Will It Be A Victory Or Will It Be A Massacre?
On Monday, August 15, 2016, the 9th Circuit Court of Appeals denied the petitions for a Full Court rehearing of two concealed carry appeals. This leaves the eleven judge panel decision from June 9, 2016, intact. That decision held that there is no right to carry a concealed weapon in public and that concealed carry can be banned without violating the US Constitution. The Court said it did not decide the question of whether or not there is a right to openly carry firearms in public because that question was not before the Court.
Less than 24 hours later, a three judge panel in the case of Baker v. Kealoha issued an order directing the parties to each file a supplemental brief on the impact of the eleven judge panel decision of June 9th on this case. The briefs are due by September 6, 2016.
The plaintiff, Christopher Baker, seeks to carry a handgun in public. He has three lawyers who make The Three Stooges look like a crack legal team and so whatever they write in their brief will only hurt Baker’s case.
Similarly, the other side is fixated on trying to convince the court that allowing exceptions to the ban on the public carry of firearms for hunting, target practice and security guards is all they need to allow for their ban to be constitutional. In doing so, the other side has mostly overlooked the fatal errors made by Baker’s attorneys.
Two of Three Judges Is All It Takes To Decide This Appeal
Keep in mind that Baker v. Kealoha is the appeal of the denial of a preliminary injunction which is a very different case from the appeal of a final judgment. Granting a preliminary injunction involves successfully passing a four point test. The three judge panel can conclude that there is a right to openly carry a handgun in public but still deny the preliminary injunction if the appeal fails any of the remaining three parts of the test.
This appeal is limited to the carrying of handguns, which is a big mistake made by Baker’s lawyers. Baker applied for a handgun carry permit and was denied. Hawaii handgun carry permits come in one of two flavors. A permit to openly carry a handgun if one is engaged (read employed) in the protection of persons and property or a permit to carry a handgun concealed.
Concealed carry permits are never issued. In light of the 9th Circuit decision which held that there is no right to carry a handgun concealed, this leaves a permit to openly carry a handgun while employed in the protection of persons and property.
Christopher Baker was a process server but he quit his job. Because of this, he no longer qualifies for a permit to openly carry a handgun.
Since judges cannot rewrite laws, something Baker’s lawyers failed to learn in law school, the only thing the three judge panel can do is to issue an injunction against the Hawaii laws which prohibit handguns from being openly carried without a permit or deny the preliminary injunction and kick the case back to the district court.
Two of the Three Judges Hate Open Carry
Hatred is too weak of a word. Judges O’Scannlain and Callahan are so opposed to Open Carry that they wrote a now vacated decision in the Peruta v. San Diego concealed carry appeal which held that if one so much as seeks to openly carry a firearm in his lawsuit then that person automatically loses while at the same time saying that it was okay for the Peruta plaintiffs to seek concealed carry permits!
I have no idea what the third judge on this three judge panel (Chief Judge Sidney Thomas) personally thinks about the Second Amendment Open Carry right or how he will vote on my California Open Carry appeal when it comes before him. But in his dissent to the decision of March 20, 2014, in this case, it is clear that he does not believe that a preliminary injunction is warranted.
Here’s How the Preliminary Injunction Will Be Denied
There are many reasons why the preliminary injunction will be denied. Here is the simple reason.
First of all, it is highly unlikely that a majority of the three judge panel will say that there is no right to openly carry a handgun in public or that the exceptions to the Open Carry ban make the ban constitutional. This would create what is known as a US Supreme Court Rule 10 split. Couple this with the fact that one can appeal a denial of a preliminary injunction up to the US Supreme Court.
But given the hatred that two of the three judges on this panel have towards the Second Amendment Open Carry right coupled with their not wanting to create a Rule 10 split thereby making this case a perfect candidate for US Supreme Court review, the three judge panel will most likely write a very narrow decision saying that the district court judge did not abuse his discretion in denying the preliminary injunction and then kick this case back to the district court.
I Hope Baker Wins
Personally, I don’t like Christopher Baker and count him as one of millions of people who should not even possess a firearm let alone carry one in public.
But a Second Amendment win is better than a loss. If Baker wins his preliminary injunction then it is some help to my California Open Carry lawsuit. And if he loses then it is no big deal.
My appeal is an appeal of a final judgment which was based on the long since vacated three judge panel decision in Peruta v. San Diego. There is no four point test in my appeal. There is just one test. Either California’s Open Carry bans are constitutional or they are not. If I lose then I get something no Second Amendment concealed carry case has ever had, a SCOTUS Rule 10 split which is something the State of California won’t have should I win.
If I win my appeal then my win is limited to the 9th Circuit Court of Appeals. If I lose and SCOTUS publishes a decision in my case then the SCOTUS decision applies nationwide.
If you are a judge on the 9th Circuit Court of Appeals who opposes the Second Amendment then you know this. You have two choices. Either write a decision which avoids creating a Rule 10 split or write a decision which creates a Rule 10 split and risk having it come back to bite you. This happened in the Caetano v. Massachusetts case. The Massachusetts high court got cute and wrote a decision which directly conflicted with the Heller decision and all eight justices of the US Supreme Court slapped the Massachusetts high court down in a unanimous decision.