I have mixed feelings about the fate of this latest lawsuit out of Hawaii shot-down by the 9th circuit court of appeals last week – Baker v. Kealoha. I had encouraged the sole plaintiff in the lawsuit, Christopher Baker, to file a lawsuit challenging Hawaii’s de facto ban on Open Carry.
I urged Mr. Baker to challenge the requirement that one must have a permit to carry a firearm in public but if he insisted upon having a permit then he must apply for a permit to openly carry a handgun in order to have what the courts call “standing” to continue and hopefully prevail in his lawsuit.
The US Supreme Court has said in three separate decisions that concealed carry is not a right. Two of those were recent decisions. Arguing that the Supreme Court is wrong is not a winning strategy.
In order to have standing to challenge a licensing law must one either have applied and been denied a state license, or one must plead that it would be futile to apply for a state license (along with a good argument as to why it would be futile to apply), or the futility in applying for the state license must be evident on the face of the law.
For example, handgun Open Carry licenses in California are only available in counties with a population of fewer than 200,000 people. That is clearly stated in the law. Anyone who lives or is employed full time outside of one of these counties simply cannot be issued a handgun Open Carry license. Nevertheless, I took the safest course of action. I asked for both an application and a license and was denied solely because I reside in a county with 200,000 or more people, I pleaded that it would be futile to obtain a handgun Open Carry permit for any and all issuing authorities in the State of California and, of course, I am prohibited from obtaining a license because of my residency on the face of the law.
Mr. Baker, who lived in Hawaii where the state law has no population or residency restrictions said he did not care (about what I said). Mr. Baker said he wanted a concealed carry permit and that is what he applied for.
And a concealed carry permit is what Mr. Baker was denied. Mr. Baker did not have standing to challenge the denial of a handgun Open Carry permit. He could have applied for one, nothing on the face of the law prevented him from doing so but he did not because he wanted a concealed carry permit.
Mr. Baker filed for a preliminary injunction in the district court and his preliminary injunction was denied. Mr. Baker then appealed the denial of his preliminary injunction. Mr. Baker’s appeal of the denial of his preliminary injunction was supposed to have been given priority over other appeals.
Instead of being given priority, four years, nine months, one week and four days after Christopher Baker filed his notice of appeal to the 9th circuit court of appeals Mr. Baker’s case was finally decided and sent back down to the district court for a do-over.
Last year an en banc 9th circuit court in Peruta v. San Diego had held that concealed carry is not a right under the Second Amendment. Mr. Baker did not apply for a handgun Open Carry permit and therefore he did not have standing to seek anything other than the concealed carry permit which he was denied. This presented a bit of a quandary for two of the three judges assigned to decide his case.
The three judge panel in Mr. Baker’s case could have struck down the Hawaii laws prohibiting the Open Carry of a handgun without a license as was done recently in a separate lawsuit out of the Commonwealth of Northern Mariana Islands but that was never going to happen with these two particular judges: Callahan and O’Scannlain. What the three judge panel could not do was to say that Hawaii must issue permits to carry handguns, openly or concealed, because concealed carry is not a right and because Mr. Baker did not have standing to obtain a handgun Open Carry permit.
These two judges are the same ones who came up with the now long since vacated 2-1 decision in Peruta v. San Diego which held that states could ban Open Carry in favor of concealed carry contrary to three US Supreme Court decisions (now four decisions) and contrary to 200 years of American law which has held that Open Carry is the Constitutional right and that concealed carry is not a right and can therefore be banned.
And what reason did Judges Callahan and O’Scannlain give to justify the destruction of an enumerated, fundamental right (Open Carry) in favor of something which has never been a right (concealed carry), something which they admitted to in their decision was not a right?
Their “justification” in banning the right to openly carry a firearm for the non-existent entitlement to concealed carry permits was that some people do not like the sight of guns.
I kid you not.
Technically, Mr. Baker “won.” This sharply divided three judge panel vacated the denial of his preliminary injunction. Although that would normally result in the preliminary injunction being issued, that was not to be in this case.
The three judge panel decision remanding the case back to the district court said the district court was free to grant or deny any subsequent motion for a preliminary injunction in this case. On appeal, Mr. Baker’s attorneys promised not to file for another preliminary injunction if his case was remanded.
Worse, the decision in this case is unpublished which means the decision can not be cited as a binding precedent. The decision applies only to the parties in the case.
And so now we have to wait for a final judgment by the district court judge followed by another appeal. But that may never happen because …
… because there is another obstacle, a big one. Mr. Baker has reportedly moved out of the state and did so some time ago. Mr. Baker, who for all intents and purposes was having to start over from the beginning is, by virtue of his having moved out of the state, going to have to file a new cause of action under a different section of Federal law which allows people from other states to sue officials in a state in which they do not reside.
Not only is this starting over from square one, it is starting over at square one on a very different board game, and a game Mr. Baker’s lawyers have never played.
It is far more difficult to win a lawsuit seeking to vindicate a non-resident’s rights compared to those of a resident, especially when a state license is involved and not forgetting a judiciary hostile to the Second Amendment.
As I mentioned in the beginning, I had mixed feelings about this case. It would have been nice if Judges Callahan and O’Scannlain had held that Hawaii’s bans on openly carrying firearms in public are unconstitutional and held that one does not need a government issued permission slip before he can exercise his fundamental, enumerated right.
Since that wasn’t going to happen, the frightening alternative was that Judges Callahan and O’Scannlain, given their hatred for Open Carry, would have instead decided that the Second Amendment right is limited to the interior of one’s home, which is what the district court judge had held.
And so, it is best that this case, Baker v. Kealoha, dies with a whimper instead of a bang.
Mr. Baker’s attorney, Alan Beck, has one more case out of Hawaii which had been stayed pending a decision in Baker – Young v. Hawaii. Not only did Mr. Beck make similar mistakes in Young as he did in Hawaii, he made brand new mistakes as well.
I hope that Mr. Young’s appeal will be similarly remanded back to the district court for a do-over. That will leave only one Open Carry case remaining in the 9th circuit court of appeals – Nichols v. Brown. For that matter, Nichols v. Brown is currently the only pure Open Carry case in all of the 9th circuit. The fake Open Carry case filed by the NRA, Flanagan v. Becerra, was dismissed last month. The NRA still has not filed an amended complaint and if the NRA waits too long to file its amended complaint then its lawsuit will be dismissed with prejudice.
Every lawyer and judge should be asked if the following citations mean that Open Carry can be banned in favor of concealed carry or in favor of no carry. If they say “Yes” then they should be disbarred and removed from the bench.
“In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right…Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809
“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose … For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251…” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816
“[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 S. Ct (1897) at 282.