U.S. appeals court: Constitution gives right to carry gun in public

[Styx]

Frank, I read the decision. I'm fully aware of the Majority's opinion, and why they came to their conclusion.

I don't think you understood the gist of my prior posts. What I am saying, and what even you admitted to, is that no evidence was precented into the record pretaining to the carry permit applicants. Yet, the Majority made assumptions based on information that wasn't submitted. The dissenting Judge even made this point, and he isn't wrong.

Again, I read the decision. I know that the Majority disagrees. I know that they believe it to be irrelevant, and I read why. All I was pointing out is that the dissenting Judge does have a point, and when/if ends up in an en banc hearing or even SCOTUS, these are issues that may cause problems in the case.

For example, if in the en banc hearing or at SCOTUS, say the Judges rebuke the opinion that 134-9 is unconstitutional. At that point, they'll may look to see if it's implementation is unconstitutional.

What I'm getting at and all I'm trying to say is that I want them to cross as many t's and dot as many i's before this case gets kicked up.

 

[danez71]

What I am saying, and what even you admitted to, is that no evidence was precented into the record pretaining to the carry permit applicants.

I look at it a little different.

Evidence in the form of Defense testimony was submitted.


Plantif says no one gets permits - defacto ban - Rights violated.

When asked, Defense says, No permits were issued.

It's liken to saying 'Yes, I shot the guy' and not saying '...in self defense because xyz'.

 

[Frank Ettin]

...What I am saying, and what even you admitted to, is that no evidence was precented into the record pretaining to the carry permit applicants....

• Evidence is not presented in an appellate court proceeding. Courts acting on an appeal do not receive evidence. There is no testimony or documentary evidence submitted. Appeals are to decide questions of law, not of fact.
  
  
• If there had been evidence taken in the trial court (e. g., by affidavit in connection with a motion for summary judgment or at a trial) and if the matter brought up on appeal related to the evidence presented in the trial court (e. g., whether evidence was properly admitted or whether evidence was sufficient to support a finding), the appellate court would look at that evidence, but no new evidence would be submitted on appeal.
  
  
• Here there had been no evidence presented in the trial court because the trial court acted on a motion to dismiss. A trial court acts on a motion to dismiss assuming that all factual allegations set out in the complaint are true. Therefore, no evidence is necessary.
  
  
• So here the trial court ruled that as a matter of law, and assuming all factual allegations set out in the complaint are true, the complaint did not set out a legally cognizable claim. The trial court therefore granted the motion to dismiss the complaint. The plaintiffs then appealed that dismissal of their suit.
  
  
• The appellate court considers the points of law, not fact, raised by the appeal. Therefore, the appellate court would not consider new evidence, and no evidence would be offered in the appellate court proceeding.
  
  
• Here the appellate panel first found that there is a constitutionally protected right to openly carry a loaded gun in public for self defense (Peruta had previously decided that there was no constitutionally protected right to carry a gun concealed in public). Therefore, the plaintiffs' claim that the limitations on the issuance of a license to openly carry a gun in public was an impermissible deprivation of that right was a legally cognizable claim which the plaintiffs were entitled to pursue in the trial court.
  
  
• Had the appellate panel stopped there, the lawsuit would have been remanded back to the trial court to go forward. There would have been essentially two issues to be decided at the trial court: (1) whether the manner in which the Hawaii statute was applied resulted in a constitutionally impermissible regulation of the right to carry a gun in public; and (2) whether the Hawaii statute sufficiently furthered a compelling governmental interest in a constitutionally permissible way. Answering these questions would involve determinations of matters of fact requiring the taking of evidence. The evidence would be submitted either by affidavit as part of motions for summary judgment (a matter can be determined by summary judgment based on evidence submitted by affidavit if there is no dispute as to the material facts), or at a trial.
  
  
• But here the appellate panel went a step further. The limitations set out in the Hawaii statute on the issuance of an open carry license were analyzed. The majority of the panel concluded that the statute was unconstitutional on its face. i. e., no matter how that statute was implemented and enforced the limitations would constitute a constitutionally impermissible regulation of the constitutionally protected right to carry a loaded gun in public for self defense. In other words, there would be no way in which the statute could be implemented as written which could pass constitutional muster.
  
  
• And yes, the dissent disagrees. That's why it's a dissent. And O'Scannlain made an attempt to answer the objections of the dissent.

...What I'm getting at and all I'm trying to say is that I want them to cross as many t's and dot as many i's before this case gets kicked up.

In any case we must take the decision as we find it. Another panel might have taken a different approach, but that didn't happen.

 

[LiveLife]

Heart warming background story of one Vietnam vet's fight for the Second Amendment and lone lawyer who took his case for free after 17 attorneys turned him down - https://www.businessinsider.com/r-u...-us-supreme-court-2018-8?yptr=yahoo&r=UK&IR=T

True "David vs Goliath" story.

 

[Officers'Wife]

OK, quick question... since the court has ruled before that "reasonable restrictions" can be placed on the RKBA. Then how many permits and how onerous a process does it have to be before it becomes "unreasonable?" For instance when I was 11 I was declared PINS by the Chicago foster care program because I hit another "child" in the care of my foster parents. Would it be considered "reasonable" to deny my permit on the basis of an event 20 years ago when I was a child? How about the guy that heeded nature's call 20 blocks from the nearest public restroom and urinated in the brush by the Iroquois creek in a downtown area only to discover an off duty city policeman was fishing downstream and found himself convicted for "exposing" himself in the 1970's? How historical can the permit process get before it becomes "unreasonable?"

 

[LiveLife]

I believe your question will be the core discussion if this case goes to SCOTUS. Starting 14:22 minute mark of video of 9th Circuit, judges comments for "law abiding citizen" having the "Right under the Second Amendment" is key to this case IMO as law abiding citizen has the right to self defense (which I believe should apply to both inside and outside of home) and I think was the basis for the case being ruled in favor of the Vietnam vet.

If conceal carry permits are not issued, it's only reasonable to allow open carry so law abiding citizen can defend themselves. If state has an issue with open carry, then they need to allow concealed carry. With 9th Circuit ruling, perhaps SCOTUS will rule that both open and concealed carry are constitutional.


Love the comments from the judges starting 14:22 minute mark of video:

Judges: Reasonable law abiding person is completely prevented/banned [from open carry] ... So essentially only the security guard can open carry outside of home for self defense and protection of life and property (and concealed carry permit issue is nonexistent).

Response: ... um, um

Judge: Do we know how many permits have been issued?

Response: I do not believe any permit has been issued.

Judges "own" the argument with these comments: Typical law abiding citizen ... has the RIGHT under the Second Amendment ... if Second Amendment only extends to security guard, we have a real constitutional problem here. Are you saying Second Amendment does not apply outside of home?

Response: um, um ... yes, I believe so.