Young Opening Brief Filed

Docket Text:
Filed clerk order (Deputy Clerk: AF): Defendants-Appellees’ motion for an extension of time to file their supplemental en banc reply brief is GRANTED. The reply brief for both parties will now be due on Monday, June 29, 2020. [11713990] (AF)

[Pondering Hat On] Is this the one the SCOUS is waiting for? [/Pondering Hat Off]





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Boxcab said:

[Pondering Hat On] Is this the one the SCOUS is waiting for? [/Pondering Hat Off]





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Hope not, because games will be played. New York showed the way on that one.

jcutonilli said:

Apparently there were 17 amicus briefs that were filed as of now.

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• John Cutonilli

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Since the brief you filed doesn’t seem to be on the site that has links to the others, would you mind posting a copy of it here? I’d love to read it.




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here you go

one last amicus from brady campaign

Interesting read. I hope they consider it fully.

wolfwood said:

here you go

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Thanks! It was an enjoyable read. I especially like how he likens Hawaii's arguments to those raised in Korematsu.

Seeing how this brief was submitted to the court, and is thus supposedly part of the official record in your support, are you going to be able to raise some of these argument during orals? I ask because I'm skeptical that there is any mandate on the part of the court to address arguments made by amici, but there is supposedly a mandate for them to address arguments made by litigants.

His public safety argument may be worth raising explicitly. I should note that he implicitly argues that individual safety is related to public safety, but does not explicitly make that argument. I'd think that such an argument would be necessary in order to preempt any argument that, somehow, "public safety" is completely independent of individual safety, thus justifying laws which impede the latter. Put another way, it's well and good to argue that gun ownership on the part of law abiding citizens improves individual safety, but that might not help unless you can also somehow prevent the meaning of "public safety" from being wholly detached from individual safety. In the presence of such detachment, there will be nothing gained by arguing for how carry in public improved individual safety.

Indeed, my fear is that the government can argue that because the government has no interest in the protection of any specific individual, the safety of individuals is irrelevant to it and, therefore, any law which jeopardizes individuals in furtherance of public safety cannot legitimately be challenged on the basis of the safety of the individual. The only way I can see to thwart that argument is by showing how individual safety and public safety are inseparable.

jcutonilli said:

Apparently there were 17 amicus briefs that were filed as of now.

• Neal Goldfarb
• New Civil Liberties Alliance
• Brief of Amici Curiae City and County of Honolulu, County of Kauai, and County of Maui in Support of Defendants-Appellees.
• Corpus Linguistics Professors and Experts as Amici Curiae Supporting Appellees.
• States of New Jersey, Connecticut, Illinois, Maryland, Massachusetts, New York, Oregon, Rhode Island, Virginia, and the District of Columbia
• State of California
• Everytown for Gun Safety
• Prosecutors Against Gun Violence
• Giffords Law Center to Prevent Gun Violence
• SOCIAL SCIENTISTS AND PUBLIC HEALTH RESEARCHERS
• Professors of History and Law.
• THE STATES OF LOUISIANA, ALABAMA, ARIZONA, ARKANSAS, GEORGIA, IDAHO, INDIANA, KANSAS, KENTUCKY, MISSISSIPPI, MONTANA, NEBRASKA, NORTH DAKOTA, OHIO, OKLAHOMA, SOUTH CAROLINA, SOUTH DAKOTA, TEXAS. UTAH, WEST VIRGINIA IN SUPPORT OF PLAINTIFF-APPELLANT.
  [*]John Cutonilli
• National Rifle Association of America
• Professors of Second Amendment Law, Firearms Policy Coalition, Firearms Policy Foundation, Cato Institute, Madison Society Foundation, California Gun Rights Foundation, Second Amendment Foundation, and Independence Institute
• Hawaii Rifle Association; California Rifle & Pistol Association, Incorporated; and Gun Owners of California
• Hawaii Firearms Coalition

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Nice brief.

It occurred to me in reading it that mention might have been made, in the section defending concealed carry, that at present, in many states, open carry has been considered to be threatening behavior, leading directly to charges of disturbing the peace of the timid and faint of heart.

jcutonilli

Sir,

Many thanks for your efforts on behalf of the 2A!

Regards
Jack

kcbrown said:

Thanks! It was an enjoyable read. I especially like how he likens Hawaii's arguments to those raised in Korematsu.

Seeing how this brief was submitted to the court, and is thus supposedly part of the official record in your support, are you going to be able to raise some of these argument during orals? I ask because I'm skeptical that there is any mandate on the part of the court to address arguments made by amici, but there is supposedly a mandate for them to address arguments made by litigants.

His public safety argument may be worth raising explicitly. I should note that he implicitly argues that individual safety is related to public safety, but does not explicitly make that argument. I'd think that such an argument would be necessary in order to preempt any argument that, somehow, "public safety" is completely independent of individual safety, thus justifying laws which impede the latter. Put another way, it's well and good to argue that gun ownership on the part of law abiding citizens improves individual safety, but that might not help unless you can also somehow prevent the meaning of "public safety" from being wholly detached from individual safety. In the presence of such detachment, there will be nothing gained by arguing for how carry in public improved individual safety.

Indeed, my fear is that the government can argue that because the government has no interest in the protection of any specific individual, the safety of individuals is irrelevant to it and, therefore, any law which jeopardizes individuals in furtherance of public safety cannot legitimately be challenged on the basis of the safety of the individual. The only way I can see to thwart that argument is by showing how individual safety and public safety are inseparable.

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There is still has a reply brief both side file. I am guessing he does not want to discuss what might be there.

I thought the argument that individual safety is related to public safety was explicit

It is precisely for this reason that the individual right to self-defense is critical. Not only are lawful gun owners able to fill critical gaps in safety for their own benefit, but they may also provide protective benefits to the greater public. The self-responsible individual who is able and willing to contribute to his own self-defense is a vital component of public safety. Since an individual is a subset of the public, the safer individuals are, the greater is the level of general or public safety. The aggregation of each individual’s safety contributes to the public’s safety. The abridgement of individual rights, therefore, diminishes not only the individual’s safety, but the public’s safety as well.

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If the government argues that individual safety is not important, then they undermine their own case because they rely on the aggregation of individual instances of crime to support the contention that guns are harmful to society.

jcutonilli said:

There is still has a reply brief both side file. I am guessing he does not want to discuss what might be there.

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I certainly have no problem with that.

I thought the argument that individual safety is related to public safety was explicit

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Um, wow. Go me! I read the passage you quoted but somehow didn't remember it when commenting. Sigh. You know your memory is bad when you can't even remember everything of import in a single brief immediately after having read it. So disregard my comment about it not being made explicit. It was. I guess this means that from this point forward, I'm going to have to go explicitly check a given source for whatever I'm commenting on at the time I'm specifically commenting on it. Sorry, man.

Makes me wonder if there's some way to highlight your argument, which I do agree with (I'm not convinced any court will agree with it, but that's obviously a separate question and one I hope I'm wrong about). Regardless, it seems prudent that it be raised in orals, so that it gets raised as an argument being made by a litigant.

Here's the problem: now you have the state arguing that their law improves public safety, while you're arguing that it reduces public safety. Doesn't that make it a question of fact and not law, and thus something that the court would "have to" defer to the legislature on or, at least, that a jury would have to decide?

If the government argues that individual safety is not important, then they undermine their own case because they rely on the aggregation of individual instances of crime to support the contention that guns are harmful to society.

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It may be sufficient for the government to argue that, in light of your argument, the individual-safety component of public safety is less important than the non-individual-safety component of public safety . They could, presumably, make such an argument on the basis of the latter covering the entirety of the citizenry whilst the former covers only those individuals who are actively affected by the law.


In any case, again you have my compliments on a well-done brief.

Oh, and one other thing: I'm happy to see that you've come around to our position on the courts using rational basis dressed up as intermediate scrutiny, and quite like the way in which you show how the courts are doing that.

kcbrown said:

I certainly have no problem with that.

Um, wow. Go me! I read the passage you quoted but somehow didn't remember it when commenting. Sigh. You know your memory is bad when you can't even remember everything of import in a single brief immediately after having read it. So disregard my comment about it not being made explicit. It was. I guess this means that from this point forward, I'm going to have to go explicitly check a given source for whatever I'm commenting on at the time I'm specifically commenting on it. Sorry, man.

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I make lots of mistakes also, don't worry about it.

Makes me wonder if there's some way to highlight your argument, which I do agree with (I'm not convinced any court will agree with it, but that's obviously a separate question and one I hope I'm wrong about). Regardless, it seems prudent that it be raised in orals, so that it gets raised as an argument being made by a litigant.

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That is up to the litigants and the judges

Here's the problem: now you have the state arguing that their law improves public safety, while you're arguing that it reduces public safety. Doesn't that make it a question of fact and not law, and thus something that the court would "have to" defer to the legislature on or, at least, that a jury would have to decide?

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This is a bench trial so the trier of facts are the judges, there is no jury. Judges generally defer to the legislature over matters of policy.

I have challenged the extent of their public safety interest based on matters of law. They do not protect individuals, which is why the 2A is important. It is this component of the collection of individuals that enhances public safety.

I have also challenged there use of data not by introducing new data, but by better explaining why their use is incorrect. They use the criminality of a few to deny everyone's right. They use correlation without demonstrating causation, and they use arrests instead of convictions. None of those issues should be considered policy matters.

It may be sufficient for the government to argue that, in light of your argument, the individual-safety component of public safety is less important than the non-individual-safety component of public safety . They could, presumably, make such an argument on the basis of the latter covering the entirety of the citizenry whilst the former covers only those individuals who are actively affected by the law.

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The government would need to acknowledge that not everyone matters. I do not see that ever happening.

In any case, again you have my compliments on a well-done brief.

Oh, and one other thing: I'm happy to see that you've come around to our position on the courts using rational basis dressed up as intermediate scrutiny, and quite like the way in which you show how the courts are doing that.

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I have never disagreed with it. My contention is that it shows up in most arguments as a baseless statement and I try and challenge everyone to explain why. Nobody else can explain why. We will see if this argument succeeds.

jcutonilli said:

That is up to the litigants and the judges

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What arguments, if any, does the court have an obligation to address? I'd think at the least it would have an obligation to address the arguments made by litigants, since to do otherwise amounts to disregarding the controversy.

This is a bench trial so the trier of facts are the judges, there is no jury. Judges generally defer to the legislature over matters of policy.

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But this is at the appellate court. Does the appellate court have authority to decide matters of fact?

I have challenged the extent of their public safety interest based on matters of law. They do not protect individuals, which is why the 2A is important. It is this component of the collection of individuals that enhances public safety.

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Oh, I quite agree. But here's the problem. We have two facts (for lack of a better word -- these are really just settled case law) on the table:

1. The government has a compelling interest in "public safety", which means it has an obligation to act in ways that improve, or at least do not diminish, "public safety".
2. The government has no obligation to the safety of any individual.

From the second fact, it follows that the government has no obligation to the aggregate of individual safety, either, since an obligation to the aggregate is the aggregate of obligations to the safety of individuals, and the government has none of the latter, and thus cannot have the former.

Thus, since the government has an obligation to something called "public safety", and simultaneously does not have an obligation to even the aggregate of individual safety, it follows that "public safety" as used by the government and with respect to government action is not the aggregate of individual safety, nor does it include it. Alternatively, if "public safety" includes that aggregate, it follows that the government's only obligation is to that part of "public safety" which is disjoint from that aggregate, and it is that disjoint part which is referred to as "public safety" in law and in litigation.

Therefore, it follows that laws which impede individual safety cannot impede the government's "public safety" interest unless they also impede that part of "public safety" which does not intersect the aggregate of individual safety.

This has the effect of rendering the law's effects on individual safety, and the aggregate of individual safety, irrelevant to the law.

I have also challenged there use of data not by introducing new data, but by better explaining why their use is incorrect. They use the criminality of a few to deny everyone's right. They use correlation without demonstrating causation, and they use arrests instead of convictions. None of those issues should be considered policy matters.

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Yes, I saw that and agree with it.

The government would need to acknowledge that not everyone matters. I do not see that ever happening.

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In light of the use of the term "public safety" and the implications thereof, as I described above, it does not follow that the government would need to acknowledge that not everyone matters. In fact, by arguing that their only concern is that which affects all citizens, they could argue that their concern proves that everyone does "matter" to them.

I have never disagreed with it. My contention is that it shows up in most arguments as a baseless statement and I try and challenge everyone to explain why. Nobody else can explain why. We will see if this argument succeeds.

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Ah. That wasn't clear to me, but with this brief it certainly is now.

I think you've done an excellent job of explaining how it's rational basis. I have seen others argue with respect to how the evidence is filtered, and how it is rational basis because the evidence is accepted without challenge, but that has mainly been with respect to standards of evidence and such. What you point out is a much more fundamental problem with respect to how the evidence is treated. I cannot recall seeing such arguments being made anywhere else except maybe in some forums like this one.

All in all, I think you did really well with that brief, and encourage you to contribute similar briefs to other cases.

kcbrown said:

What arguments, if any, does the court have an obligation to address? I'd think at the least it would have an obligation to address the arguments made by litigants, since to do otherwise amounts to disregarding the controversy.

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The court simply has an obligation to write an opinion, which resolves the controversy. They typically do address the arguments, but not always. Peruta is an example of where the court sort of disregarded Peruta's arguments (allow either concealed or open carry) and simply resolved the controversy by declaring concealed carry not part of the right.

But this is at the appellate court. Does the appellate court have authority to decide matters of fact?

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It depends on the facts. They do not rehear witnesses so certain matters of fact are deferred to the trial court. In cases like Young, the case is primarily decided on the briefs so they typically will decide matters of facts based on the briefs.

Oh, I quite agree. But here's the problem. We have two facts (for lack of a better word -- these are really just settled case law) on the table:

1. The government has a compelling interest in "public safety", which means it has an obligation to act in ways that improve, or at least do not diminish, "public safety".
2. The government has no obligation to the safety of any individual.

From the second fact, it follows that the government has no obligation to the aggregate of individual safety, either, since an obligation to the aggregate is the aggregate of obligations to the safety of individuals, and the government has none of the latter, and thus cannot have the former.

Thus, since the government has an obligation to something called "public safety", and simultaneously does not have an obligation to even the aggregate of individual safety, it follows that "public safety" as used by the government and with respect to government action is not the aggregate of individual safety, nor does it include it. Alternatively, if "public safety" includes that aggregate, it follows that the government's only obligation is to that part of "public safety" which is disjoint from that aggregate, and it is that disjoint part which is referred to as "public safety" in law and in litigation.

Therefore, it follows that laws which impede individual safety cannot impede the government's "public safety" interest unless they also impede that part of "public safety" which does not intersect the aggregate of individual safety.

This has the effect of rendering the law's effects on individual safety, and the aggregate of individual safety, irrelevant to the law.

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We don't know the government's obligations to the aggregate of individual safety. We know it has an obligation to the public at large, but not to individuals. We don't know how much many individuals are needed to be considered the public. Nor do we know if there needs to be multiple instances. The aggregate of individual safety appears to fall within the governments obligations due to the number of people and the number of instances.

In light of the use of the term "public safety" and the implications thereof, as I described above, it does not follow that the government would need to acknowledge that not everyone matters. In fact, by arguing that their only concern is that which affects all citizens, they could argue that their concern proves that everyone does "matter" to them.

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Crime does not really affect all citizens though. The governments current position is based on the negative effects from the aggregation of individual instances. They do not have an argument if these instance are not part of the government's interest in public safety.

We win if the aggregate of individual safety is part of the government's interest and we win if it is not part of the interest.

All in all, I think you did really well with that brief, and encourage you to contribute similar briefs to other cases.

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We will see. It takes a lot of effort to put one together.

jcutonilli said:

The court simply has an obligation to write an opinion, which resolves the controversy. They typically do address the arguments, but not always. Peruta is an example of where the court sort of disregarded Peruta's arguments (allow either concealed or open carry) and simply resolved the controversy by declaring concealed carry not part of the right.

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Hmm... can the controversy really be considered resolved if the court fails to address one of the arguments made by the losing party? If not, what prevents the court from failing to address any of the arguments made by the losing party, and simply declaring the winner as if the loser never made any arguments at all?

It depends on the facts. They do not rehear witnesses so certain matters of fact are deferred to the trial court. In cases like Young, the case is primarily decided on the briefs so they typically will decide matters of facts based on the briefs.

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Interesting. Exactly where is the boundary between the trial court and the appellate court as regards matters of fact?

We don't know the government's obligations to the aggregate of individual safety.

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By the argument I raised above, it has no obligations to the aggregate of individual safety, since such an obligation automatically logically implies an obligation to the components of the aggregate (the aggregate does not exist without the components).

We know it has an obligation to the public at large, but not to individuals. We don't know how much many individuals are needed to be considered the public. Nor do we know if there needs to be multiple instances. The aggregate of individual safety appears to fall within the governments obligations due to the number of people and the number of instances.

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I don't know that this is clear at all. One could certainly argue that it should, but if one does, then one runs afoul of the claim that the government owes nothing to the safety of any individual.

Crime does not really affect all citizens though. The governments current position is based on the negative effects from the aggregation of individual instances. They do not have an argument if these instance are not part of the government's interest in public safety.

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But this presumes that the only effect of crime is on the aggregate of individual safety. That said, this is a good point -- the government can't use the aggregate in one direction without being responsible for the aggregate in the other direction.

We will see. It takes a lot of effort to put one together.

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Well, your efforts here are greatly appreciated, at least by me. It was certainly nice to see some things clarified that we had discussed previously.

Today we filed our reply brief in Young and the State filed their reply. The first link is to the State's and the second is ours.

https://pdfhost.io/v/5tvyPqdIw_Microsoft_Word_Young_Reply_Brief_629docx.pdf

https://pdfhost.io/v/e1xBjJK8P_Young_Filed_En_Banc_Reply_Briefpdf.pdf

Once again well done WolfWood!!!

On the contrary, licensing schemes are necessary
to enforce lawful gun restrictions, including prohibitions on carry by felons, the
mentally ill, and minors.

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I don't know what kind of crack team works in Hawaii, but all of these examples do NOT require a licensing scheme in order to prevent felons, mentally ill, and minors from carrying. NICS already does all of that and a form of ID can verify you aren't a minor. Beyond that, a law doesn't physically stop people from doing anything the first time.

Hoping for the best, thanks for the continued work WolfWood!

Wolf posted this on the Book of Faces...

I will be arguing Young v State of Hawaii on Sept. 24. in front of the 11 judge en banc court.

Filed order (SIDNEY R. THOMAS): This en banc case is set for virtual oral argument on Thursday, September 24, 2020, at 1:30 p.m. Pacific time. [11799925] (AF

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