Small win for us - Young v Hawaii - CCA9

[Aguila Blanca]

I followed the Peruta case closely where the 9th en-banc panel ruled the right to carry concealed outside the home was not protected under the second amendment . Interestingly enough the 3 judge panel decision that prompted the en-banc to be called was authored by the same judge that authored this Hawaii decision . So the 9th has already ruled concealed carry is not protected in Peruta . So the judge in this case took that as precedent and ruled If conceal carry is not protected outside the home then open carry must be .

This brings up the question if the en-banc panel rules open carry is not protected either . That leaves a clear split between the DC circuit and the 9th circuit which the SCOTUS in theory must resolve .

If they rule that open carry is also not protected, then they will be moving from "regulation" [of the mode of carry) to outright prohibition of all modes of carry. I would like to hope that would be a tough sell.

 

[Metal god]

If they rule that open carry is also not protected, then they will be moving from "regulation" [of the mode of carry) to outright prohibition of all modes of carry. I would like to hope that would be a tough sell.

I'd hope it a hard sell as well . Why can't they just say using "good cause" for both open and concealed is good enough ? I think the one issue with that is the fact Hawaii uses the good cause scheme but has not issued a carry license in years or so few it might as well be none . So how can the court think good cause is acceptable if Hawaii thinks not one person in there jurisdiction has good cause ?

Another thing I've not followed to close is Trumps appointments to the 9th . Has there been any and how pro gun have they been ? It's my understanding the en-banc panel is chosen randomly from the pool of judges at the 9th . If are side has a few more judges to pick from , maybe it won't be a forgone conclusion that we will end up with a hostel panel ??

 

[Aguila Blanca]

In this case we got a friendly (or at least sympathetic) panel that ruled the way we think they should have ruled. The question is whether orr not that will stand if the state of Hawaii appeals for an en banc hearing.

Question for the lawyers -- is an en banc hearing based on the record of the panel hearing, or is it de novo?

 

[Metal god]

Just got to thinking ( that's never good ) . If they let this case go back . does that mean this opinion is now precedent to all lower courts ? Once it goes back down this specific ruling can no longer be appealed correct ?

If so I may want to take back everything I just wrote in my last post . There's no way the anti's want this to become binding precedent so they'll need to appeal now correct ???

The en-banc as far as I know is based on the record it does not start over . I say this because during the Peruta en-banc one of the lawyers on are side brought up a great point but one of the judges stopped him because it was never brought up before and not part of the record .

See 24:40 thru 29:30 specifically at 28:00
https://www.youtube.com/watch?v=anKfVru1des

 

[Metal god]

What happens when we actually get the right to carry outside the home and must enter a gun free zone like schools and federal/state buildings like DMV or SS office . Now with federal buildings they generally have security to protect me because they are requiring me to be unarmed even though I have a right to carry for self defense outside my home . What about other areas where there is little to no security and yet I can not properly defend my self do to it being a gun free zone .

Some of these gun free zones we all have to enter at some point in our lives . Maybe not every day but every day people do have to enter these gun free zones . If a person is required to be unarmed . I say unarmed because often these gun free zones are also knife free and pretty much any other traditional weapon free zones . Should they be required to have reasonable security at/in any gun free zone .

God forbid something happens but at some point it will to someone . If it is found to be constitutional to carry for self defense and a person is injured/shot in a gun free zone . Who is liable and or picking up the check for that persons hospital bill or family income ? It seems to me you can't have all three . Right to carry for self defense , gun free zones and the company , government or who ever that implements the gun free zone not reasonably responsible for everyone's safety in those zones ?????

 

[Spats McGee]

. . . .Just got to thinking ( that's never good ) . If they let this case go back . does that mean this opinion is now precedent to all lower courts ? Once it goes back down this specific ruling can no longer be appealed correct ? . . . .

The en-banc as far as I know is based on the record it does not start over . I say this because during the Peruta en-banc one of the lawyers on are side brought up a great point but one of the judges stopped him because it was never brought up before and not part of the record . . . .

A few quick points on appellate cases:
1. The 9th Circuit's decision is binding precedent on all lower courts within the 9th Circuit. It is persuasive (but not binding) on other circuits.
2. As a general rule, if an issue isn't raised "below" (at the trial court level), you can't raise it on appeal. There are a few exceptions to this, like jurisdiction. I'd have to go do some research this again, but I'm pretty sure that jurisdiction can be raised at any time here in the 8th Circuit.
3. Generally (again), you only get to raise an issue on appeal once. If you raise an issue and get an adverse ruling from the trial judge, you can raise that as a point on appeal.

 

[vicGT]

Who is liable and or picking up the check for that persons hospital bill or family income ? It seems to me you can't have all three . Right to carry for self defense , gun free zones and the company , government or who ever that implements the gun free zone not reasonably responsible for everyone's safety in those zones

Heller seemed to say such laws were constitutional:

nothing in our opinion should be taken to cast doubt on longstanding prohibitions...forbidding the carrying of firearms in sensitive places such as schools and government buildings,

but I don't know if that tells us anything about liability. Laws allowing us to build new homes are probably not going to run afoul of the constitution, but if the homes are built negligently, there can still be liability, right? So maybe the devil would have to be in the details, and we can't make a sweeping statement about liability in all possible situations?

1. The 9th Circuit's decision is binding precedent on all lower courts within the 9th Circuit.

Can I ask you if you know if, once final, and assuming it's not oveturned en banc, it will be binding on other 3-judge panels within the 9th? So not lower, not on en banc panels which I suppose are "higher", but at the same level?

I may have been led to the answer over on CalGuns, which might be:

Only the en banc court can overturn a prior panel precedent. See Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003) (per curiam) (“[W]here a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.”) (internal quotations omitted); Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) (“Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court . . . . [A] later three-judge panel considering a case that is controlled by the rule announced in an earlier panel’s opinion has no choice but to apply the earlier adopted rule; it may not any more disregard the earlier panel’s opinion than it may disregard a ruling of the Supreme Court.”).

[6] The law of the circuit rule, of course, has an important exception: a panel may disagree with the circuit precedent when intervening Supreme Court decisions have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)

of course, that is itself an opinion in a case, so I'm not sure if it holds any real weight.

 

[Metal god]

UPDATE

Hawaii ask for an extension to file an appeal . They want to bring in outside counsel but that must be approved by there city council .

https://www.scribd.com/document/385157878/Young-Extension-Motion-County

There are some interesting conversations going on about if they even should appeal . There are some states back east that would not like to see this go to the SCOTUS because they may end up having to pass a shall issue statute like DC had to do . The theory is Bloomberg and the like may push Hawaii to drop any appeal . The fly in the ointment is the 9th and whether they will call for en-banc on there own like they did in Peruta .

 

[Aguila Blanca]

There are some interesting conversations going on about if they even should appeal . There are some states back east that would not like to see this go to the SCOTUS because they may end up having to pass a shall issue statute like DC had to do . The theory is Bloomberg and the like may push Hawaii to drop any appeal .

That's interesting in its own right. If true, it shows that the eastern "elites" like Bloomberg know they're in the wrong, and fear having their cherished anti-gun laws held up to the light of day (i.e. SCOTUS review).

Obviously, that would change in a heartbeat if they were able to stack the SCOTUS with anti-gun, anti-Constitution, "living document" justices.

[Edit to add] It appears that, by declaring that they ["the County"] require a significant extension of time in which to research the important facts pertaining to the case, counsel for the County essentially acknowledge that they failed to prepare properly for the first hearing. This suggests that they thought the case was a walk-over, and only now that they've lost are they beginning to take it seriously. So now they require an extension, and outside assistance, to perform the work they should have performed prior to the first hearing.

 

[wolfwood]

the en banc response was filed

https://www.scribd.com/document/392...4ChJatA-kgFtROa3Os55CWCGrJ7QqdByxrcvrwPGVjcTg

 

[Dano4734]

We need a federal carry license. Too many states with too many different laws

 

[Armed_Chicagoan]

We need a federal carry license. Too many states with too many different laws

That's my view, but sadly it seems half of the people supporting gun rights have a knee-jerk response against any action at the federal level, fearing that antis will use it to restrict their rights. As if the antis ever needed any such incentive to pass restrictive gun laws at the federal level, and we are now seeing Pelosi calling for just that.

This is why we lose, if we refuse to step forward at the federal level the only possible direction to go is backward. Until even those of us in the "good" states are affected by draconian gun laws. We are our own worst enemy, as soon as you concede an enumerated Constitutional right as really a states' rights issue we have lost, because the antis don't feel that way at all.

 

[steve4102]

the en banc response was filed

https://www.scribd.com/document/3926...yxrcvrwPGVjcTg

So what does it all mean/say?

 

[Aguila Blanca]

The response isn't a decision, it's just the appellant's brief stating why he doesn't think the state has a case. Basically, the appellant argues that there isn't really a circuit split on this issue (as the state argued), and therefore the state is "estopped" (prohibited) from appealing the decision.

 

[Spats McGee]

One slight correction to AB's post: The estoppel issue wasn't due to a circuit split or lack thereof. According to the appellant, the State was estopped from arguing what it wanted to on appeal because that position was inconsistent with what they'd argued before. A party can't spend several years arguing "The law means X," and then turn around on appeal and claim "The law means Not-X."

The quoted scribd link sends me to a removal notice, "due to suspected copyright infringement." The link in Post #50 does not do so.

 

[Aguila Blanca]

Thanks for the correction, Spats. I'm sure I have mentioned before that I'm not a lawyer. Now we see why.

I had the same issue with the links.

 

[JERRYS.]

my limited understanding about this is that the higher court did not decide in favor of the people's right to keep and bear arms; it instead stated that the lower court's ruling is incorrect and that the same court needs to rewrite their version of the law....