Young Opening Brief Filed

press1280 said:

There are some states that are general carry permits. I would not be surprised if CA and HI go to this if OC is ruled "the right".

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Occam said:

And it wouldn't surprise me for a second to see such a permit coming with Good & Sufficient strings attached, just like we have.

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teratos said:

I don't think they will be able to do that. HI is a "may issue" state. They just never issue. The ruling says "may issue" is a no-go.

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“The panel’s dangerous decision reveals the hypocrisy of so-called ‘originalist’ interpretations of the Second Amendment. In order to find that there is a constitutional right to openly carry firearms, a conclusion no other federal appellate court has reached, the Young panel ignored the weight of historical evidence and Ninth Circuit precedent concluding that strong laws restricting the public carry of firearms are consistent with the Constitution and have been so since the moment America was founded. We hope that the full Ninth Circuit will take up this important issue, reverse the panel’s outlier ruling, and uphold Hawaii’s open carry laws.”

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In a huge decision authored by Judge O'Scannlain, a split panel of the Court of Appeals for the Ninth Circuit has ruled that Hawaii's ban on open carry outside the home in that state violates the Second Amendment under any level of scrutiny.* The decision,*Young v. Hawaii,*can be found*here.* The decision is very scholarly, carefully reasoned and a powerful statement that the Second Amendment is not a "second-class" right or a constitutional "orphan."**

The*Young*court expressly agreed with the D.C. Circuit's holding in*Wrenn*that the Second Amendment applies outside the home no less than it applies inside the home.* The opinion also held that every law-abiding citizen enjoys this right of self-defense outside the home, not merely those who can show a special need.* As the court stated, "[a]n individual right that does not*apply to the ordinary citizen would be a contradiction in*terms; its existence instead would wax and wane with the*whims of the ruling majority."***While the court did not directly purport to go into conflict with the*Woollard*case, which sustained the "good and substantial reason" requirement for carry permits imposed by Maryland law, the court's reasoning that the Second Amendment applies to every law-abiding citizen directly contradicts the entire premise on which Maryland law is based.

The court also ruled that the Hawaii statute that technically allowed for concealed carry with a permit was not an adequate substitute because counsel for Hawaii admitted in open court that Hawaii*never*grants such permits.* The court thus concluded that Hawaii has effectively and completely banned carry outside the home and that such a ban was categorically unconstitutional.* This is a very big ruling, akin to the Seventh Circuit's decision in*Moore v. Madigan*that Illinois could not ban public carry.* It remains to be seen whether Hawaii will seek en banc review by the 9th Circuit or, failing that, Supreme Court review.* The decision certainly sharpens the split in the circuits.**The court's analysis is a wonderful contribution to this area of law that is sure to influence future cases.* We will bring you updates as they occur.*

What does this mean for Maryland?* Directly, not much, as Maryland sits in the Fourth Circuit which has already sustained Maryland's "good and substantial reason" against a facial challenge in*Woollard.* However,*Woollard*has been directly challenged in a pending district court case which was filed specifically to seek to have*Woollard*overturned by the Supreme Court. That case is still pending.* The powerful opinion in*Youngwill help formulating the arguments to present to the Supreme Court in that case as well as cases pending elsewhere, any one of which might land in the Supreme Court. These cases seek to take advantage of the split in the circuits created by the D.C. Circuit's decision in*Wrenn,*where the court struck down as unconstitutional DC's "good reason" requirement for carry permits.*The wheels of the law grind slowly.

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krucam said:

Gifford's Group response to Young:

https://giffords.org/2018/07/9th-circuit-open-carry-statement/

Nothing surprising in it except that her Chief Counsel is stating that:


Please, please, please do it...

Edit: Congress Critter from Hawaii calling for en banc....please, please, please...
https://hanabusa.house.gov/media-ce...ngresswoman-hanabusa-statement-young-v-hawaii

EditII: Los Angeles Times Editorial Board calls for en banc...
http://www.latimes.com/opinion/editorials/la-ed-gun-control-9th-circuit-20180726-story.html

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Sealion said:

I'm not a lawyer, so be gentle..are you saying go en banc so it gets overturned and then heads to SCOTUS where we might get the big win we need?

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krucam said:

That is what is so delicious about these scenarios. It isn't just HI impacted, CA has a lot of skin in this game too.

- If HI takes the hit and goes shall-issue Permit, the CA9 ruling stands and CA will eventually be forced to shall-issue. There may be pressure from the Brady's and other .orgs to do this to minimize the damage to HI and eventually CA.

- HI requests en banc. There will be some pressure from CA, some of the Brady's etc to do this, with hopes of undoing the panel decision. However, CA9 has painted themselves into a corner due to Peruta II. Doubt they grant en banc unless they know they have the Judges to overturn the panel ruling. Assuming this happens (en banc may take a year) and the panel ruling is overturned, this would be one juicy case for the Supreme Court to pick up.

- The Panel ruling and en banc decision might be Stayed pending a potential Rogers (CA3/NJ) petition in a couple months as well...the Circuit split has certainly widened with Wrenn & Young decisions.

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krucam said:

Yes. I’m confident SCOTUS would take and overturn Hawaii’s ban and it would the be the law of the land...

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swamplynx said:

Let’s all hope that when that day comes, Roberts doesn’t pull an Obamacare.

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Mr H said:

Just off the top of my pinhead (and I know that CA9 isn't authoritative here), but isn't RI almost identical to HI in their approach to carry?

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Sealion said:

I'm not a lawyer, so be gentle..are you saying go en banc so it gets overturned and then heads to SCOTUS where we might get the big win we need?

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krucam said:

Yes. I’m confident SCOTUS would take and overturn Hawaii’s ban and it would the be the law of the land...

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krucam said:

Absolute best case scenario is Hawaii appealing directly to the Supreme Court, having en banc denied.

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777GSOTB said:

Not to diminish Wolfwoods accomplishments here, but this case is a hollow victory since the requirements of 134-9, " where the urgency or the need has been sufficiently indicated.", was never challenged...Hawaii will use little effort in it's legalese, most likely what they did at panel orals knowing the panel makeup, just to extent the length of time to final judgement. They have nothing to lose with this strategy, as they will win on the merits or win by issuing permits that require "urgency and need", which no one will be able to meet. In other words, right back to the drawing board with a new case.

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.

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777GSOTB said:

Not to diminish Wolfwoods accomplishments here, but this case is a hollow victory since the requirements of 134-9, " where the urgency or the need has been sufficiently indicated.", was never challenged...Hawaii will use little effort in it's legalese, most likely what they did at panel orals knowing the panel makeup, just to extent the length of time to final judgement. They have nothing to lose with this strategy, as they will win on the merits or win by issuing permits that require "urgency and need", which no one will be able to meet. In other words, right back to the drawing board with a new case.

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.

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