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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel. |
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#681
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Panel asked Young counsel for response to state's petition for en banc. Have 21 days to respond.
I sincerely hope Young counsel poke a ton of serious holes in that load of crap and lies the from the 11 lawyers representing the state and county. |
#682
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Why on earth would Wolfwood argue that open carry can be banned in favor of concealed carry when the original panel said, per Peruta, that concealed carry is not a right in the Ninth Circuit? Peruta applies to Hawaii as well. Hence, if there is a right to bear outside the home, then it must be open carry. The real argument is whether the State can permissibly regulate open carry through a licensing system, and whether that system is unconstitutional if it results in no one other than security guards from getting such permits. Or to put it another way, can the State ban the vast majority of its residents from exercising a right to bear arms without violating the Second Amendment? (We know what the answer will be, we just have to wait to see how they finesse it.)
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#683
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The request is for a response to the state petition arguments for an en banc hearing, not to submit a brief on the merits of the case. Any claims or arguments about whether a state can ban some manner or other of bearing arms is not germane to the state's arguments for re-hearing en banc, and thus would be superfluous and useless.
It's pretty simple really. Here are the proper responses to the state's arguments: I. No. II. No. III. No. IV. So? Of course Young counsel will have to flesh those out, at least a little bit, so judges O'Scannlain and Ikuta can ostensibly point to something written by plaintiff counsel when denying the en banc petition. |
#685
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I suspect so. The 9th seems to be able to make up rules as it goes, and ignore the rules it does not like.
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What about the 19th? Can the Commerce Clause be used to make it illegal for voting women to buy shoes from another state? |
#686
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Yes. That's exactly what happened with Peruta. Panel denied en banc petition. Sua sponte call by a judge for a vote by the entire court. Court voted for en banc. En banc panel overturned Peruta. Rinse and repeat. Any questions?
Last edited by surfgeorge; 09-20-2018 at 11:19 AM.. |
#687
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I really hope Alan have read the panel opinion that highlighted that this is NOT a winning argument.
Open Carry is a right and can not be banned. Concealed Carry can be banned. Just "Carry" is of now is undefined by Supreme Court and can not be asked for. |
#688
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From the first page of McDonald v City of Chicago: Quote:
Last edited by ritter; 09-20-2018 at 12:35 PM.. Reason: clarification |
#689
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#691
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#692
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The Peruta situation was different. The defendants opted not to file en banc and one judge (probably Chief Thomas) went sua sponte and called for the vote to happen anyway. |
#693
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[QUOTE=TruOil;22135119]Yeah, well, I have no idea what you just said, anymore than I understood why Wolfwood should argue that open carry can be banned in favor of open carry. Such an argument is clearly foreclosed by the Peruta decision. I think I just explained how the Ninth will attempt to escape the corner it painted itself into with Peruta--licensed open carry subject to a "may issue" regime, such as exists in Hawaii right now, as long as it is clear that licensing applications are not limited to security guards (which I have to assume is how the chiefs/sheriffs have been interpreting the statute up until the AG's new position paper).[/QUOTE]
I agree with this. But then they'd be teeing up an OC licensing scheme for SCOTUS in which only security guards have received permits. Even though the 3 judge panel's opinion is wiped out within the 9th, it's still going to be part of the record for the SCOTUS appeal. |
#694
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[QUOTE=press1280;22135521]
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#695
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[QUOTE=TruOil;22135538]
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If that's the case, then shouldn't en banc be denied since the law is (somewhat) changed, and this should go back to the district court with the 3 judge panel's opinion as their guide under the new AG opinion? |
#696
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[QUOTE=press1280;22135667]
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#697
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[QUOTE=mrrabbit;22135976]More like post-Heller. The direct holding in the case was to invalidate a single statue or group of DC statutes regulating possession of firearms in the home. Heller did not consider licensing or permit schemes, nor did it consider carry outside the home. Heller I did not ask for "bear"; that came later in other cases. Read into Heller all you want, but courts do not issue advisory opinions on matters not addressed by the issues brought by the parties. Which is why there were later cases--cases as you well know that came to contradictory conclusions as to the scope of the right and, critically, the standard of review, questions that Scalia's majority opinion left wide open.
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#698
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How many appeals courts have concluded that "bear" is not within the core right guaranteed by the Second Amendment? And how many of those cases cited Heller for that proposition? And after concluding that it is not a core right, how many applied their diluted excuse for "intermediate scrutiny"? Since all of these courts read Heller, it is safe to assume that they concluded that the bear issue had not been foreclosed. Read the AG's petition in Flanagan which all but argues that there is no right to openly bear arms in any incorporated ci8ty or town, notwithstanding the fact that you are far more likely to be assaulted in one of those crowded metropolitan areas than in the open country or out in the forest (because people are few and far between, and the only need for self defense in most cases is from creatures on four legs). The right as Becerra sees it is limited to private property and while hunting, camping and hiking. I wonder where he got that idea? Not from the Second Amendment!
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#699
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IIRC Young didn't have major death threats over his head so it's not like the situation in Drake where the original plaintiff had been kidnapped and taken halfway across the country and a permit was eventually issued to him to try to show his situation was different. |
#700
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#701
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https://www.scribd.com/document/3893...n-Amicus-Brief
https://www.scribd.com/document/3893...f-the-Counties https://www.scribd.com/document/3893...Gabby-Giffords amicus briefs came in for the other side |
#702
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I'm not a lawyer but the Everytown one sounds like weird word salad.
The Giffords one they're bring back the good old chestnut "Collective Right" saying "Bear Arms" is a military term meaning only soldiers on a battle field, it's a joke. |
#703
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I haven't looked at the briefs in a long time--did the county ever argue that open carry permits were not limited to security guards but available to anyone? Or is this an entirely new argument never considered by (a) the trial court, (b) the original panel? If the latter, hasn't the argument been waived?
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#704
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They’re obviously trying to muddy the water after the fact and one can hope that would never fly but this is the 9th. Here’s the Hawaii AG letter, issued sept 11 http://ag.hawaii.gov/wp-content/uplo...n-No.-18-1.pdf
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#705
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#706
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Just reading the briefs post-Peruta en banc, it's stated by Young that the OC permit is limited to security personnel, while the county never specifically addresses it. I'll have to look at the Baker briefings and see if the state has made any remarks on OC there. |
#707
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The counties' amicus quotes the Kauai issuance of two CONCEALED licenses in 2006 (to a judge) and 2013 (for The amicus brief doesn't point out that the other county police chiefs, in their "declarations", fail to mention that none of them, or their departments, have EVER issued any kind of license, much less an unconcealed carry license, to anyone other than a security guard. EVER. Now why did they not make a point of that? Last edited by surfgeorge; 09-25-2018 at 1:30 PM.. |
#708
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#709
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No, no , no... you guts don't get it. The AG is making the case himself that there is no "right" to carry in Hawaii (emphasis added by me):
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#710
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We know that is a total pile of horse****. And I'm betting O'Scannlain and Ikuta concur in that view. Watch the orals and look at O'Scannlain's face and listen to the tone of his voice when he challenges the county attorney when he claims that unconcealed carry really has been available all along to "ordinary law-abiding citizens". He wasn't happy. En banc petition denied. Then Sidney Thomas will call for an en banc vote again. Last edited by surfgeorge; 09-25-2018 at 2:34 PM.. |
#711
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Further evidence of this is that the counties' amicus brief makes a big deal of Kauai PD issuing (the only) two concealed licenses in, well, forever in the state of Hawaii for which there is any extent data (the other two issues in 2001 on Maui appear to be gone, and they are not mentioned in the brief). If they had one scintilla of evidence that anyone anywhere at any time in Hawaii, other than a security guard had ever been issued an unconcealed license, they would have led off the brief with it. They didn't, because they don't, because there aren't. Their argument that just because no one has ever gotten an unconcealed license doesn't mean that no one COULD have gotten one... is preposterous, especially given that people have been (anecdotally) told that they cannot even apply for an open carry license unless they have proof of employment for a security firm. My understanding is that a number of people have already applied for the unconcealed licenses and should be getting their denial letters shortly. Then we have to go from there pending the next stages of Young and maybe Nichols. Last edited by surfgeorge; 09-25-2018 at 2:52 PM.. |
#712
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At least it got denied... once.
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Its an expensive hobby, but more expensive when you try and convince yourself you don't need what you really want. |
#713
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#714
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The declarations by both the Honolulu PD chief and the Kauai PD acting chief have verbatim identical phrases and sentences throughout their declarations, including: "[T]he Attorney General's opinion comports with the [HPD's/KPD's] past and current practice." And we know they can't be lying, because both declarations are signed immediately below this statement: "I declare under penalty of perjury that the foregoing is true and correct." When was the last time a Hawaii police chief lied? I mean besides HPD's most recent former chief Kealoha who resigned and is now under federal indictment and facing trial? Surely his replacement, a woman, wouldn't deceive the public, would she? Couldn't be, because their motto is "to protect and serve with aloha". I kid you not. Read the declarations for more of the lies and deceptive statistics and claims about how the world will end with mass public violence if the ordinary law-abiding citizens of Hawaii are allowed to bear arms outside their homes, even though none of what they predict has happened in any other state where the law went from "no" or "may" issue to "shall" issue or "permitless": HPD http://michellawyers.com/wp-content/...lard_157-2.pdf KPD http://michellawyers.com/wp-content/...ades_157-3.pdf |
#715
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Do they not know about equal protections in Hawaii, or do they just want to maximize their chances of losing?
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#716
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Nah, just that the issuance is discretionary and that no citizen has to date shown sufficient "need" to open carry a handgun in public outside of those areas where it is permissible.
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#717
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But isn't a sufficient need argument fatal when we are speaking of a constitutional right?
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#718
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Depends on what jurisdiction you are in and the level of scrutiny applied. If you are Judge O'Scanlain, strict scrutiny applies (as he did in this case and the original Peruta decision). But if you are Judge Stanley Thomas and the rest of the liberals on the Ninth Circus bench, "intermediate scrutiny" applies, whereby, under their extremely deferential standard that is little more than the lowest level of scrutiny, rational basis, the government has an "important interest" in "protecting the public," and therefore "reasonable restrictions" on the right to bear arms essentially trump the right.
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#719
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The state actually argued that: Because of the inherent danger of firearms, in order to help assure "public safety", no one should be allowed to bear arms in any location where any member of the public may lawfully be. Thus applying the "sensitive locations" proviso of Heller I to any and all public spaces. Case closed. |
#720
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If it's denied then it's denied. The entire court votes on it. One judge cannot change that outcome.
Peruta was different. The county in that case didn't proceed with en banc, but Thomas went sua sponte and asked for en banc w/o the parties asking for it. Not what's happening here. |
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