- Apr 26, 2012
- 5,292
I must admit... if "uh" were a drinking game...
Not that I could do any better...
Not that I could do any better...
That is a replay, there are in deliberation now I believe. fred55
That was painful to listen to /watch.
The silence was deafening when opposing counsel had eternity left on his clock and got no more questions from the panel. It seems most of the panel is completely OK with his explanation that the scheme isn't a ban. Think they'd agree if there was a similar abortion "good cause" law
It also seems that (most of) the panel thinks that a law's mere existence is the source of its constitutionality. Opposing counsel mentioned some "30" good cause laws at the turn of the century. I would have asked how many of those were challenged under an individual rights interpretation of the RKBA and how many of these schemes exist today??? Is it any wonder why over 40 states no longer have this law??
That was painful to listen to /watch.
The silence was deafening when opposing counsel had eternity left on his clock and got no more questions from the panel. It seems most of the panel is completely OK with his explanation that the scheme isn't a ban. Think they'd agree if there was a similar abortion "good cause" law
It also seems that (most of) the panel thinks that a law's mere existence is the source of its constitutionality. Opposing counsel mentioned some "30" good cause laws at the turn of the century. I would have asked how many of those were challenged under an individual rights interpretation of the RKBA and how many of these schemes exist today??? Is it any wonder why over 40 states no longer have this law??
It also seemed that Mr. Beck was pulling the case from memory and not relying on an electronic device as the state's atty. seemed to be...
Not making excuses... just an observation.
Sadly, the " [w]here the urgency or the need has been sufficiently indicated " requirement of Hawaii's licensing law was never challenged.
The opposing attorney was Neal Katyal. He was the Acting Solicitor General of the United States under Obama.
https://en.wikipedia.org/wiki/Neal_Katyal
The D. C. Circuit has held that a law limiting public carry to those with a “good reason to fear injury to [their] person or property” violates the Second Amendment. Wrenn, 864 F. 3d, at 655
if Heller I dictates a certain treatment of "total bans" on Second Amendment rights, that treatment must apply to total bans on carrying (or possession) by ordinarily situated individuals covered by the Amendment.
This point brings into focus the legally decisive fact: the good-reason law is necessarily a total ban on most D.C. residents' right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen. We say "necessarily" because the law destroys the ordinarily situated citizen's right to bear arms not as a side effect of applying other, reasonable regulations (like those upheld in Heller II and Heller III), but by design: it looks precisely for needs "distinguishable" from those of the community.
I think it is being challenged in so far as this is a facial challenge. Young isn't claiming that he has a urgency or need aside from self defense.
But I guess he didn't challenge it during orals very well, partially due to all the questions from the panel taking up all his time.
Katyal catagorically stated the Hawaii law was not a gun ban. But only a good cause restriction.
So, Isn't Wrenn V DC / Heller & McDonald controlling opinions?
It's very clear.
AND..
Even the most Hostile judge can read that. "Good cause restrictions" and gun bans are synonymous. No Deference! Marbury v. Madison.
Folks shouldn't put too much stock in this oral argument. Notice that Judge O'Scannlain, the author of the panel opinion, had no questions for either side. The greatest risk at oral argument is that you concede away the case. It is extremely hard to win a case at oral argument. It is really easy to lose a case at oral argument. Neither side lost their case at the argument. Neither side won their case at the argument. The arguments made in the briefs thus matter. Young's briefs are quite good. So wait and see. It will be a closely divided en banc decision.
While I agree with most of what is said, I would not categorize Young's brief as quite good. It is certainly adequate to support their position. What is missing is why the other side is wrong. It was plainly evident from the questions that were asked during oral argument. I don't believe that question was adequately answered during oral argument. The other side, quite confidently side stepped the issue by declaring that the language of the statues are quite clear. I am not sure that is supported by the briefs, which makes the ultimate resolution less clear. This is likely going to be close because the brief really leaves it up to the judges to decide.
It is *always* up to the judges to decide. A brief could be embossed with the certified signature of the Lord Almighty and the judges would be free to ignore it. And I think the Young briefs squarely addressed the other side's contentions and why they are wrong. For example, the text of the statute clearly does make it a may issue state, but the brief argues quite extensively that may issue is facially unconstitutional, relying on Wrenn. It also argues that while the text may be may issue, in reality it is de facto a no issue state, especially in Hawaii County, plaintiff's county of residence, because no permits have ever issued. The non-issuance is a factual allegation that requires a remand for discovery. So if the right extends outside the home, then a no-issue system would fail, just as it failed in Moore. The County focus matters because the Hawaii statute delegates permits to County police chiefs. If the court were to hold that the statute was factially constitutional as a good cause statute, but that the application of the statute to Young was unconstitutional because it was a de facto ban, that would count as a win in my book. They would also necessarily have to set aside the County's absolute discretion to deny because Due Process will not allow this sort of system to apply to a constitutionally protected liberty interest. If the court were to so hold, they would have to also hold that the right extends outside the home and that's a win. The State runs away from that County argument like crazy, refusing to engage it. They argue only (wrongly in my view) that the County argument was not preserved. If I were a betting person, I would bet that the court will reject the facial argument but hold as well that County implementation was unconstitutional. That was Judge Nelson's point.