In this case, an en banc panel of the 9th circuit court of appeals held that all small and concealable arms, not just handguns, are not protected by the Second Amendment and therefore there is no right to carry them, openly or concealed in public.
The two questions presented in Mr. Young’s cert petition are.
1. Whether the Ninth Circuit erred in holding, in direct conflict with the holdings of the First, Seventh and D.C. Circuits, that the Second Amendment does not apply outside the home at all.
2. Whether the denial of petitioner’s application for a handgun carry license for self-defense violated the Second Amendment.
Mr. Young’s attorneys really should have asked others to review their cert petition before they filed it. I would have gladly done it for free.
I offered to help them with their reply brief, not that a reply brief can salvage a defective cert petition, but I heard nothing back from them.
They filed their Reply Brief.
They did not heed my recommendation that they counter in their reply brief the State of Hawaii’s recommendation to the Supreme Court that it deny the Young v. Hawaii cert petition and wait for the cert petition from the NRA lawsuit, Flanagan v. Bonta.
Hawaii falsely characterized the Flanagan case as an Open Carry case when, in fact, the Flanagan case claims that California’s bans on Open Carry are constitutional. And since California has banned Open Carry, that somehow entitles them to concealed carry permits, according to the self-described left-coast NRA lawyers in the case.
If that sounds familiar, that was the same claim made by the same law firm representing Ed Peruta in Peruta v. San Diego which lost before an en banc panel of eleven judges in 2016.
The Peruta cert petition was denied in 2017.
The State of California in its Brief In Opposition to the Peruta v. San Diego concealed carry cert petition suggested to the justices that they wait for the cert petition in my California Open Carry lawsuit, now stylized as Charles Nichols v. Gavin Newsom et al.
My lawsuit was originally called Charles Nichols v. Edmund G. Brown Jr. et al., but Governor Brown was term-limited out of office and replaced by Gavin Newsom.
The et al was former California Attorney General Kamala Harris who was replaced when she was elected to the Senate. Her replacement was himself replaced by a new attorney general when he accepted an appointment in the Biden administration.
My California Open Carry lawsuit is on its second governor and third attorney general. If Newsom loses the recall election this month then my lawsuit will be on its third governor as well.
I have been in court that long. Since November 30th, 2011, to be exact.
The Young v. Hawaii en banc panel opinion did not decide whether or not the Second Amendment applies outside of the home.
That was the threshold question in the Young v. Hawaii case but the en banc panel opinion avoided the question by instead holding that small and concealable arms are not protected by the Second Amendment.
And since small and concealable arms are not protected by the Second Amendment, there is no right to carry them openly or concealed in public.
The en banc panel also created a procedural bar to Mr. Young winning his case even if his lawsuit was not limited to small and concealable arms.
The en banc panel construed Mr. Young’s pro se Complaint as one that made only a facial challenge and then held that to win a facial challenge, there can be no set of circumstances in which Hawaii’s licensing law is constitutional.
The “no set of circumstances test” is called the “Salerno Test” after a Supreme Court opinion of the same name in which the Justices did not even apply the “no set of circumstances, Salerno test.”
The obvious problem with the “Salerno Test,” and probably why the justices have never actually used the test in any of its opinions, is the Salerno Test results in irrational and evil results.
For example, the Federal Constitution prohibits slavery and involuntary servitude except for people who are convicted of a crime.
A law that reinstitutes slavery would pass the Salerno Test because there is a set of circumstances in which the law would be valid, punishment of persons convicted of a crime, even though the law would be invalid in every other set of circumstances.
The rational basis test prohibits laws that are irrational or arbitrary. A law that reinstitutes slavery would fail the rational basis test, the lowest standard of review, but at the same time would survive the Salerno Test.
I made that same point in my case when my lawsuit was still in the district court, close to a decade ago. I also argued in my opening brief on appeal that racist laws would survive the Salerno Test because one can always contrive some set of circumstances under which the law would be valid.
Secondly, the First circuit presented the least of the Federal circuit splits. I have no idea why the 1st Circuit was included in the first question presented.
In short, the Young v. Hawaii cert petition could have been written better. It could have been written a lot better.
It should have been written a whole lot better.
Instead of the cert petition being held pending the opinion in NYSRPA v. Bruen, it has been scheduled for the 9/27 long conference.
That does not bode well for this cert petition.
And since it seems that the three-judge panel assigned to my California Open Carry lawsuit thinks my Second Amendment challenges to California’s bans on openly carrying handguns, rifles, and shotguns, both loaded and unloaded, should live or die depending upon whether or not the Young v. Hawaii cert petition is granted, the fate of the Young v. Hawaii cert petition is of particular interest to me.
Hopefully, the Young v. Hawaii cert petition will survive the long conference and be held for a decision in NYSRPA v. Bruen.
We will probably know the fate of the Young v. Hawaii cert petition sooner than later.
As soon as October 4th.
That’s all for this article.
Until next time, thank you for reading, and please sign up for my newsletter at CaliforniaOpenCarry.com, and please subscribe to my video channel at.