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Professors of Law Say 9th Circuit Open Carry Decision is Now The Law – Young v. Hawaii Lawyer Says It Isn’t

University of California at Los Angeles Professors of Law Adam Winkler and Eugene Volokh
University of California at Los Angeles Professors of Law Adam Winkler and Eugene Volokh

Two prominent Professors of Law, both of whom oppose Open Carry, say the July 24th, Open Carry decision, Young v. Hawaii, from the 9th circuit court of appeals is binding on every Federal judge in the 9th circuit.

According to one of the two lawyers representing Mr. Young, Alan Beck, they are wrong.

I asked Mr. Beck for a comment.

He did not comment.

Enter, Stage Left – Attorney Alan Beck

The lawyer who argued before the three-judge panel which published the Young v. Hawaii decision, Alan Beck, says that judges are free to disregard the Open Carry decision.

Youngv. Hawaii - Plaintiff's Attorney Alan Beck.
Youngv. Hawaii – Plaintiff’s Attorney Alan Beck

I emailed Mr. Beck at 11:18 AM Friday, August 31st, asking him, “Would you care to make a comment, on the record, with attribution, and for publication? And feel free to go into great detail as to the foolish mistakes that I’ve made and make.”

As of the time this article was submitted for publication, Mr. Beck had not replied to my emailed request for comment.

During oral argument in Young v. Hawaii, Mr. Beck’s legal argument was that states can ban Open Carry in favor of concealed carry.

Which is a position popular with the lawyers for the so-called gun-rights groups but fortunately it is also a position which has been rejected by every Federal circuit court of appeals, including the 9th circuit court of appeals, where Mr. Beck argued his case.

Fortunately, the three judges assigned to Mr. Beck’s appeal rejected that position and instead, adopted the legal argument that I have been advancing since I first filed my lawsuit challenging California’s Open Carry bans in November of 2011.

My argument was, is, and always will be that the inferior court judges are bound by the US Supreme Court decisions in Heller and McDonald (and now Caetano as well).

The Heller decision was, in the words of the late Justice Antonin Scalia who wrote the decision, the first in-depth examination of the Second Amendment right conducted by the Supreme Court.

The Heller decision said that Open Carry perfectly captures the meaning of the individual, Second Amendment right to keep and bear arms. The Heller decision said that concealed carry is not a Second Amendment right and can therefore be prohibited. The McDonald decision held that the right defined in Heller applies to all state and local governments.

The mistakes that Mr. Beck, and whom he describes as his “partner,” Mr. Stamboulieh, have made – could fill a book. Today, we will focus on this recent one by Mr. Beck. Mr. Beck says Federal judges in this circuit are not bound by published Federal court of appeals decisions by this circuit. Which isn’t too surprising given that he told the three-judge panel assigned to his appeal in Young v. Hawaii that the panel is not bound by the US Supreme Court decisions in Heller and McDonald when he said that states can ban Open Carry.

Mr. Beck was reportedly in the United States military. Is it possible that there is no longer a chain of command in the US military? Is it possible that someone can make it past boot camp without learning that basic concept?

The legal team of B&S (Beck and Stamboulieh) are playing a dangerous game with the Second Amendment. In his Open Carry decision, Judge O’Scannlain minimized the errors that Mr. Beck made and remanded the case back to the district court because of a sizeable error that Mr. Beck made which Judge O’Scannlain could not sweep under the rug.

If the Young v. Hawaii appeal is reheard before an eleven judge en banc panel then the number of judges who would uphold Judge O’Scannlain’s Open Carry decision will not outnumber the judges who would overturn it two to one, which was the ratio of support for Judge O’Scannlain’s decision by the three-judge panel.

There will undoubtedly be judges on the en banc panel who will be looking for any excuse to overturn Judge O’Scannlain’s decision without creating a circuit split, which would in turn invite the US Supreme Court to step in and to resolve the split.

The easiest way to toss Mr. Young’s appeal is because of lack of standing. Having been denied a state license to openly carry a handgun in public confers standing to challenge the denial of the state license. However, another crucial part of standing is whether or not the denial of the state license violates a Federal right, in this case a Federal right to openly carry a handgun in public.

If Mr. Beck goes before a hostile en banc panel of judges and tells them that states can ban Open Carry in favor of concealed carry then these hostile judges on the en banc panel can treat that as a concession by Mr. Beck that there is no right to Open Carry.

And since lawyers are bound by the concessions they make during oral argument, Mr. Young would lose his appeal not because there isn’t a Second Amendment right to openly carry a firearm in public but because Mr. Young, through his attorney Alan Beck, has “conceded” that there is no Second Amendment right to Open Carry and “Presto,” “Whamo,” Mr. Young loses his en banc appeal without the en banc panel having to ever decide the Second Amendment Open Carry question because that question was not directly before it.

Does that sound familiar? It should, as that was the conclusion of the en banc panel in Peruta v. San Diego two years ago. The NRA lawyer went before an en banc panel of judges after having won before a three-judge panel of judges, coincidentally with Judge O’Scannlain writing that decision as well, and told the Peruta v. San Diego en banc panel that there is no right to Open Carry, that states can impose concealed carry.

Given that the NRA lawyer, Paul Clement, told the court that states can ban Open Carry, 7 of the 11 judges on the en banc panel concluded that their was no Second Amendment Open Carry question before it. And since the US Supreme Court has twice explicitly said that concealed carry is not a Second Amendment right it was a simple matter for the en banc court in Peruta v. San Diego to say that there is no right to concealed carry and that it wasn’t going to decide the Open Carry question because that question was not before the court.

Once again, the reason the Open Carry question was not before the en banc court is because the NRA lawyer said that Open Carry can be banned. This is what Mr. Beck had argued before his three-judge panel.

If Mr. Beck’s appeal is reheard before an en banc panel then expect him to lose if he again says that states can ban Open Carry in favor of concealed carry.

Of course, there are many additional ways Mr. Beck could throw victory into the jaws of defeat.

I would not be surprised in the least if Mr. Beck created additional ways to lose which have never before been seen in a court of law.

Enter, Center Stage – The Professors of Law

University of California Law Professors Eugene Volokh and Adam Winkler agree on one thing – The moment the 9th circuit court of appeals issued its decision in Young v. Hawaii, which held that we have a Second Amendment right to openly carry firearms in public, that decision became binding on every Federal Judge in this circuit.

University of California at Los Angeles Professors of Law Adam Winkler and Eugene Volokh.
University of California at Los Angeles Professors of Law Adam Winkler and Eugene Volokh

That is a legal reality which the so-called gun-rights lawyers seem to be ignoring as evidenced by the fact that none of them have so much as filed for a Temporary Restraining Order, often referred to as simply a “TRO,” let alone a Preliminary injunction, against any Open Carry ban anywhere in the 9th circuit.

I knew that all Federal judges in this circuit, including the three Federal circuit court judges assigned to my appeal, would be bound by a published decision in Young v. Hawaii and I said so at the beginning of my oral argument challenging California’s Open Carry bans in the 9th circuit court of appeals.

I knew this and yet I am not a lawyer and so surely any competent lawyer would know this.

The presiding judge in my appeal reluctantly agreed with my assessment during my oral argument that she and the other two judges on my three-judge panel would be bound by the Young v. Hawaii decision and said so to the state’s attorney who represents California Governor Brown and Attorney General Becerra. And so, 12 days after my appeal was taken under submission for a decision, submission of my appeal for a decision was vacated pending a decision in Young v. Hawaii.

As we now have a decision in Young v. Hawaii, my California Open Carry appeal (Nichols v. Brown) is once again submitted for a decision.

The Two Professors of Law

Both Professor Volokh and Professor Winkler are tenured professors at UCLA. Here is a little bit about each of them.

Professor Volokh’s article about “The Commonplace Second Amendment,” was cited by Supreme Court Justice Antonin Scalia’s majority opinion in the landmark Second Amendment case of District of Columbia v. Heller. Professor Volokh had once clerked for Justice Sandra Day O’Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit.

Professor Winkler is the author of “Gunfight: The Battle over the Right to Bear Arms in America” and “We the Corporations: How American Businesses Won Their Civil Rights.” Professor Winkler filed an Amicus brief in District of Columbia v. Heller in support of the District of Columbia gun bans.

Here we have two eminent law professors on opposite sides of the Second Amendment who both agree that the 9th circuit court of appeals Open Carry decision is binding on every Federal judge.

A Little Background Information

I will continue with a little background information. It’s important. I promise. I will explain why later on.

I’ve written before that the Young v. Hawaii Open Carry decision is binding on every Federal judge in this circuit the moment it was published even though it is not binding on the parties to the lawsuit (Mr. Young and the various government defendants) until the mandate is issued.

Because it is binding on every Federal judge in the 9th circuit, any competent attorney can file for a Federal Temporary Restraining Order in a Federal district court at any time and obtain a TRO followed by a Preliminary injunction against any state or local Open Carry ban in this circuit.

For that matter, anyone who isn’t a lawyer and who isn’t otherwise prohibited by law from possessing a firearm can file for a TRO and preliminary injunction, if he is competent to write and defend them.

Because the so-called gun-rights lawyers are either morons or oppose Open Carry or both, they haven’t and they won’t be filing for a TRO or Preliminary injunction against any Open Carry ban.

Don’t forget, at this very moment the NRA has a lawsuit on appeal called Flanagan v. Becerra, which argues that states can ban Open Carry in favor of concealed carry, and since California has banned Open Carry, they are entitled to concealed carry permits.

That was the same failed argument made in the Peruta v. San Diego concealed carry lawsuit and that argument will fail again, leaving the NRA with yet another failed concealed carry lawsuit asking the US Supreme Court to grant its cert petition.

A Supreme Court with hopefully a freshly minted Supreme Court justice (Judge Kavanaugh) who has already said that concealed carry is not a Second Amendment right.

Given that people believe what they want to believe and believe things from people they want to believe, and the opponents of Open Carry certainly don’t want to believe me, I approached University of California at Los Angeles Professor of Law Eugene Volokh for a quote supporting my position or, even better, for him to write the article himself so I could simply post the link.

Professor Volokh, like every self-professed gun-rights lawyer opposes Open Carry. However, unlike the rest of them, he accepts the fact that concealed carry is not a Second Amendment right.

Okay, some of these lawyers do accept the fact that concealed carry is not a Second Amendment right but they hate Open Carry and so don’t expect any of them to be filing anything in support of Open Carry, anywhere.

This is what Professor Volokh said, “The judge following Peruta before the mandate had issued, and without the parties citing it, was just the judge doing her job.”

Professor Volokh said I could quote him “if you do it in context.”

There is a lot of context. Here is the short version. It won’t seem like the short version but, trust me, it is.

The Short Version

The week after the Young v. Hawaii Open Carry decision was published, I sent Professor Volokh the following email:

Subject: Peruta 3 judge decision, Nichols v. Brown, and Young v. Hawaii

Despite being freshly published, and no mandate having been issued, and not cited by either party, the magistrate judge recommended that I lose my Second Amendment claim because of the divided three-judge panel decision in Peruta v. San Diego. The state’s attorney filed a document concurring in the report and recommendation and despite my objections, the district court judge held that it was binding on my case. Seems to me that Young v. Hawaii, as a published decision with no Mandate, is also binding on my appeal. And yet no attorney has emailed me suggesting that I demand an application and license to openly carry a handgun from the California Attorney General and that she notify every police chief and sheriff in the state that they are to issue handgun Open Carry licenses.

The state’s attorney is unavailable until his return on Monday. This weekend I will be pondering the ramifications of making the demand and more to the point, pondering the ramifications of what happens if the AG sends me a handgun Open Carry license via FedEx after making the demand.

Any thoughts?

Professor Volokh responded with a citation affirming my understanding of the procedural law in this circuit. Which is to say that the Young v. Hawaii decision is binding on every Federal judge in this circuit, even though it does not become binding on the parties to the lawsuit until the mandate issues.

“[Judges are] supposed to follow binding precedent, even when it’s not cited by the parties, and appellate decisions are binding precedent on lower courts as soon as they are rendered, even before the mandate issues. See, e.g., Chambers v. United States, 22 F.3d 939, 942 n.3 (9th Cir.1994) (“We reject the government’s argument that X-Citement Video is not binding precedent until the mandate issues in that case. In this circuit, once a published opinion is filed, it becomes the law of the circuit until withdrawn or reversed by the Supreme Court or an en banc court.”), vacated on other grounds by 47 F.3d 1015 (9th Cir.1995).”

Federal District Court Judge Samuel James Otero in his final judgment dismissing my California Open Carry case, with prejudice, cited four appellate court decisions and for some inexplicable reason a district court decision which likewise held that all Federal judges in a circuit are bound by a published decision prior to the mandate being issued. Namely: White v. Klitzkie, 281 F.3d 920, 924 n.4 (9th Cir. 2002), Northern California Power Agency v. Nuclear Regulatory Com’n, 393 F.3d 223, 224 (D.C. Cir. 2004), Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc), United States v. Gomez-Lopez, 62 F.3d 304, 306 (9th Cir. 1995), Castillo v. Clark, 610 F. Supp. 2d 1084, 1122 n.17 (C.D. Cal. 2009)

It did not matter to Judge Otero or to magistrate Judge Segal that the mandate in the Peruta v. San Diego three-judge panel concealed carry decision had not issued, or that the Peruta decision in favor of concealed carry conflicted with the United States Supreme Court decisions in Heller and McDonald, or that the decision was already en route to being vacated.

Coincidentally, there was a concealed carry case in the district court around the same time, which was temporarily saved by the long since vacated Peruta three judge panel decision, Birdt v. San Bernardino Sheriffs (sic) Department, et al.

Ironically, the judge in that case (Birdt) cited my district court case (incorrectly as Nichols v. Harris. It was, is, and always has been Nichols v. Brown et al).

“Nonetheless, for the time being, Peruta is governing Ninth Circuit law that lower courts must follow. See Nichols v. Harris, – F. Supp. 2d – , 2014 WL 1716135*1 (C.D. Cal.) (panel decision is binding on lower courts as soon as it is published and remains binding even if the mandate is stayed, citing Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc)).”

Of course, after the three-judge panel decision in Peruta v. San Diego was vacated and replaced with the en banc decision, every concealed carry case and appeal in this circuit fell like flies.

Which left my California Open Carry appeal and Mr. Young’s as the last two standing. Mr. Young’s appeal survived only because he had also asked for, and was denied, a license to openly carry a handgun.

Had Mr. Young simply asked for, and been denied, a concealed carry license then his appeal would have been just another dead fly in a pile of dead flies.

A law review article written by Professor Volokh was cited by Judge O’Scannlain in his vacated three-judge panel decision, Peruta v. San Diego, in support of Judge O’Scannlain’s mistaken conclusion that government can ban Open Carry in favor of concealed carry.

Judge O’Scannlain did not use those exact words, that states can ban Open Carry in favor of concealed carry. Indeed, in his now vacated Peruta v. San Diego decision Judge O’Scannlain said that there is no right to concealed carry. He then proceeded to erect a pleading bar which effectively prohibited anyone from challenging an Open Carry ban. And he did so despite the US Supreme Court having already made it quite clear that the only one who gets to create a pleading bar is the United States Congress. But I digress.

Of course, had Judge O’Scannlain read Professor Volokh’s law review article a little more carefully then he would have read that Professor Volokh said he was expressing his personal preference which Professor Volokh said was contradicted by 150 years of prior precedent. 150 years of prior precedent which had said that concealed carry is not a right. Including the then recent US Supreme Court decision District of Columbia v. Heller.

On November 19, 2016, during the 2016 National Lawyers Convention in Washington, DC., Professor Volokh emphatically stated that: “The one thing which is clear in Heller is that there is no right to concealed carry under the Second Amendment…”

Sitting right next to him at the table, when he made this statement, was Judge
O’Scannlain, who was the author of the vacated three-judge panel decision in Peruta v. San Diego and the author of the current Open Carry decision in Young v.
Hawaii.

The Peruta v. San Diego en banc decision cited 475 years of prior precedents, and other authorities, which banned concealed carry and a few which banned concealable weapons outright.

Professor Volokh was a few centuries shy of his estimate of 150 years.

Not a single case or other legal authority in the history of man had ever held or said that Open Carry can be banned in favor of concealed carry.

But I digress again. The point is that the Young v. Hawaii Open Carry decision is binding on every Federal judge in this circuit which means that any Federal judge in this circuit who denies a properly written TRO/Preliminary injunction is not, in Professor Volokh’s words, a “judge doing her job.”

And yes, that was the in context short version Professor Volokh required
me to use in order to quote him by name.

Professor Winkler had no such stipulation. When I asked for him to comment on the record, with attribution and for publication, he simply replied, “Yes I agree with Eugene. AW.”

He didn’t even ask me to plug his two books.

Professors of Law Say 9th Circuit Open Carry Decision is Now The Law - Young v. Hawaii Lawyer Says It Isn't 1

Professors of Law Say 9th Circuit Open Carry Decision is Now The Law - Young v. Hawaii Lawyer Says It Isn't 2

And So There You Have It

A self-described supporter of the Second Amendment, Professor Volokh, who opposes Open Carry and who is a tenured professor of law at the University of California at Los Angeles and who has represented so-called gun-rights groups which likewise oppose Open Carry although not in their lawsuits opposing Open Carry, is telling you that every Federal judge in this circuit is bound by the Young v. Hawaii Open Carry decision.

And so is his fellow tenured professor of law, Adam Winkler.

Both of them would prefer that the Young v. Hawaii decision held that Open Carry can be banned but, despite their personal preferences, they know that every Federal court judge in this circuit (both in the district court and in the court of appeals) is bound by law to abide by the 9th circuit court of appeals Open Carry decision and they aren’t going to look the fool by telling you otherwise.

Where is the TRO and Preliminary Injunction Against any Open Carry Ban in the 9th Circuit?

Anyone who tells you that every Federal court in this circuit isn’t bound by the 9th circuit court of appeals Open Carry decision is either a liar, a fool, or both.

And yet one of Mr. Young’s two attorneys, Alan Beck, posted a comment on a gun.nuts forum saying that:

“The Court has every right to tell someone that files a PI that you are likely to win on the merits of the case based upon current precedent but that precedent may change soon due to en banc proceedings. Thus, it is in the public interest to not enjoin the law through a TRO or Preliminary injunction. Or the Court can say the balance of hardships do not weigh in your favor because it would be a hardship on the State to enjoin a law prior to the en banc proceedings being decided.

Those are just a couple of many ways the Court can rule against you.”

Oh really Mr. Beck? When has this ever happened?

When has a TRO or preliminary injunction ever been denied because a judge said, “precedent may change soon due to en banc proceedings” when one has already won on the merits?

When has a TRO or preliminary injunction ever been denied because a judge said, “it is in the public interest to not enjoin the law through a TRO or Preliminary injunction” when one has already won on the merits?

When has a TRO or preliminary injunction ever been denied because a judge said, “it would be a hardship on the State to enjoin a law prior to the en banc proceedings being decided” when one has already won on the merits?

Or for that matter, even if one hasn’t already won on the merits of his appeal, when has a Federal judge ever said these things, ever?

No Federal judge is going to say, “You’re right! The 9th circuit court of appeals Open Carry decision is binding on me, but so what? I’m a judge, I can do whatever I want to do.”

As I said at the beginning of this article, I emailed Mr. Beck asking him for a comment, he did not respond. It has been three days. When has any mainstream press reporter ever given anyone three days to comment?

The fact is Federal district court judges don’t do this because any district court judge who denied a TRO or preliminary injunction for the reasons Mr. Beck gave would be flipping his middle finger at the entire Federal judiciary, of which the judge is a member. It would be a career ender for that judge.

As Mr. Beck is no longer a newly minted lawyer he no longer has the excuse of inexperience. Whatever he failed to learn in law school he has had more than enough time to learn on his own.

The Judge’s New Robes

But let us assume that Mr. Beck’s fantasy played out that way. Wouldn’t it be worth the $400 filing fee to expose that judge?

I can give one example where a district court judge could deny a TRO and preliminary injunction against California’s Open Carry bans. But not for the farcical reasons Mr. Beck gave.

There is one example in California, and that one example is me. If I were to file for a TRO and preliminary injunction the district court judge would have to deny my TRO because I lost my California Open Carry lawsuit in the district court and the jurisdiction in my case is now in the hands of a three-judge panel of the 9th circuit court of appeals.

Mr. Young, the sole plaintiff in the Young v. Hawaii case, is in the same predicament.

Also, if someone is a convicted felon or otherwise prohibited from possessing a firearm under state or Federal law then his TRO and Preliminary injunction would be denied, but not for the reasons Mr. Beck gave, but because that someone does not have a Second Amendment right according to the Heller decision.

But the wonderful thing about filing for a TRO is, if it is denied then unlike losing when you lose a case in the district court, you are not prohibited from filing for another TRO from a different judge seeking the same thing for the same reasons.

And if that other judge denies the TRO then you can go to another judge until you run out of Federal court districts in California.

There are 79 district court judges in California’s four Federal court districts who can sign a Temporary Restraining Order.

If I weren’t precluded from filing for a Federal TRO then I would start with the Southern District of California.

If there isn’t a single Federal district court judge in this state willing to sign a TRO the law requires him to sign then we have a much bigger problem with our courts than the nominal expense of filing for these TROS.

And that problem would dwarf the war the so-called gun-rights lawyers and groups have been waging against the Second Amendment.

I have asked my supporters to contact the so-called gun-rights groups and ask them why they haven’t filed for a TRO followed by a preliminary injunction? I have also asked them to forward any responses they might receive to me.

Now it’s your turn. Here are a few of them:

NRA – https://contact.nra.org/contact-us.aspx
CRPA (NRA State Organization) – https://www.crpa.org/contact-us/
Second Amendment Foundation (SAF) – https://www.saf.org/contact-us-2/
The CalGuns Foundation – https://www.calgunsfoundation.org/contact
Firearms Policy Coalition – https://www.firearmspolicy.org/contact
Gun Owners of America – http://gunowners.net/cgi-bin/ttx.cgi?cmd=newticket
Gun Owners of California – [email protected]