*Article originally written Nov 29, 2018
This summer, a three judge panel of the 9th Circuit ruled in the case Young v. Hawaii that Hawaii’s unconcealed carry licensing scheme was so stringent that it violated Mr. Young’s Second Amendment right to bear arms outside the home, as its provision – that only those who provided a need, an urgency, or was engaged in the protection of life and property would be able to obtain a license – resulted in zero unconcealed carry licenses being issued to anyone other than security guards.
While the 9th Circuit previously decided in Peruta v. Gore that the Second Amendment does not confer a right to concealed carry outside the home, it explicitly stated in that opinion, “In light of our holding, we need not, and do not, answer the question of whether or to what degree the Second Amendment might or might not protect a right of a member of the general public to carry firearms openly in public. The Supreme Court has not answered that question, and we do not answer it here.” The 9th Circuit’s three judge panel decision in Young answers that question: that yes, the Second Amendment does protect the right to open carry in public.
Hawaii hired the most impressive, high-dolla progressive lawyer they could find, former Solicitor General of the United States Neal Katyal, who is being paid $185,000 at a $1,550 hourly rate by the taxpayers of Hawaii, to petition the 9th Circuit to rehear the case en banc (before an eleven judge panel) in hopes to get them to decide differently. And for all that money, they got “hogwash” and an “Alice in Wonderland” approach to litigation.
In their petition to have the case reheard, first they’re claiming that the three judge panel mischaracterized the wording and understanding of the law in question, that the law doesn’t state that unconcealed carry permits are only for security guards, that really anyone who meets the criteria of need, urgency, and engaged in the protection of life and property can get one. Um, yeah… except the whole point of the case is that nobody other than security guards have ever been issued one, nor does anyone else, especially the average ordinary law abiding citizen, meet that criteria. Who is it exactly that’s mischaracterizing this case?
Second, they’re claiming that this decision creates a circuit split, that other circuits have held that the “core” of the Second Amendment does not include a right to public carry, as those cases were indistinguishable from Hawaii’s carry laws… except for the fact that there’s a pretty big distinction: those cases revolve around concealed carry, not unconcealed carry. Pretty important distinguishable trait, wouldn’t you say? Those cases affirm that there is a right to public carry, but that the particular laws being challenged don’t violate that core right. That is a far cry from what Mr. High Dolla and his Hawaiian government clients are claiming – that all these circuit courts have held that there’s no right to publicly bear arms. Or as Justice Clarence Thomas so eloquently retorted, “I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”
And third, they’re trying to say that this decision goes against what was decided in Peruta – again a CONCEALED CARRY CASE. Like it or not, the 9th Circuit decided in Peruta that concealed carry is not protected by the Second Amendment. They also decided long ago that the Second Amendment was a collective right, not an individual right, which was later overturned in Heller at the Supreme Court. But as of now, we have to play by the 9th’s decisions, and they explicitly stated in Peruta there’s no right to concealed carry AND that they left open the question about unconcealed carry. Mr. High Dolla cannot just gloss over that fact and distinction. He deliberately and continuously tries to conflate the two.
After getting destroyed by Mr. Young’s attorney Alan Beck when he replied to their petition with an accurate representation of prior decisions and the facts associated them, Mr. High Dolla did something very atypical. He had to ask the court for special permission if he could reply to Alan Beck’s reply. This is something that’s rarely ever done, and he likely did it because he’s worried that he blew it.
And do you know why he blew it? Because he underestimated his opponent. What he sees as a small time lawyer from San Diego in over his head, trying to argue a gun rights case of all things in front of arguably the most progressive circuit court in the land, against an ideological High Dolla ally of the court, is really someone who’s spent the better part of a decade specifically studying the ins and outs of Hawaiian law, rules and regulations, corresponding documents, etc etc etc, and 2A decisions. And to top it off, he’s doing it pro bono. High Dolla believed his gravitas alone would carry the day, but he can’t go up against the heart of a volunteer who actually has the passion for what he’s fighting for.
Mr. Young and his attorney are also being supported by brilliant and thorough amicus briefs filed by respected attorneys and their clients, notable civil rights organizations.
John Dillon, attorney representing San Diego County Gun Owners, laid out a detailed history spanning centuries of the right to bear arms – to wear or carry common arms upon the person for the purpose of armed self defense in case of conflict or confrontation with another person.
Don Kilmer, attorney representing The Madison Society, Calguns Foundation, Firearms Policy Coalition, and Firearms Policy Foundation, delivers a masterful piece regarding the natural rights we are endowed with that were protected via the Second Amendment and were supposed to be protected via the Fourteenth Amendment – which promised due process, equal protection, and a universalparticipation in the privileges and/or immunities for all who live in ourrepublic – and the subsequent ignoring of these rights by states and courts for a century and a half. The Second Amendment has been treated no different than the Fourteenth Amendment. His shot across the bow of the 9th Circuit, “It is an open question whether the Circuit Courts are limping along as best they can (mis)interpreting the Second Amendment out of an inertia, borne of some brand of judicial conservatism – or whether they are staging an open rebellion against the plain text of Supreme Court precedent. Either possibility is still preventable.”
Don Wilkerson, attorney for Hawaii Firearms Coalition, took a much different but nonetheless important route, that 98% of the Big Island is rural, that active volcanos and other land-based limitations isolate communities and prevent police response (of this I can attest while visiting, getting stuck on one side of Maui because of an accident that blocked the only two lane road in and out of there), that there are wild animals such as wild pigs and wild dogs that are a threat to unarmed people, and as icing on the cake point out that while a state as rural as Hawaii has never issued a concealed or unconcealed carry license, even rural CALIFORNIA counties issue concealed carry permits en mass.
Richard Holcomb, attorney for Hawaii Rifle Association, takes a similar approach, but points out that the people who live on rural islands like the Big Island have their own needs for self defense such as those stated above, but also that they are not immune from crime. Nor are residents on more populated islands like Oahu, who deal with a much larger crime rate per capita. No matter how the people of Hawaii live, city or rural, they’re all equal and equally being deprived their right to armed self defense in public.
And then there’s the amalgam of Gun Owners of America, Gun Owners Foundation, The Heller Foundation, Virginia Citizens Defense League, Conservative Legal Defense and Education Fund, and Restoring Liberty Action Committee – who agree that yes, Hawaii has had a longstanding tradition of depriving their subjects their rights and arms, because for most of their history they were a monarchy. Then once the European settlers arrived, they continued to deprive the natives of their arms, but selectively allowed themselves to keep arms to in order to control the native population. But since becoming a State, that all goes out the window, and their right to arms will be protected. Those who are against the right to bear arms like to point to Heller about allowing “longstanding prohibitions”, but that was in regards to felons and carrying in government buildings, not “we’ve had arms control and deprived people of their rights for so long that it’s now constitutional”.
Meanwhile, the Brady Bunch, Moms Demanding Something, and Everytown for Gun Confiscation basically took the Go Remy approach by stating, paraphrased, “YOU JUST WANT PEOPLE TO DIE!”
So, Mr. High Dolla and governments of Hawaii… I wanted to give you a cake that reads “At Least You Tried”, but you really didn’t. Though, it IS really easy to spend all that money of the very people whose rights you’re depriving, isn’t it?
Now let’s just say, for argument’s sake, that the 9th Circuit does something stupid and agrees with Mr. High Dolla, taking the case en banc with the goal of striking down the three judge panel’s decision. That the Second Amendment doesn’t protect the right to carry in public at all, not concealed as they stated in Peruta or unconcealed as they could state in Young… THAT would really create a circuit split, as the core right to bear arms would be destroyed. They’ve trapped themselves into a corner, and they will lose eventually.
I’ll leave you with some words from his replies by our good friend Alan Beck:
“After three federal cases, against all odds, with the assistance of pro bono counsel, and after more than 10 years of litigation, Mr. Young is entitled to have his [unconcealed carry] application actually considered, rather than summarily rejected under Hawaii’s flat ban. He has not sought to invalidate [Hawaii’s carry law] in its entirety or any of its other conditions on obtaining a carry permit, but rather seeks only to invalidate Hawaii’s reservation of the right to openly carry a handgun to those “engaged in the protection of life and property,” a term which Hawaii has always restricted to security guards. It should not take more than a decade to get a definitive answer to a question as straightforward as whether a flat ban on carrying outside the home is constitutional. Enough is enough.”
“Defendants’ Petition is a concession that Hawaii law cannot be justified. Rather than ask for rehearing en banc based upon Hawaii’s actual implementation of its laws, Defendants have gone to great lengths to create a fantasy where all three judges on Mr. Young’s Panel misread Hawaii law. There is absolutely no reason for this Court rehear Mr. Young’s appeal based on a post-hoc fiction. Defendants’ Petition should be denied.”
therealwritewinger 