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In regards to the chart from your prior post, I think I know the guy who prepared it. He used "CCW" to mean the same thing it means in California "Carry Concealable Weapon" (e.g., a handgun). Nearly everyone thinks it means "Carry Concealed Weapon."

California does have handgun Open Carry licenses available to the general public but they are only theoretically available in counties with a population of fewer than 200,000 people and are only valid in the county of issuance. Both are called CCW licenses in California.

The state's attorney you saw in the video clip fumbling his oral argument has been replaced with attorney Neal Kumar Katyal. Do not expect him to make a shambles of his oral argument like his predecessor did.

Neal Katyal - Wikipedia

I suspect that Katyal will stick to his "script" which is to say his en banc petition, notwithstanding questions asked by the panel.

https://michellawyers.com/wp-conten...Hawaii_Petition-for-Rehearing-En-Banc_155.pdf

There are many problems with Katyal's argument but even if we accept that Intermediate Scrutiny applies, as four other Federal circuit court of appeals have held, the states in those other circuits actually issue handgun carry permits to the general public. Hawaii's law, H.R.S. 134-9 allows for a de facto ban on the issuance of carry permits to the general public, and there is no way to square that with Intermediate Scrutiny.

Also, Intermediate Scrutiny requires the state to present evidence in support of the law. The procedural posture of Mr. Young's appeal is that his case was dismissed by the district court judge, on a motion to dismiss, without leave to amend and without the state submitting any evidence.

A similar thing happened in the 7th circuit court of appeals in Moore v. Madigan. That did not turn out very well for the State of Illinois.

Ah! I see they changed the application to include "open/concealed" on the HPD website.

Either way, I would not own a firearm here. I am a physician who does the mental health clearances for firearms here in Hawaii and I do not believe in signing away access to medical records to the state. I've also seen the local police on the Big Island abuse the process and require people to get a mental health clearance who had absolutely nothing in the records to prompt it. It seems the police just do that to people they dont like and until recently there wasnt any physician here who cleared people. I even called the firearm division here to ask what my power was as a physician and they said that I'd just have to call up and they would cancel a persons firearm permit for any reason just on my say. I dont believe in physicians having power over a right like that.
 
Live streaming of the en banc oral argument begins at 1:30 PM Pacific Time


If you miss it then the link will be dead. However, an archived version will be uploaded later in the day to the 9th circuit court of appeals YouTube channel.


Interesting hearing the judge ask him what the English common law was for open carry before the US existed and didnt like the attorney stating Heler's results. I know I dont understand legalese, but it is interesting hearing judges discussing laws that existed prior to the US existing.

I'm only catching bits of this since Im at work, but at least during the questioning period it certainly seems like a lot of personal opinion is coming out from the judges rather than a non-biased position one would except from a judge.
 
Interesting hearing the judge ask him what the English common law was for open carry before the US existed and didnt like the attorney stating Heler's results. I know I dont understand legalese, but it is interesting hearing judges discussing laws that existed prior to the US existing.

I'm only catching bits of this since Im at work, but at least during the questioning period it certainly seems like a lot of personal opinion is coming out from the judges rather than a non-biased position one would except from a judge.

The English law question came from Judge Bybee who also sits on my panel. It is interesting that he would pose the question because the only English laws he can be referring to were English hunting laws that were used to ban the bearing of arms, English laws regarding dangerous and unusual weapons, and English laws prohibiting Catholics from bearing arms.

These bans did not apply to the upper class. Landowners could hunt on their own lands, "dangerous and unusual" was a class-based distinction where the case law was clear (e.g., Armor, broadswords, handguns, and privy coats of mail) or murky (crossbows) or unknown (Launcegays, which are short pointy spears with a bow or ribbon attached).

Regardless, Alan Beck argued his case very well. I am impressed.
 
Interesting, but does that have any bearing whatsoever? And yeah, personal opinions from judges is becoming the norm, and nobody to blame except the voting block.
 
The English law question came from Judge Bybee who also sits on my panel. It is interesting that he would pose the question because the only English laws he can be referring to were English hunting laws that were used to ban the bearing of arms, English laws regarding dangerous and unusual weapons, and English laws prohibiting Catholics from bearing arms.

These bans did not apply to the upper class. Landowners could hunt on their own lands, "dangerous and unusual" was a class-based distinction where the case law was clear (e.g., Armor, broadswords, handguns, and privy coats of mail) or murky (crossbows) or unknown (Launcegays, which are short pointy spears with a bow or ribbon attached).

Regardless, Alan Beck argued his case very well. I am impressed.


I could not catch all of it. Interesting to hear arguments and questions from attorney's and judges and compare it to the ways we think and support conclusions in medicine. If this was a patient they were talking about who's life was on the line, at least half of them would be terrible physicians. The state's attorney would be reported to the board for not meeting the standard of care needed to take care of a patient. So much bias. In medicine we have very strong controls against opinion and bias, huge amounts of skepticism for claims that do not come with proven high quality science behind it. I bet I can tell how 2 of those judges will rule by just one question they asked. If we treated patients based on how these people argue what treatment to use, we'd have piles of dead bodies.

Now I know law and science are completely different. I'm just surprised at to the level of biased interpretation and arguments that could be made. I've heard better science arguments from quacks on why their snake oil works.

It certainly helps so see how laws and interpretations by judges seem to flow all over the place over time and location and how they end up in completely different places than where they started. Completely different than medicine. Quite frankly, it is more terrifying than I thought. No wonder this country and it's society is garbage. (no offence, just my opinion)
 
No wonder this country and it's society is garbage. (no offence, just my opinion)

No offense taken.

The problem with the law, among many problems, is that lawyers are allowed to lie. Theoretically, they aren't allowed to encourage others to lie but if Hannibal Lector is their client, and the lawyer personally witnessed Lector eating a foot, the lawyer is still free to argue that his client is a vegetarian. And if video suddenly turns up showing Lector eating the foot, the lawyer is still free to argue that simply eating one foot does not make his client a cannibal. And besides, there is no way to prove that the foot wasn't actually made out of tofu because there is no evidence to prove that it was a human foot.

In short, lawyers are paid to lie. Everyone in that "courtroom" knows it. Especially the judges as they all began as lawyers.
 
In short, lawyers are paid to lie. Everyone in that "courtroom" knows it. Especially the judges as they all began as lawyers.

So foreign to medicine. You lie in medicine every doctor you know will crucify you. You get sued (how ironic), you lose your license, your credibility, your job, everything. If a doctor lied to me about a patient we had in common I'd be on the phone to the board of medicine before we finished the conversation. We drill that into students. Most important part of starting wards as a student? DONT LIE.

And quoting law from 1300's. You could see how foreign that would be to a physician. I'd be in trouble if I used some treatment from 2 years ago if a better one was available.

I probably should not have watched that. Ignorance is probably better. No wonder we can determine how a supreme court judge will rule before they even hear the case....
 
The English law question came from Judge Bybee who also sits on my panel. It is interesting that he would pose the question because the only English laws he can be referring to were English hunting laws that were used to ban the bearing of arms, English laws regarding dangerous and unusual weapons, and English laws prohibiting Catholics from bearing arms.

These bans did not apply to the upper class. Landowners could hunt on their own lands, "dangerous and unusual" was a class-based distinction where the case law was clear (e.g., Armor, broadswords, handguns, and privy coats of mail) or murky (crossbows) or unknown (Launcegays, which are short pointy spears with a bow or ribbon attached).

Regardless, Alan Beck argued his case very well. I am impressed.
We disagree with your assessment of Alan Beck's presentation. We're hoping his strength lies in his written submissions in addition to the opinion of the 3 judge panel.

It does seem clear that the COUNTY regulations will be struck down as unconstitutional. It also seems clear that the 9th will hold our 2A right to carry for self defense will be acknowledged. There are two concerns.

First is that the Court will simply strike down the Hawaii COUNTY regulation in its entirety while not addressing the Hawaii STATE statute itself. That would apply to that particular county ONLY, allowing the more open STATE statute to stand unless challenged otherwise.

Second would be to void the COUNTY statute while also remanding the case down to Hawaii to revist its restrictions due to being vague or overly broad. In that case they'd perhaps issue a stay until the state could revise its statute. When you don't issue ANY permits your arguments simply can't support muster.

There were lots of holes in Beck's responses so we'll have to see how the Court responds in its internal discussions.
 
The courts need to affirm our rights to carry in public.

If I head down to California or over to Hawaii, I have no legal way to carry a firearm statewide. I can't open carry, I can't get a CCW. So when I head to California I'm DISARMED once I'm out of my vehicle. We carry a shotgun in our vehicle when in CA.

That inability to carry is unconstitutional on its face. I know that there are pending cases to fight this but I'm not aware of any at this moment. The 9th needs to declare a right to open or concealed carry and leave it at that. SCOTUS should be tilted right soon so these cases should no longer be avoided by them.

We'll see what comes of it.
 
We disagree with your assessment of Alan Beck's presentation. We're hoping his strength lies in his written submissions in addition to the opinion of the 3 judge panel.

It does seem clear that the COUNTY regulations will be struck down as unconstitutional. It also seems clear that the 9th will hold our 2A right to carry for self defense will be acknowledged. There are two concerns.

First is that the Court will simply strike down the Hawaii COUNTY regulation in its entirety while not addressing the Hawaii STATE statute itself. That would apply to that particular county ONLY, allowing the more open STATE statute to stand unless challenged otherwise.

Second would be to void the COUNTY statute while also remanding the case down to Hawaii to revist its restrictions due to being vague or overly broad. In that case they'd perhaps issue a stay until the state could revise its statute. When you don't issue ANY permits your arguments simply can't support muster.

There were lots of holes in Beck's responses so we'll have to see how the Court responds in its internal discussions.
I read every published and unpublished opinion in the 9th circuit court of appeals from before I filed my lawsuit in 2011 and my oral argument in February of 2018, as well as thousands more.

The one thing I learned is judge-made procedural law. True, the en banc panel is not bound by the circuit procedural law to date but to disregard that body of law that has accumulated over the decades sends a bad signal to the subsequent three-judge panel that relies on that mountain of law. I did not see or hear anything in the oral argument that would lead me to believe that the en banc panel is going to blow up that mountain of procedural law.

I have been highly critical of Mr. Beck in the past but I was very impressed with his oral argument today. I don't have the words to express my surprise at how well he did.

The county regulations are unconstitutional, the State did not dispute that. However, the County regulations being unconstitutional, and 50 cents won't get Mr. Young a cup of coffee, let alone his permit. And it does not necessarily make the state statute unconstitutional. It would if the panel were to conclude that the state law allowed the county to enact what the state admitted was an unconstitutional county policy but that would take six votes and I don't count six votes to do that. I hope I'm wrong. We'll see.

Yes, one thing the panel can do is to remand the case back to the district court. But it would do so without deciding either the 2A or 14th Amendment due process questions raised in the appeal, and so there would not be a stay. I think Beck deftly averted that by his references to the Complaint and opposition to the motion to dismiss. However, it is still a possibility and a remand happened with the Nordyke v. King case more than once.

If the panel just looks at the text of the H.R.S. 134-9 then it absolutely can uphold the Hawaii law because the text of the statute does not prohibit the issuance of handgun Open Carry licenses, or even concealed carry licenses. Four other circuits have upheld "good cause" requirements under Intermediate scrutiny for a permit to carry a handgun in public. This panel can easily go with the majority of circuits.

Another thing that the Court doesn't do is to consider new issues raised on appeal (they can but they don't). Also, they do not consider cases where the party does not have standing, even though there was in this past year where the court of appeals dismissed the appeal for lack of standing AND published a decision on the merits.

Judge Friedland argued to her colleagues that Mr. Young does not have standing to raise a procedural due process clause and Mr. Beck shot her down, beautifully (assuming that his citations are valid). As you could tell by the look on her face.

In any event, all I need to prevail is for the en banc panel to conclude that the right to keep and bear arms extends beyond the doors to our homes, no matter how watered down that right might be because, under California law, the bans are statutory and without exception to people who live in incorporated cities and to prohibited areas of unincorporated county territory. And since Young does not challenge the permit requirement, the en banc panel can't decide whether or not permits are constitutional. They can only decide if there is a right to a permit, and whether or not the applicant must show a heightened need for the permit.

Handgun Open Carry permits are theoretically available in counties in California with a population of fewer than 200,000 people, and they are only valid in the county of issuance. There is absolutely no amount of "good cause" I can show to obtain the California license. They simply do not exist for me or for anyone else outside of those counties.

Thank you for the compliment on my interview. My hair is no longer as brown as in the video and I have much less of it. The video was made in late 2011. More than a few years have passed since then.
 
The courts need to affirm our rights to carry in public.

If I head down to California or over to Hawaii, I have no legal way to carry a firearm statewide. I can't open carry, I can't get a CCW. So when I head to California I'm DISARMED once I'm out of my vehicle. We carry a shotgun in our vehicle when in CA.

That inability to carry is unconstitutional on its face. I know that there are pending cases to fight this but I'm not aware of any at this moment. The 9th needs to declare a right to open or concealed carry and leave it at that. SCOTUS should be tilted right soon so these cases should no longer be avoided by them.

We'll see what comes of it.

The 9th already held in Peruta v. San Diego en banc that concealed carry is not a right as per the Heller decision and as per 475 years of American and English law. There are not six votes on the panel to overrule Peruta en banc. Mr. Beck cleverly did not argue that he has a right to concealed carry, he argued that his client would accept a concealed carry permit in the alternative (satisfying his Prayer for Relief).

We will have to wait to see who Trump nominates and whether or not she is confirmed. There is no doubt in my mind that so will the members of the Young v. Hawaii en banc panel. Reinhardt is the only judge I know of who didn't mind having his decisions overturned. He reportedly said something along the lines of, "They (SCOTUS) can't catch them all (his decisions that conflicted with SCOTUS)."

And Reinhardt is dead.

Come to think of it, if Trump gets the right nominee confirmed then there just might be six votes to remand the case back to the district court without deciding either the 2A or 14th Amendment claims. That way, the 9th circuit judges on the panel who don't like the 2A don't have to risk having their decision overturned by SCOTUS and having the right to bear arms apply to every state.
 
The 9th already held in Peruta v. San Diego en banc that concealed carry is not a right as per the Heller decision and as per 475 years of American and English law. There are not six votes on the panel to overrule Peruta en banc. Mr. Beck cleverly did not argue that he has a right to concealed carry, he argued that his client would accept a concealed carry permit in the alternative (satisfying his Prayer for Relief).

We will have to wait to see who Trump nominates and whether or not she is confirmed. There is no doubt in my mind that so will the members of the Young v. Hawaii en banc panel. Reinhardt is the only judge I know of who didn't mind having his decisions overturned. He reportedly said something along the lines of, "They (SCOTUS) can't catch them all (his decisions that conflicted with SCOTUS)."

And Reinhardt is dead.

Come to think of it, if Trump gets the right nominee confirmed then there just might be six votes to remand the case back to the district court without deciding either the 2A or 14th Amendment claims. That way, the 9th circuit judges on the panel who don't like the 2A don't have to risk having their decision overturned by SCOTUS and having the right to bear arms apply to every state.
In lieu of the current state of the burning American landscape (rioting), I expect one of two things. The Court will shock the nation by declaring an uninhibited right to bear arms outside the home, open or concealed, or remand for correction.

SCOTUS overturns the 9th 80% of the time. With a new 2A friendly justice we'll begin to see some of these cases taken on, as Peruta should have been. Maybe Roberts will even come along.

Peruta was poorly argued en banc as well. Where do they find these guys?
 
In lieu of the current state of the burning American landscape (rioting), I expect one of two things. The Court will shock the nation by declaring an uninhibited right to bear arms outside the home, open or concealed, or remand for correction.

SCOTUS overturns the 9th 80% of the time. With a new 2A friendly justice we'll begin to see some of these cases taken on, as Peruta should have been. Maybe Roberts will even come along.

Peruta was poorly argued en banc as well. Where do they find these guys?

I'm beginning to think that a remand without deciding is the most likely outcome.

Peruta en banc was argued by Paul Clement, a former Solicitor General in the George W. Bush administration who has argued more cases before SCOTUS than any other living attorney, or so I hear. Last term, Chief Justice Roberts acknowledged his record after he argued one of his cases.

Choosing Clement was a really dumb idea. It was Clement who argued as Solicitor General in Heller for SCOTUS not to decide the decision but to remand the case. Clement also argued in Heller that concealed carry is not a right and that if the court does issue a decision then the decision should be one that does not imperil any Federal gun-control law.

In light of his record, as far as the panel was concerned, Clement was just another professional liar arguing his client's case.
 
I'm beginning to think that a remand without deciding is the most likely outcome.

Peruta en banc was argued by Paul Clement, a former Solicitor General in the George W. Bush administration who has argued more cases before SCOTUS than any other living attorney, or so I hear. Last term, Chief Justice Roberts acknowledged his record after he argued one of his cases.

Choosing Clement was a really dumb idea. It was Clement who argued as Solicitor General in Heller for SCOTUS not to decide the decision but to remand the case. Clement also argued in Heller that concealed carry is not a right and that if the court does issue a decision then the decision should be one that does not imperil any Federal gun-control law.

In light of his record, as far as the panel was concerned, Clement was just another professional liar arguing his client's case.
Clement demonstrated his total lack of grasp of 2A issues.

Courts 'remand' in an effort to escape review while keeping it under their own roof. Easy way out. My concern is that they'll ONLY negate the Hawaii County regulation while letting everything else in Hawaii stand. Mr. Young's problem resolved, wipe their hands, wait for the next challenge ten more years from now (except Mr. Young may be dead by that point in time).

Charles, I had a look at your filings over the years on your current case. Damn. Tons of work there. Have you approached GOA or any of the others for legal assistance? I know you stated that SAF and NRA are not open carry friendly.

For others, his GoFundMe page is here. He may be California based but his case is relevant to us all:

 
SAF is not open-carry friendly? Ouch.
Okay, well we need another conservative justice on the SCOTUS, if for no other reason than to counter Roberts, who has apparently nominated himself as rudder of the court.
 
Clement demonstrated his total lack of grasp of 2A issues.

Courts 'remand' in an effort to escape review while keeping it under their own roof. Easy way out. My concern is that they'll ONLY negate the Hawaii County regulation while letting everything else in Hawaii stand. Mr. Young's problem resolved, wipe their hands, wait for the next challenge ten more years from now (except Mr. Young may be dead by that point in time).

Charles, I had a look at your filings over the years on your current case. Damn. Tons of work there. Have you approached GOA or any of the others for legal assistance? I know you stated that SAF and NRA are not open carry friendly.

For others, his GoFundMe page is here. He may be California based but his case is relevant to us all:

Clement has no moral center or compass. It was, after all, the NRA that helped write the 1967 Californa Loaded Open Carry ban, and endorsed its passage. It should not come as a surprise that the NRA would be in court, decades later, fighting to uphold the ban.

Even if Clement had wanted to argue an Open Carry case or even simply that there is a right to carry, the plaintiffs never sought to openly carry any firearm, anywhere, for any reason, let alone a plan that would violate California's Open Carry bans. In short, the Plaintiffs did not have standing to argue for Open Carry or, as Beck argued, simply to carry in some manner. Mr. Young has standing for both open and concealed carry because he asked for both open and concealed carry permits and was denied both.

The NRA currently has a case on appeal that is stayed that makes the same argument that it made in Peruta v. San Diego, namely states can ban Open Carry in favor of concealed carry. That is also the same argument that it made in McKay v. Hutchens, and lost.

The case is Flanagan v. Becerra. When the NRA announced the filing of the case, it claimed it was a "carry" case. There was only one thing in the Complaint which suggested that it was also an Open Carry case, a line copied and pasted from my Complaint, namely the lawsuit sought a Declaration that Open Carry is the 2A right.

The Flanagan case also sought to enjoin the subsection of the state statute that provides for handgun Open Carry permits. That is an odd thing to do because if it had achieved the injunction then there would not be any way to obtain a handgun Open Carry license from a County Sheriff anywhere in the state, let alone in Los Angeles County where the plaintiffs resided. One could argue that it was a typo and the Complaint should be liberally construed to read that the NRA didn't mean to eliminate Open Carry permits but instead simply meant to challenge the prohibition on issuing handgun Open Carry permits in Los Angeles County but the NRA did not ask that the Plaintiffs be given Open Carry licenses. Furthermore, the plaintiffs would disavow any plan to openly carry firearms for any reason in their depositions, and in any event, whatever Open Carry claim one might have read into the case was forfeited by the NRA in both hearings and in the NRA's motion for summary judgment.

The SAF was the first one I approached, followed by the NRA, and every other so-called gun-rights group you might think of. I even approached a former CalGuns.nuts lawyer whom I had a cordial relationship with prior to the three-judge panel decision in Peruta v. San Diego. I had told him that the three-judge panel decision would be vacated, the case would be taken en banc and Peruta would lose followed by SCOTUS denying his cert petition.

Some folks just can't handle the truth.

The little "help" I got was from a lawyer I hired for a lot of money who turned around and farmed out the writing of an opposition to dismiss my Complaint to a paralegal for very little money just hours before the brief was due. The paralegal did a fantastic job considering how little time he had to write the brief. There were three significant errors in his brief but the state's attorney did not notice them and so it did not matter.

I did get a little pro bono help from an attorney before filing my lawsuit. He quizzed me for a couple of hours over the phone and complimented me on how much I knew about the case law surrounding my eventual claims as well as the Federal Rules of Civil Procedure and the judge made procedural law in my circuit.

He said the only thing I needed to work on is The Federal Rules of Evidence and courtroom trial procedures. The Federal Rules of Evidence were fairly trivial, as I recall, in civil cases. I was just beginning my study of courtroom trial procedures when my case was dismissed at the pleading stage on a motion for judgment on the pleadings.

There really wasn't much to argue at trial even if my case had gone to trial.
 
So it sounds like NRA and SAF have placed their bets on concealed vs open carry. Why? Why not both? I'm sure the answer lies in some politically-laden excuse, but to the average Joe, this does not bode well.
 

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