You should have heard by now that Justice Ginsburg has died and that President Trump has nominated 7th circuit court of appeals Judge Amy Coney Barrett to fill the vacancy.
That is a game-changer, as it were.
We only need the votes of four justices to grant a cert petition but we need the vote of five justices to win a case. For what was likely the first time in my lifetime, notwithstanding a SCOTUS clerk who wrote a book some years back lifting the veil of secrecy somewhat, “anonymous sources” inside the Supreme Court revealed that the ten Second Amendment cert petitions pending from the last term were denied because the justices were unsure as to which side Chief Justice Roberts would land.
If Judge Barrett’s lone dissent in a Second Amendment case truly reflects her beliefs, and if she is confirmed, which seems likely, then we will have the fifth vote we need to win Second Amendment cases.
That fact is not lost on the eleven judges sitting on the Young v. Hawaii en banc panel. With the exceptions of Judges Clifton and Friedland, whom I suspect don’t give a fig about having their anti-2A decision reversed if they can garner four other judges to side with them. I think it is very likely that if George Young does not win then a majority of the judges are going to craft a decision that minimizes the chances of the United States Supreme Court granting a cert petition in the Young v. Hawaii case.
Hawaii can “Win” by Calling the Game on Account of Moot
Of course, Hawaii can easily moot this case simply by granting Mr. Young a permit to carry a handgun, openly or concealed, that is valid for at least three years. Do not be surprised if that happens. Hawaii, being the far-left extremists they are, might decide to bet all of their chips on winning, and on my getting hit by a bus because if Mr. Young wins his Second Amendment claim then I win my enumerated Second Amendment claim.
The State of Hawaii Tossed California Under the Bus
Because the State of Hawaii forcefully argued that the Second Amendment extends outside the home and is not a second class right, the same position that Mr. Young argued. The panel must either say that both sides are wrong and the Second Amendment is limited to the inside of one’s home or it must hold that the Second Amendment extends outside of one’s home.
If the panel holds that the Second Amendment extends outside of the home, even if the state can require “good cause” then I win my California Open Carry lawsuit and California’s Open Carry bans get struck down because there is no amount of “good cause” you or I can show that will allow us to openly carry any loaded firearm even one inch outside the doors to our home.
However, if Mr. Young loses, and I lose my Second Amendment claim before my three-judge panel then I will have a much more favorable pool of judges voting on my en banc petition than Mr. Young had.
The easiest way to avoid SCOTUS granting a cert petition should Mr. Young lose his appeal is for at least six judges on the en banc panel to hold that the Second Amendment extends outside of the home but the state can require a “good cause” showing to openly carry a handgun in public, and then remand the case back to the district court to give Mr. Young the opportunity to show that he has “good cause” or that the law is otherwise unconstitutional as it applies to him. That is known as an “As Applied” challenge.
Now for the Good News
Neither side challenges the Peruta v. San Diego en banc decision which held that concealed carry is not a right as per the Heller decision and as per 475 years of American and English law that held that concealed carry is not a right and even upheld bans on carrying concealable firearms.
The State of Hawaii did not just concede that the Second Amendment extends outside of the home, the state insisted that it does and emphasized that it does not view the Second Amendment as a second class right. The state’s argument is that the Hawaii law, which requires “good cause” to obtain a permit to openly carry a handgun in public, does not violate the Second Amendment and withstands “Strict Scrutiny.”
I don’t count six votes that would hold the Second Amendment is limited to the inside of one’s home given that would create a circuit split with every Federal circuit and every state court of last resort. Even before the death of Justice Ginsburg, it would have been very difficult for SCOTUS to deny that cert petition. If Judge Barrett becomes Justice Barrett then the 9th circuit court of appeals would be handing SCOTUS a cert petition it can’t refuse.
That means the only thing left to the panel, if there are at least six judges to uphold the Hawaii law, is to write a decision that minimizes the chances of a cert petition from being granted.
A Closer Look at the Judges after the Oral Argument
In my final Pre-Game Analysis of the Young v. Hawaii en banc oral argument, I closed with:
“My crystal ball tells me that there are four judges who would like for Mr. Young to lose, four judges who would like for Mr. Young to win, and three judges where it is impossible to guess.
My crystal ball will see much more clearly after the oral argument takes place.”
Well, my crystal ball sees much more clearly in regards to two of the judges. Clifton and Friedland are never going to recognize an individual Second Amendment right. They don’t care that should they prevail their decision would be overturned by SCOTUS. Their opposition to the Second Amendment is a hill they are willing to die on, metaphorically speaking.
That still leaves us with nine other judges on the en banc panel. The following is what I wrote in the 2nd of my three pre-game analyses in regard to each of the judges on the en banc panel.
My post-game analysis will be in italics following each judge.
Diarmuid O’Scannlain (Senior status) – Likely vote for Young. He wrote the divided three-judge panel decision in favor of George Young Jr.
Richard R. Clifton (Senior status) – Will vote in favor of Hawaii. He dissented in the divided three-judge panel decision in favor of Hawaii.
Margaret McKeown – Clinton – Will vote in favor of Hawaii. (Joined in Peruta en banc majority)
Kim McLane Wardlaw – Clinton – Unknown. In 2012, Judge Wardlaw properly reversed and remanded a district court judgment because the district court judge relied on a decision from before Heller, coupled with the fact that the prior “Decision did not address the question of whether § 922(g)(9) [misdemeanor crime of domestic violence] violates the Second Amendment … ” Judge Wardlaw is a better judge than Clifton every day of the week and twice on Sunday.
Judge Wardlaw did not ask any questions. Her demeanor in oral argument suggested that she will likely join in a decision that holds the Second Amendment extends outside of the home but the government can require “good cause” to carry a handgun in public.
William A. Fletcher – Clinton – Will likely vote in favor of Hawaii. (He wrote the Peruta en banc majority)
No change, except that Judge Fletcher listened intently to both sides and genuinely appeared to be struggling. He asked if the case should be remanded which strongly suggests that he doesn’t think the Hawaii statute is facially unconstitutional but he does think that if Mr. Young has “good cause” for a handgun Open Carry license then he should be granted one. That would be consistent with the majority decision he wrote in Peruta v. San Diego en banc, including his agreement with the concurrence in that decision. The concurrence in Peruta v. San Diego/Richards v. Prieto held that if concealed carry were a Second Amendment right then the Court would still uphold the “good cause” requirement for a permit to carry a loaded, concealed handgun in public.
Consuelo Callahan – G.W. Bush – Will likely vote in favor of Young. (Peruta dissent)
Sandra Segal Ikuta – G.W. Bush – Likely vote for Young. She joined the divided three-judge panel decision in favor of George Young Jr.
Michelle Friedland – Obama – Will vote in favor of Hawaii.
Ryan D. Nelson – Trump – Will likely vote in favor of Young.
Judge Nelson asked if the case should be remanded to see if Mr. Young has an as-applied challenge. I don’t think he would ask that question if he did not think that the panel was going to hold that the Hawaii statute is facially unconstitutional. I am also changing my projection from “likely” voting in favor of Young to leaning toward voting in favor of Young.
Judge Bybee – George W. Bush – I did not think that Judge Bybee would be on the panel because he assumed senior status and the 9th circuit rules and General Orders say that the only senior status judges who can sit on an en banc panel are those senior status judges who sat on the original three-judge panel. Nevertheless, he is an unknown and remains an unknown. He said during the oral argument that half the states in colonial American and England had restrictions on Open Carry and the other half did not. Judge Bybee asked what was he to do in that situation.
I do not know where Judge Bybee got his information given that there were no restrictions on the Open Carry of firearms in colonial America to speak of and certainly not when the Second Amendment was enacted.
There were many restrictions in England, notwithstanding the bans the English imposed on Catholics, Scotts, Irish, Welsh, and the lower classes. The most widespread, and severe, were the English hunting laws that were used to ban the bearing of arms in most of England, not by the rich estate holders of course, and certainly not by the crown on crown lands. The English game laws were condemned by early American jurists.
And so Judge Bybee remains an unknown.
Chief Judge Sidney R. Thomas (appointed by Clinton) is an unknown. My sense is that if he were the lone judge deciding the case then he would hold that a law that allows Loaded Open Carry outside of cities while requiring Unloaded Open Carry inside of cities does not violate the Second Amendment. He said as much in his dissent in the Peruta v. San Diego three-judge panel opinion.
I think that a majority of the panel is going to join in an opinion that holds the Second Amendment does extend outside of the home but the government can require “good cause” for a permit to openly carry a handgun in public.
I don’t see six votes for this eleven judge en banc panel to hold that there is a right to openly carry a handgun in public without having “good cause.”
The only chance of that happening, and it is a very remote chance, is for both Judge Bybee and Judge Wardlaw to join with Judges O’Scannlain, Ikuta, Callahan, and Nelson, and after oral argument, I am not even sure about Nelson.
Keep in mind that, in the words of Judge Berzon who sits on my three-judge panel, California laws are more “nuanced.” If by “nuanced” she meant that the California Open Carry bans are statutory prohibitions whereas the Hawaii Open Carry ban was simply a policy choice by the police chief and county which the State of Hawaii now insists violated state law then yes, California’s Open Carry bans have a lot of nuance.