The far-left government of Hawaii stabbed the far-left government of California in the back on Thursday when Hawaii argued to uphold its handgun carry permit law before an eleven judge en banc panel of the 9th circuit court of appeals.
Six months after I filed my lawsuit challenging California’s ban on openly carrying loaded firearms in public, George Young Jr., filed his third lawsuit in Hawaii seeking a permit to carry a handgun in public. Openly or concealed he did not care.
The district court judge in Mr. Young’s lawsuit quickly disposed of his lawsuit by dismissing it with prejudice. The judge held that the Second Amendment is limited to the home and so limiting the issuance of handgun Open Carry permits to security guards is constitutional.
It took nearly two and a half years for the district court judge to dispose of my case. The district court judge in my California Open Carry lawsuit held that the American people do not have a right to even possess firearms. The district court judge assigned to my case, Judge Samuel James Otero (since retired) compared firearms to crystal meth and people who carry firearms to dealers in crystal meth. He did so even though the California Supreme Court, the United States Supreme Court and the 9th circuit court of appeals have held that possession of a firearm is in itself an innocent act, even if there were no Second Amendment right to keep and bear arms. That’s right. For example, even if there is no Second Amendment right to possess a machine-gun, if the machine-gun is lawfully possessed then the possession of that machine-gun is an innocent act. The US Supreme Court repeated that holding last term from an earlier decision it published in 1994.
In my appeal, the State of California argued that the United States Supreme Court decision in District of Columbia v. Heller was wrongly decided. California argued that the three-judges assigned to my appeal must conduct its own historical analysis and conclude that there is no right to openly carry firearms in public because when the Second Amendment was enacted it was illegal to openly carry firearms outside of one’s home anywhere, and for any reason. I kid you not.
Because Mr. Young’s appeal was argued and submitted for a decision three days before my California Open Carry appeal was argued and submitted for a decision, the threshold question as to whether or not the Second Amendment applies outside the doors to our homes depends upon what the 9th circuit court of appeals decides in Mr. Young’s case because the decision, in that case, is binding on my three-judge panel.
Mr. Young won his appeal before his three-judge panel in a 2-1 decision but a majority of active 9th circuit court of appeals judges voted to vacate the three-judge panel decision and rehear the Young v. Hawaii appeal before an en banc panel of eleven judges. This was before President Trump had filled ten vacancies on the 9th circuit court of appeals.
Coincidentally, all three judges from Mr. Young’s three-judge panel were selected to sit on the eleven-judge en banc panel. Other than the Chief Judge, who sits on all en banc panels, the remaining ten judges are selected from the pool of available judges.
The Order granting the en banc petition, thereby vacating the three-judge panel decision in Young v. Hawaii was granted on February 8, 2019, but the oral argument did not take place until last Thursday, September 24, 2020. Why? Because the US Supreme Court granted a Second Amendment cert petition before the oral argument took place. And so, the 9th circuit court of appeals stayed the appeal until the decision in that case. That case was dismissed as moot, and then the pandemic hit. The oral argument took place remotely.
What Happened In the Oral Argument?
Leftists eat their young. There is no honor in them. If it means stabbing California in the back in order to uphold Hawaii’s “good cause” requirement for being issued a permit to openly carry a handgun in public then so be it.
The State of Hawaii replaced the attorney who argued the case and lost, before a three-judge panel of the 9th circuit court of appeals. Hawaii replaced him with a former temporary Solicitor General from the Obama administration, Neal Katyal.
Mr. Katyal, in response to a question during the en banc oral argument, was adamant that the Second Amendment applies outside the doors to our home, that the Second Amendment is not a second class right, that the Second Amendment is not limited to security guards, but that the state law requiring good cause to obtain a permit to openly carry a handgun in public is constitutional.
The State of California, as you may recall, argued that there is no right to carry a firearm outside of the home. For that matter, the State of California did not even concede a right to carry a loaded firearm inside of one’s home, and certainly did not concede a right to carry a loaded firearm in the curtilage of our home.
Under California law, if you live in a place where the ban on carrying a loaded firearm applies (California Penal Code section 25850) then it is a crime to carry the loaded firearm even one inch outside the door to your home unless you fall within one of the exceptions to the ban, such as a police officer or zookeeper, or licensed security guard. The bans on openly carrying unloaded firearms apply to the same geographic places as does the ban on carrying loaded firearms with the added kicker that California Penal Code 626.9 prohibits the possession of a handgun within 1,000 feet of a K-12 public or private school unless the possession falls into a narrow exception, such as a license to carry a concealable handgun.
If you live in a county with a population of 200,000 or more people then it is impossible for a member of the general public to obtain a license to openly carry a handgun anywhere outside the doors to our home. There are no licenses to openly carry long guns available to the general public in California (Mr. Young did not seek to openly carry a long gun and so he did not have standing to challenge any restrictions on the Open Carry of long guns).
And if one does live in a county where they are issued, the handgun Open Carry licenses are limited to the county in which they are issued. If they are even issued. A decade ago, I contacted the Sheriff of Imperial County and asked for an application for a license to openly carry a handgun, and inquired as to how many he had issued. The sheriff did not even know that the law allowed him to issue handgun Open Carry licenses, and since nobody had ever asked him for a handgun Open Carry license he had never issued one.
In short, there is absolutely no amount of “good cause” one can have and be issued a license to openly carry a handgun outside of the interior of one’s home if one lives in a county of 200,000 or more people.
California law, by statute, forbids it.
If the eleven-judge en banc panel that heard the Young v. Hawaii appeal holds that the Second Amendment extends even one-inch outside the doors to our home then I win and California’s bans on openly carrying loaded and unloaded firearms must be struck down because the en banc panel decision in Young v. Hawaii is binding on my three-judge panel even more so than prior three-judge panel decisions, and the en banc decision is binding on every subsequent three-judge panel in this circuit and the decision is binding on every district court judge in this circuit.
The moral of the story is don’t turn your back on a leftist, he’ll stick it right in.