on the question, the Hawaii Attorney General has removed it by issuing a formal legal opinion that clarifies that the law extends to private individuals as well as security officers, and that advises police chiefs that victims of domestic violence, individuals who face a credible threat of armed robbery or violent crime, and other private persons may be eligible for open-carry licenses.
 The Ninth Circuit has proved hostile to the Second Amendment right to keep and bear arms. It has interpreted the Second Amendment in the most narrow way possible, in order to infringe on the exercise of Second Amendment rights as much as it can get away with. The only authorities who have the power to reverse the Ninth Circuit are the Supreme Court and future Ninth Circuit judges.

Legislative remedies are possible with the California government, but are highly unlikely in the foreseeable future. The California government seems bent on passing as many infringements on Second Amendment rights as it can.

Legislative remedies are also possible with the federal legislature, who could tie the exercise of Second Amendment rights to federal money that is given to California.

As of this writing, it appears that Judge Kavanaugh will be confirmed to become Justice Kavanaugh on the U.S. Supreme Court. This changes the dynamics of a potential Supreme Court appeal if the Ninth Circuit decides to hear Young v. State of Hawaii en banc, and the decision is appealed to the Supreme Court.

As we saw with the Peruta decision, the en banc process  can take 18 months or more.

Do not expect any definitive rulings on the case for at least two years.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch


george pace said...

According to the recent AG Opinion No. 18-1,and the state's petition for en banc hearing, which relies heavily on the AG Opinion:

Yeah, I'm pretty sure that's how the constitutions (U.S. and Hawaii) read:

"... the right of the people who "must demonstrate, among other things, that he or she [what?! no zhe, etc,?] has a need for protection that substantially exceeds that held by ordinary law-abiding citizens" to keep and bear arms shall not be infringed."

Not sure why the Founders had to be so wordy about it. I guess that's the only way they could make unambiguously clear that "ordinary law-abiding citizens" did NOT have those rights.

Anonymous said...

Any moron that is too stupid to comprehend contract law can do with out their second amendment rights. You worthless ignorant bastards incapable of reading plain English, need to ask someone to help you read the constitution. Find any written authority for any one including judges to interpret the constitution or any law Contracts are complied with as written. The constitution is a contract under English common contract law. Until gun rights people start understanding the issue. endless argument will never solve the problems. There are 26 words in the second amendment. Nothing else can be considered, until a constitutional amendment changes those words. some of the Framers carried guns to the convention.

Anonymous said...

Moron The 2nd amendment does not say law abiding citizens It makes the very clear legal STATEMENT The rights of the citizens shall not be infringed any words added are unconstitutional. If a judge issues an order "You SHALL NOT leave your home" what days of the week can you go to town? None you dumb ass there are no days written. Shall not leave, SHALL NOT INFRINGE. only the words actually written apply.