The Right of The People to Keep and Bear Arms is on life-support because of the Second Amendment Lawyers who are, as of this very moment, in Federal Court trying to get the courts to pull the plug.
As of this writing, it has been 2,940 days since the decision District of Columbia v. Heller was published by the United States Supreme Court. The author of the Opinion was the late US Supreme Court Justice Antonin Scalia. He would die in his sleep seven years, seven months and seventeen days after his landmark decision regarding the Second Amendment was published.
I do not think that any of the five justices in the majority, or the four judges in the minority, of the Heller decision expected that the lower courts would openly rebel against the Heller decision. I am certain that none of the nine justices thought that the so called gun-rights groups would file lawsuits seeking to overturn the Second Amendment right defined in the Heller decision which the US Supreme Court would explicitly hold, two years later, applies to all states and local governments in another 5-4 decision, McDonald v. City of Chicago.
It is these lawsuits filed by the so called gun-rights groups which have given the lower courts the opportunity to relegate the Second Amendment into a second class right, or no right at all.
AND THEN THERE ARE THE INCOMPETENT LAWYERS
Case in point is an appeal in the 9th Circuit Court of Appeals, George Young Jr., v. State of Hawaii, et al.
Mr. Young is not an attorney. I do not blame him at all for challenging Hawaii’s unconstitutional gun laws. After all, none of the so called gun-rights groups challenged them.
The problem faced by Mr. Young is that the courts have created many barriers to overturning an unconstitutional law. One cannot simply file a lawsuit and claim that the challenged laws are unconstitutional. Even if the challenged law is unconstitutional, unless one says the “magic words,” judges will not even entertain the challenge. The Congress could easily change this but it won’t. After all, why should the Congress make it easier to overturn the unconstitutional laws it routinely enacts?
One of the barriers to successfully challenging a law which the courts have erected is that one must say that he intends to engage in conduct which the challenged law prohibits. There are many, many other barriers but this is the one which trips up most people, even lawyers.
Overcoming this initial barrier is easily done and often appears in what is called a “Declaration” which is filed alongside the Complaint and various briefs filed in the lawsuit.
To nobody’s surprise, Mr. Young lost in the District Court and his loss was not entirely his fault. Because Mr. Young was not represented by an attorney, the District Court judge (Helen Gillmor, a Clinton Appointee) was required by law to identify the defects in Mr. Young’s lawsuit and she was required to give him an opportunity to amend his Complaint to correct those defects. She did not.
Mr. Young appealed his loss in the district court and is now represented by a lawyer. However, once one is represented by a lawyer, the leeway courts are required to grant to unrepresented litigants disappears. If your lawyer screws up then you are screwed.
Enter Attorney Alan Beck from Stage Left
Mr. Young’s new attorney, Alan Beck, should have filed a motion back in 2012 for his case to be immediately remanded back to the district court so that the Complaint could be amended, which the law requires unless the Complaint is incapable of being amended or is frivolous.
Instead, Mr. Young’s attorney, Alan Beck, filed an Opening Brief in Mr. Young’s appeal.
Mr. Beck seems to have slept through law school or at least he did not pay much attention to what was being taught.
The opening brief is the one and only chance Mr. Beck had to make the case in his appeal as to why his client should win. Anything not adequately argued in the opening brief AND not raised and adequately argued in the district court proceedings AND not raised again on appeal is forfeited on appeal.
Any claim raised for the first time on appeal is left solely up to the panel of judges assigned to the appeal as to whether or not they will entertain the new claim AND the new claim must be adequately argued, which Mr. Beck failed to do.
Most importantly, even if Mr. Beck had done everything correctly, he asked the court of appeals to grant him relief that no court can grant and the relief that he asked for which the court of appeals can grant, does not help his client even if the court were to grant it, which it won’t.
For example, in his opening brief Mr. Beck purported to challenge Hawaii’s ban on openly carrying long guns.
The problem is that Mr. Young, in his district court case, did not seek to carry a long gun in public and, of course, he did not file a Declaration or otherwise use any of the “magic words” which would have given him legal standing to challenge the ban on openly carrying long guns in public.
But let us assume that the court of appeals is inclined to hear a challenge to Hawaii’s ban on carrying long guns in public. Mr. Beck did not adequately challenge the Hawaii ban in his opening brief and his opening brief is the only place he could have challenged the Hawaii long gun ban on appeal.
But let us assume that Mr. Beck had adequately challenged the Hawaii Long Gun Open Carry ban in his opening brief AND that the Court of Appeals was inclined to hear the challenge for the first time on appeal.
Mr. Beck made a fatal error in his opening brief. Instead of asking for an injunction against Hawaii’s Long Gun Open Carry ban, Mr. Beck asked for an Order compelling the State of Hawaii to write a new law.
Guess what is the one thing the court of appeals cannot do. That’s right! No court can compel a legislature to write a new law. Every third year law student should know that but somehow Mr. Beck somehow never learned this most basic fact taught to every first year law student.
BUT WAIT, THERE’S LESS
Mr. Young wants to carry a handgun in public and was denied a license to do so. This gives him legal standing to seek a license to carry on appeal (assuming the court of appeals overlooks the deficiencies in his Complaint) but, you guessed it, his attorney (Mr. Beck) screwed up that as well in his opening brief.
It is illegal for Mr. Young to carry a handgun (or ammunition in public) without a license to do so. And so what did Mr. Beck ask for in his opening brief? He asked for an injunction against the law which provides for the issuance of a license to carry a handgun in public! If the court of appeals were to grant the injunction (it won’t) Mr. Young still would not be allowed to carry a handgun in public. For that matter, nobody would be allowed to carry a handgun in public.
In the alternative, his attorney, Mr. Beck, asked in his opening brief for an Order requiring the City Defendants to “adopt policies to allow it to survive constitutional muster.”
The “City Defendants” are following state law. They are not allowed to violate the state law. Just as in the Peruta v. San Diego and Richards v. Prieto concealed carry lawsuits out of California, Mr. Beck is attempting to do an end-run around the state statutes by not challenging the Hawaii state statutes which prohibit the Open Carry of handguns in public but instead challenging the “policy” of the City Defendants.
And in case you are unfamiliar with the Peruta/Richards lawsuits, that “strategy” went down in flames last month before an en banc panel of eleven judges on the 9th Circuit Court of Appeals.
We were fortunate the Peruta/Richards en banc court majority did what judges were supposed to do. The Court limited its decision to the case which was before it and applied binding US Supreme Court precedents to the case.
We might not be as lucky with Mr. Beck’s appeal. His case will be heard before a three judge panel and all it will take to do serious damage to the Second Amendment in this Circuit is for two of those judges to overlook the lack of standing and the fatal defects made by Mr. Beck and publish a decision which relegates the Second Amendment to a second class right or no right at all.
Meanwhile, Mr. Beck will continue to troll the Internet extolling his legal acumen to the simpleminded and will continue to find clients who do not know any better.
Did I mention that two of Mr. Beck’s most recent “victories” were two machine-gun cases out of the 3rd and 5th Federal Circuits where the courts of appeal held that machine-guns are not arms protected by the Second Amendment. Mr. Beck lost, his clients lost and everyone in those two Federal circuits lost because of Mr. Beck and his ill-conceived, incompetent lawsuits.
Mr. Beck’s most recently filed lawsuit challenges the New Jersey handgun permit requirement which has already been upheld by the 3rd Circuit Court of Appeals and in which the cert petition was denied by the US Supreme Court. It doesn’t take a crystal ball to predict the outcome of that lawsuit.
God save the US from the Second Amendment lawyers, especially the incompetent ones.