Young Opening Brief Filed

Applehd · Sep 24, 2020

I must admit... if "uh" were a drinking game... :drunk:

Not that I could do any better...

krucam · Sep 24, 2020

Listening now

https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000017952

fred55 · Sep 24, 2020

krucam said:
Listening now

https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000017952

That is a replay, there are in deliberation now I believe. fred55

krucam · Sep 24, 2020

fred55 said:
That is a replay, there are in deliberation now I believe. fred55

My mistake...

press1280 · Sep 24, 2020

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 :sad20:

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??

pcfixer · Sep 24, 2020

press1280 said:
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??

Yep. I get it. The guy from Hawaii or lawyer doesn't get it either.

It appears that a handful of States throughout the country prohibit citizens from carrying arms in public unless they can establish “good cause” or a “justifiable need” for doing so.
The majority of States, while regulating the carrying of arms to varying degrees, have not imposed such a restriction, which amounts to a “a[n] on the ability of most citizens to exercise an enumerated right.” Wrenn, 864 F. 3d, at 666. The Courts of Appeals are squarely divided on the constitutionality of these onerous “justifiable need” or “good cause” restrictions. 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 (internal quotation marks omitted).

Really doens't matter if Hawaii history of good cause IS 150 years old.

Applehd · Sep 24, 2020

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... :shrug:

Not making excuses... just an observation.

jcutonilli · Sep 24, 2020

press1280 said:
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??

I am not sure that I would categorized the silence as an indication that the panel is OK with what is said. A number of them indicated that they felt the history is murky. All the opposing lawyer did was make his side of the argument very clear. The lack of questions may simply reflect the clarity in which his point was made.

jcutonilli · Sep 24, 2020

Applehd said:
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.

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

Applehd · Sep 24, 2020

I agree with your previous statement... Mr. Katyal was more clear than Mr. Beck but being a re-hearing, I would suppose the panel should already be familiar with the basic premise of the arguments presented on both sides... :shrug:

777GSOTB · Sep 24, 2020

Sadly, the " [w]here the urgency or the need has been sufficiently indicated " requirement of Hawaii's licensing law was never challenged.

delaware_export · Sep 24, 2020

@jcutonilli... my apologies.

every time you say "the cases are not argued properly" i think... he's full of it.

well, i am coming around to your way of thinking. agree with @press1280.

that was painful.

i wrote up post and deleted it. better that way. hoping the 9th sees through this, but thinking they'll defer to the other districts and the state of hawaii.

press1280 · Sep 25, 2020

777GSOTB said:
Sadly, the " [w]here the urgency or the need has been sufficiently indicated " requirement of Hawaii's licensing law was never challenged.

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.

pcfixer · Sep 25, 2020

jcutonilli said:
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

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.

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

AND..

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.

Even the most Hostile judge can read that. "Good cause restrictions" and gun bans are synonymous. No Deference! Marbury v. Madison.

esqappellate · Sep 25, 2020

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.

777GSOTB · Sep 25, 2020

press1280 said:
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.

Young failed to challenge that section of the law. They'll have to take it up on the follow-up case.

From the Young v Hawaii case :

"The chief of police may, under section 134-9, grant a license for the open carry of a loaded handgun only “[w]here the urgency or the need has been sufficiently indicated” and the applicant “is engaged in the protection of life and property.”

"Young’s argument is straightforward: he asserts that the County has violated the Second Amendment by enforcing against him the State’s limitations in section 134-9 on the open carry of firearms to those “engaged in the protection of life and property”2 and on the concealed carry of firearms to those who can demonstrate an “exceptional case.” 3

2 "Young does not address the additional limitation in section 134-9 providing that an open carry license may only be granted “[w]here the urgency or the need has been sufficiently indicated.” Nor could we evaluate such a requirement at the motion to dismiss stage, absent evidence showing the stringency of the requirement. Thus, we do not decide whether such requirement violates the Second Amendment."

jcutonilli · Sep 25, 2020

pcfixer said:
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.

It is not exactly a ban because there are certain times where a gun can be used.

Wren is not a SCOTUS opinion, it is a DC circuit opinion. While it may be persuasive to another circuit, it is not precedential or controlling like other SCOTUS decisions like Heller and McDonald. There is nothing requiring another circuit to follow a different circuit's precedent.

jcutonilli · Sep 25, 2020

esqappellate said:
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.

esqappellate · Sep 25, 2020

jcutonilli said:
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 facially 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.

jcutonilli · Sep 25, 2020

esqappellate said:
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.

I should clarify my statements.

All of these 2A cases generally boil down to public safety vs the right. SCOTUS has not clearly delineated how to make that determination. This gives the judge much more leeway in making a decisions.

Based on the oral arguments, I see this case being decided on whether the court feels there is some kind of historical precedent in these good-cause laws or whether the right takes precedence. If the good-cause precedent wins, what you have said does not matter. It only matters if they feel the right takes precedence.

It certainly is ultimately up to the judge. The less leeway you give them the more likely they are to decide in your favor.

Young Opening Brief Filed

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