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

[Hasaf]

To avoid creating a thread-jack I posted a reply to this in its own thread.

There’s a simple fix. Mandate that be a course in high school. A whole semister, one period a day senior year. Actual range shooting would be too big of hassle. But laws and Regs, safety training, tactical theories and stuff, general firearm knowledge like cleaning and maintenance. You could easily design a very good course.

It's funny; teachers are all for teaching kids how to perform immoral and even deviant sex acts that lead to terrible problems, yet it's hard to drum up any support for firearms training. Leftists will send people out to teach heroin addicts to shoot up "safely," but they don't want to teach kids how to exercise their constitutional rights correctly.

You can’t put a price on a child’s life. Play their emotions like the left does. Just imagine how many accidents we may prevent if they taught 30 minutes a week of gun safety to K-5 kids. Each school hire firearms instructors that are combat Veterans based on their school size 1-X. they could probably double as security so we don’t worry about some weener not doing their job in an attack. Have them teach the older kids daily and pop in once a week or so to do a segment for the younger kids. We kill lots of birds with one stone.

Do we really need to be teaching gun safety to kids in school? The rate of deaths and injuries from gun accidents continues to decline. It would seem to be a solution to a problem that is less and less of a problem. This is something that parents should do. There is already too much non-academic stuff being taught in schools.

 

[readyeddy]

Not looking for an analysis of the case, but what the next steps are. Does Hawaii ask for a reconsideration of the original 3-judge panel? Do they ask for a hearing of the entire 9th Circuit? Are these automatic? What happens if Hawaii just stops the litigation now? I would expect any attorney to be able to answer such procedural questions off the cuff in the same way that I would expect an accountant to be able to explain whether an expenditure is an expense or capital investment or an engineer would be able to explain shearing stresses and bending moments.

I'll give it a shot. Others can correct me where needed.

What can happen next?

The County can ask for reconsideration, an en banc hearing (full 9th Cir), appeal to the supreme court, or not challenge the decision. The challenges are not automatic.

If the decision is not challenged, then the case proceeds again before the District Court which will presumably grant the plaintiff's prayer in some form. The effect of the decision standing is that the Hawaii statute prohibiting open carry is invalidated. It will also be the law in the 9th Circuit that the 2A includes the right to carry a firearm outside the home openly for self defense.

What is likely to happen?

Based on the oral argument and the fact that the State of Hawaii filed an amicus brief, it looks like there are only two parties remaining: Hawaii Island County and George Young. Will the County fight the battle for a state statute all by itself? They have problems of their own with the volcano and recent high profile criminal manhunts. There's also the reality that not a whole lot of people are eager to carry openly in Hawaii, so the actual impact of this decision while monumental from a 2A perspective, will likely not result in a lot of open carry. Also, if the case eventually ends up before the supreme court, the anti 2A people may be very disappointed with the court's decision.

But most people probably believe that the County will ask for an en banc hearing and seek a result similar to Peruta II.

 

[Hokie_PhD]

You can’t put a price on a child’s life.

Actually governments, courts, insurance companies and others do.

Now I agree with the point you’re trying to make, I also live in the real world and know that gun safety won’t become a core class.

Tearches in K-6 can’t teach kids basic math, basic civility and manners, do you really think they’d be able to teach gun safety? A subject most wouldn’t want to teach!

I think a better approach is for each of us to get as many people we know out to the range. Get people to learn about the joys of shooting, and show them how we value safety.

Imagine if each of us too one new person to the range each month. 12 people a year! Even if just one joined our ranks. We’d double in numbers each year.

Then if we do as mentioned above and exercise self responsibility and teach our kids and their friends about gun safety we will see a muxh safer environment.

 

[JTHunter]

Do we really need to be teaching gun safety to kids in school? The rate of deaths and injuries from gun accidents continues to decline. It would seem to be a solution to a problem that is less and less of a problem. This is something that parents should do. There is already too much non-academic stuff being taught in schools.

There was a teacher I had back in high school that told the class three very important words that have stuck with me to this day. They said: "Knowledge is Power." Why do you go to a doctor or an auto mechanic? Because they have the knowledge which gives them power over you. By educating yourself with at least a bit of their knowledge, you are less likely to be scammed, defrauded, etc., which will help protect you. That is why the safety programs aimed at grade school kids (such as the "Eddie Eagle" programs from the NRA) can help save their lives in the future. IIRC, the people that teach these programs are usually volunteers so it doesn't cost the school anything but a little time and a location to do the class. These programs are also pre-cursors to hunter education programs and can be taught in high schools WHICH, oddly enough, was where I took my class as a sophomore and from the same teacher who was also teaching a science class I was in too.
The safety classes can teach kids how to react (or NOT react) that gives them protection through the power of knowledge.

 

[old lady new shooter]

most people probably believe that the County will ask for an en banc hearing and seek a result similar to Peruta II.

They probably will but a newly configured SCOTUS that includes Kavanaugh is (unlike with Peruta) likely to accept this case and then the anti's are out of luck.

 

[CapnMac]

That is why the safety programs aimed at grade school kids (such as the "Eddie Eagle" programs from the NRA) can help save their lives in the future

I know teachers (not of the admirable esteem of our @Hasaf or @Hokie_PhD ) who claim, with whole-hearted conviction that Eddie Eagle is "indoctrination" and encourages kids to be involved in what they generally refer to as "gun culture."

Which is, of course, absurd--sadly absurdity has become a new normal.

But, it's also why we'll never see schools--as presently constituted--teaching firearms safety. Which will also dovetail with the reason that so few schools teach "Driver's Ed"--the liability issues were greater than the school administrators could afford.

And, yes, the position taken--that "teaching [thing] encourages [thing]"--is fraught with hypocrisy at several levels, not one of which will be acknowledged.

 

[CapnMac]

There remains a vexing question, one raised above, of what happens if this goes against the County and/or State of Hawai'i?

History does not paint a clear picture. After Heller, DC enacted registration and an AWB and magazine capacity regulations, which were upheld. After McDonald, there was little change for the better in the Chicagoland metro (and one could argue, has become demonstrably worse).

This is troubling for those of us who embrace politics as a matter of fact rather than as an article of faith (an entirely separate essay and not germane here). However, in my opinion, the changes pending in the next year to two years in the Supreme Court might fortell a change for the better. Maybe.

 

[Swifty Morgan]

I can't emphasize it enough: the never-Trumpers tried to prevent this. No matter how much you hate the nominee you end up with, if you don't want to be ruled by dangerous judges, you get off your butt and vote for your party's man. Seeing a decision like this in the 9th Circuit is a huge victory, whether it holds up or not. It shows that the leanings of the court can be changed.

 

[Hokie_PhD]

I can't emphasize it enough: the never-Trumpers tried to prevent this. No matter how much you hate the nominee you end up with, if you don't want to be ruled by dangerous judges, you get off your butt and vote for your party's man. Seeing a decision like this in the 9th Circuit is a huge victory, whether it holds up or not. It shows that the leanings of the court can be changed.

Or if you’re not tied to a political party and have a brain, you vote for the best candidates. The ones who may not be perfect, but have most of the values that you have.

In this case, the 2nd Amendment, being business friendly, being for law and order, and pro USA made the choice easy for me.

The fact that the current president is actually doing the things he promised and getting results is a refreshing change.

Personally I’m a bit concerned about judges being too far right or too far left. But if judges who follow the law and don’t legislate from the bench and respect and actually protect the Constitution are now considered conservative I guess I’m no longer in the middle but am now on the right.

 

[Swifty Morgan]

You're never just voting for a candidate. You're always voting for a party, whether you intend to or not, even if you stay home. Presidents appoint all federal judges. A vice president can be the tie-breaking vote that gives people who think like you control over tight decisions in the Senate. Presidents appoint the whole cabinet, plus agency heads. A president will promote the ethos of his party and help turn it into law. He will even help like-minded congressmen and governors get elected.

It's also crucial to vote for congressmen from the party that best fits your values. Majority parties control Congress. They lead the committees that write our laws and confirm judges. A party with a big majority can impeach officials who have done nothing wrong. They treat minority parties like dirt. It's not like all congressmen do is write laws and vote. The whole system is rigged to crush the minority parties.

I've known conservatives who thought they were being clever by voting for relatively conservative Democrat congressmen they thought were able. They weren't savvy enough to understand that they were undermining the whole conservative power structure and helping far-left fringe nuts in other states. A president without allies in Congress is crippled. It's like ordering a Porsche with no wheels.

Conservatives should have voted for Trump instead of staying home or poking their votes down a libertarian rathole. Liberals should have voted for Hillary instead of casting vanity votes for Jill Stein.

Or if you’re not tied to a political party and have a brain, you vote for the best candidates. The ones who may not be perfect, but have most of the values that you have.

If you truly have values, it's very easy to identify and support a party that is most likely to promote them, and if you can do that, your votes are much more likely to advance the causes you care about.

How can anyone complain about federal judges while voting for people who help noxious judges get elected and keep good judges off the bench?

 

[Frank Ettin]

....Seeing a decision like this in the 9th Circuit is a huge victory, whether it holds up or not. It shows that the leanings of the court can be changed.

Post Heller/McDonald Second Amendment court decisions certainly have been a mixed bag. Some judges have, we pro-RKBA types think, gotten it (and some of those judges have not historically been considered friends of the Second Amendment). There have been some excellent, when viewed from a pro-RKBA perspective court decisions applying Heller and McDonald the way we, in this camp, think those cases should be applied. For a few examples --

• In Tyler v Hillsdale County Sheriff's Department (Sixth Circuit, No. 13-1876) a panel of the Sixth Circuit ruled, essentially, that in order for a mental health confinement to be a disqualifying condition there needed to be a way for a prohibited person to later demonstrate fitness to possess a gun. Unfortunately an en banc hearing was granted vacating the panel's opinion.
  
  
• In a case called Mance v. Lynch (No. 15-10311) a District Court basically tossed out a provision of the GCA which prohibited a person from buying a handgun from an FFL in a State other than his State of residence. But it lost in the Fifth Circuit.
  
  
• The original Peruta decision by the 9th Circuit panel tracked very nicely with what I think it a proper reading of Heller, but that got superseded by a weasley, anti-RKBA en banc decision.
  
  
• There have been a few others with the gold star going to the 7th Circuit decision written by Posner in Moore. That decision effectively forced Illinois to enact a "shall issue" law.
  
  
• The point is that there are federal judges who have read Heller and McDonald, understand those case and are prepared to apply the core principles to other cases. And it may be that acceptance of those core principles of Heller and McDonald can gain momentum.

 

[HEAVY METAL 1]

The Constitution does not give us the right to...anything. It protects our inherent right to whatever behavior from the government that tries to deprive us of liberty. This is a very important difference. On TV I had seen a congressman utter that the constitution gives us the right to...

 

[HexHead]

”as the last thing we need are fools trying to use stand your ground and castle doctrine to claim self defense when they’re guilty of man slaughter or worse.”

That’s for the courts to decide.

 

[ATLDave]

The Constitution does not give us the right to...anything. It protects our inherent right to whatever behavior from the government that tries to deprive us of liberty. This is a very important difference. On TV I had seen a congressman utter that the constitution gives us the right to...

But that makes no practical difference in the law. If you contend that you have the "inherent right" to something, but it's not reflected in the Constitution (either expressly or "found" in it by case law) or any other source of law, then that "inherent right" doesn't matter. People have all kinds of philosophical views on what "natural rights" humans have. But that's what those views are: philosophy. What matters is which rights are recognized by the courts, at least if your concern is stuff like staying out of jail.

 

[ilbob]

That decision effectively forced Illinois to enact a "shall issue" law.

which for most of the people who live here is a license to leave a gun in your car in the parking lot in places you could not do so before.

does very little for people in chicago since they can't even get on a bus while carrying.

 

[Styx]

which for most of the people who live here is a license to leave a gun in your car in the parking lot in places you could not do so before.

does very little for people in chicago since they can't even get on a bus while carrying.

Are you saying that you still can't carry outside home/car even with a permit? Asking because Hawaii might use the same antics of their hands is forced.

 

[readyeddy]

Are you saying that you still can't carry outside home/car even with a permit? Asking because Hawaii might use the same antics of their hands is forced.

Probably....

 

[Styx]

I think the dissenting Judge has a point. Under Hawaii law, textually, there's a path to obtaining a license to carry outside the home. Yes, on it's face we could assume that, although the law textually allows for carry outside the of the home, in practice, Hawaii is imposing a de facto ban being that ZERO permits have been issued for years. The problem with the Majority's conclusion/assumption is that neither the Plaintiff or the State provided any evidence about whether the previous applicants for a permit should have been or even would have been approved even if the state was Shall Issue.

Being a key part of the plaintiff's arguement, one would think that he would have submitted evidence that even some citizens who where well qualified under Hawaii's Good Cause policy were still being denied carry outside of the home. At the very least, get the Chief of Police on record as stating that he only will issue permits to security guards and the like, and will not issue permits the public under any circumstances. Heck, the lawyer for the plaintiff could have shown that his client or took on a client that had reasonable fear for his or her life and was denied a permit to both carry openly and concealed outside the home. Preferably a female victim of domestic abuse who was attacked outside the home. That's a case that, IMHO, would be harder for Liberal judges and SCOTUS to ignore and to say that they had no right to self defense under 2A.

 

[readyeddy]

The statute’s open carry provision only allows security guards to open carry. In other words, it’s not a “may issue” statute for open carry. So it’s clearly unconstitutional if there’s a constitutional right to open carry.

 

[Styx]

The statute’s open carry provision only allows security guards to open carry. In other words, it’s not a “may issue” statute for open carry. So it’s clearly unconstitutional if there’s a constitutional right to open carry.

From what I heard, the statue does not say both open and conceal carry is banned or only extends to security. It's my understanding that the statue is a typical show Good Cause statue; however, the Chief of Police has only issued permits to security. I don't believe that either party entered into evidence records showing that other candidates who had Good Cause were being denied.

Found the statue. It says nothing about carry outside the home being limited to security guards.

§134-9 Licenses to carry. (a) In an exceptional case, when an applicant shows reason to fear injury to the applicant's person or property, the chief of police of the appropriate county may grant a license to an applicant who is a citizen of the United States of the age of twenty-one years or more or to a duly accredited official representative of a foreign nation of the age of twenty-one years or more to carry a pistol or revolver and ammunition therefor concealed on the person within the county where the license is granted. Where the urgency or the need has been sufficiently indicated, the respective chief of police may grant to an applicant of good moral character who is a citizen of the United States of the age of twenty-one years or more, is engaged in the protection of life and property, and is not prohibited under section 134-7 from the ownership or possession of a firearm, a license to carry a pistol or revolver and ammunition therefor unconcealed on the person within the county where the license is granted. The chief of police of the appropriate county, or the chief's designated representative, shall perform an inquiry on an applicant by using the National Instant Criminal Background Check System, to include a check of the Immigration and Customs Enforcement databases where the applicant is not a citizen of the United States, before any determination to grant a license is made. Unless renewed, the license shall expire one year from the date of issue.

(b) The chief of police of each county shall adopt procedures to require that any person granted a license to carry a concealed weapon on the person shall:

(1) Be qualified to use the firearm in a safe manner;

(2) Appear to be a suitable person to be so licensed;

(3) Not be prohibited under section 134-7 from the ownership or possession of a firearm; and

(4) Not have been adjudged insane or not appear to be mentally deranged.

(c) No person shall carry concealed or unconcealed on the person a pistol or revolver without being licensed to do so under this section or in compliance with sections 134-5(c) or 134-25.

(d) A fee of $10 shall be charged for each license and shall be deposited in the treasury of the county in which the license is granted.

I believe the plaintiff left this door wide open. Mark my words, the majority in the soon to come (IMHO) en banc hearing will pick up on this technicality, and will run right through the door with it.

 

[readyeddy]

The first sentence of part (a) deals with concealed carry. The second sentence of part (a) deals with unconcealed carry for persons "engaged in the protection of life and property". The "exceptional case, where an applicant shows reason to fear injury" only applies to the first sentence of part (a).

So the statute does not specifically refer to security guards, but they are probably the most common subset of the statutory category.

If there's a way to combine the first two sentences together, then so be it, but the oral argument in Young seemed to flow in the direction that the two are mutually exclusive.

 

[Frank Ettin]

...Being a key part of the plaintiff's arguement, one would think that he would have submitted evidence ...

No, there's been no evidence of anything from either side yet. You need to understand how civil litigation works.

1. Young filed a suit alleging that the denial of his application for a handgun license to carry a loaded gun in public for self defense violated his right to bear arms as protected by the Second Amendment.
   
   
2. The State of Hawaii and other defendant filed a motion to dismiss that suit for failure to state a claim. Basically the defendants said that even if everything Young alleged is true, there's no constitutionally protected right to carry a gun outside the home for self defense. In evaluating a motion to dismiss the trial judges assumes all the plaintiff's factual claims are true.
   
   
3. The trial judge dismissed the suit, and Young appealed.
   
   
4. On appeal the Ninth Circuit panel first found that the Second Amendment protects an individual right to carry a gun outside the home for self defense. Therefore, Young's suit states a valid claim and can go forward.
   
   
5. But the panel also considered where the Hawaii statute, on its face, imposes constitutionally impermissible restrictions on the constitutionally protected right to carry a gun outside the home, and the panel indeed concludes that the Hawaii statute on its face does impose constitutionally impermissible restrictions on the constitutionally protected right to carry a gun outside the home (Young v. Hawaii, Ninth Circuit 12-17808, slip op., at 51-53, footnotes omitted):
   

   ...
   We next ask whether section 134-9 “amounts to a destruction” of the core Second Amendment right to carry a firearm openly for self-defense. Silvester, 843 F.3d at 821. If so, the law is “unconstitutional under any level of scrutiny.” Id.
   
   As previously explained, section 134-9 limits the open carry of firearms to people engaged in the protection of life and property, and even those lucky few may carry firearms only when in the actual course of their duties. Counsel for the County acknowledged as much at oral argument, stating that, to his knowledge, no one other than a security guard—or someone similarly employed—had ever been issued an open carry license.
   
   Restrictions challenged under the Second Amendment must be analyzed with regard to their effect on the typical, law-abiding citizen. Wrenn, 864 F.3d at 665 (“f the Amendment is for law-abiding citizens as a rule, then it must secure gun access at least for each typical member of that class.” (emphasis omitted)). That’s because the Second Amendment protects the right of individuals to keep and to bear arms, not groups of individuals. See Heller, 554 U.S. at 595. An 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.
   
   Restricting open carry to those whose job entails protecting life or property necessarily restricts open carry to a small and insulated subset of law-abiding citizens. Just as the Second Amendment does not protect a right to bear arms only in connection with a militia, it surely does not protect a right to bear arms only as a security guard. The typical, law-abiding citizen in the State of Hawaii is therefore entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense. It follows that section 134-9 “amounts to a destruction” of a core right, and as such, it is infirm “..under any of the standards of scrutiny.” See id. at 628. Thus, we hold that section 134-9’s limitation on the open carry of firearms to those “engaged in the protection of life and property” violates the core of the Second Amendment and is void; the County may not constitutionally enforce such a limitation on applicants for open carry licenses....

The case now goes back to the trial court for further proceedings consistent with the opinion.

 

[Styx]

But the panel also considered where the Hawaii statute, on its face, imposes constitutionally impermissible restrictions on the constitutionally protected right to carry a gun outside the home, and the panel indeed concludes that the Hawaii statute on its face does impose constitutionally impermissible restrictions on the constitutionally protected right to carry a gun outside the home (Young v. Hawaii, Ninth Circuit 12-17808, slip op., at 51-53, footnotes omitted):

I'm playing devil's advocate here Frank. I'm not saying your wrong about anything, nor am being argumentive for the sake of being so... I'm trying to discuss the merrits of a point the Dissenting Judge made.

(I read that they believed the entire premises of the Good Cause cause is unconstitutional)

If, as you say, there has been no evidence entered in on either side yet, how can the Court come to the conclusion that there's a de facto ban because only security guards have been issued licenses? There was not any evidence precented on how many people have even applied or whether those applicates had "urgency or the need has been sufficiently indicated" AKA had Good Cause to be issued a license to "protecting life or property?"

 

[RetiredUSNChief]

We REALLY need to stomp the states on the fact that the Second Amendment HAS been incorporated against the states (finally) in 2010 with McDonald v. City of Chicago.

I don't believe it's been FULLY incorporated, however, with respect to the full and undiluted intent of the Second Amendment. But it has at last been incorporated, at least.

Keep in mind, however, I ain't not no attorney and my understanding of the status of the incorporation of the Second Amendment may be way off.

 

[Frank Ettin]

... I'm trying to discuss the merrits of a point the Dissenting Judge made....

If you want to discuss the dissent, start with the majority opinion. O'Scannlain did a pretty thorough analysis of the dissent.

...If, as you say, there has been no evidence entered in on either side yet, how can the Court come to the conclusion that there's a de facto ban because only security guards have been issued licenses?....

That was explained in the majority opinion.

...There was not any evidence precented on how many people have even applied or whether those applicates had "urgency or the need has been sufficiently indicated" AKA had Good Cause to be issued a license to "protecting life or property?"

And, as outlined by in the majority opinion that is irrelevant (Young, slip op., at 51-53):

....We next ask whether section 134-9 “amounts to a destruction” of the core Second Amendment right to carry a firearm openly for self-defense. Silvester, 843 F.3d at 821. If so, the law is “unconstitutional under any level of scrutiny.” Id. ....

As previously explained, section 134-9 limits the open carry of firearms to people engaged in the protection of life and property, and even those lucky few may carry firearms only when in the actual course of their duties. Counsel for the County acknowledged as much at oral argument, stating that, to his knowledge, no one other than a security guard—or someone similarly employed—had ever been issued an open carry license.

...

Restricting open carry to those whose job entails protecting life or property necessarily restricts open carry to a small and insulated subset of law-abiding citizens. Just as the Second Amendment does not protect a right to bear arms only in connection with a militia, it surely does not protect a right to bear arms only as a security guard. The typical, law-abiding citizen in the State of Hawaii is therefore entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense.21 It follows that section 134-9 “amounts to a destruction” of a core right, and as such, it is infirm “under any of the standards of scrutiny.” See id. at 628. Thus, we hold that section 134-9’s limitation on the open carry of firearms to those “engaged in the protection of life and property” violates the core of the Second Amendment and is void; the County may not constitutionally enforce such a limitation on applicants for open carry licenses....

The foregoing was also quoted in my prior post.

I suggest that before playing devil's advocate you spend some more time studying the decision.