Hawaii Handgun carry law struck by Ninth Circui

alanb said:
Who would be here to inform you about the destruction of Europe if I left?
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Dunno man, but you are now exposed to the general public, and Sherdog is a trail you may want to erase.
 
Cubo de Sangre said:
Why you selling us short, bro? :(
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Well, considering how people get crucified for 10 years old social media posts i think there ought to be a balance between exposure and anonimity.
 
I think the only reason this was a thing was cause that fucking colonizer Mark Zuckerberg knows his time is coming soon.

Thats.... Just waaaaaay too many people he has pissed of.

And now that it has failed I suspect he will be giving a large chunk of that land back to Hawaii.
 
Rod1 said:
Dunno man, but you are now exposed to the general public, and Sherdog is a trail you may want to erase.
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I may disagree with some of the stuff Alan posts on here but he’s inoffensive as a poster, although there’s always a possibility of something being taken out of context.
 
jamel said:
I think the only reason this was a thing was cause that fucking colonizer Mark Zuckerberg knows his time is coming soon.

Thats.... Just waaaaaay too many people he has pissed of.

And now that it has failed I suspect he will be giving a large chunk of that land back to Hawaii.
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Alex Jones, is that you? Sheepdog hasn’t banned you yet? Color me surprised.

Seriously tho: The Ninth Circuit has a bloc of fairly reliable Conservative judges, the most overtly conservative of which is Diarmuid O’Scannlain (I think that’s how it’s spelled). Alan’s panel included Judge O’Scannlain and two other fairly conservative judges. One of them dissented (Clifton IIRC). That likely sets up what is called a rehearing en banc, which means it will be a larger panel (theoretically, “en banc” should be the whole court, but there are too many judges on the ninth circuit to fit on one bench). The en banc panel may agree with the dissent in Alan’s case. That’s entirely possible, given that there’s ample circuit authority for that position, and most judges in this circuit are rather pro-Government when it comes to Second Amendment legislation (e.g., a case just came out a few days ago where a panel upheld more gun restrictions).

If Alan’s case is reversed by an en banc panel, he may petition the Supreme Court for a writ of certiorari (basically just asking the SCOTUS to decide the case). The other side can also petition the SCOTUS without seeking en banc review, although the SCOTUS probably won’t be interested in this issue if an en banc panel wasn’t interested. Since apparently this “open carry” issue hasn’t been fully litigated, there’s a chance the SCOTUS may want to clarify it. There really aren’t that many Second Amendment cases on the books because, frankly, the government was never this aggressive in restricting gun rights as it is right now. If Alan ends up in the SCOTUS, I hope he wins. The balance of the Court is (or will be) favorable to Second Amendment rights.

But I digress. Yes, Mark Zuckerberg is likely scared shitless of a native Hawaiian uprising.
 
JamesRussler said:
The en banc panel may agree with the dissent in Alan’s case. That’s entirely possible, given that there’s ample circuit authority for that position, and most judges in this circuit are rather pro-Government when it comes to Second Amendment legislation (e.g., a case just came out a few days ago where a panel upheld more gun restrictions).
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At what point do they put aside their political leanings and simply rule in favor of the Constitution? Keep and bear is unambiguous in that people have the right to possess arms and use them in their defense. And as we know, the 2nd isn't limited to just one's home. So while even I had to agree that historical prohibitions on concealed carry suggest that there's an argument to be made that its prohibition could fall under the law, having no carry at all is clearly un-Constitutional.
 
Cubo de Sangre said:
At what point do they put aside their political leanings and simply rule in favor of the Constitution? Keep and bear is unambiguous in that people have the right to possess arms and use them in their defense. And as we know, the 2nd isn't limited to just one's home. So while even I had to agree that historical prohibitions on concealed carry suggest that there's an argument to be made that its prohibition could fall under the law, having no carry at all is clearly un-Constitutional.
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The truth is that everything is political. There is no real way for a judge to truly be unbiased. In fact the Second Amendment itself expresses a political view that the Government should not have a monopoly on deadly force - a very populist notion indeed. For that reason, “textualism” and “originalism” also have taken on a sort of political meaning. I suspect most Left-leaning judges would become textualists if the Constitution said “the right to welfare payments shall not be infringed.” Judges may “put aside their political leanings” if they share the same views within a judicial Overton Window, but that’s as apolitical as it gets.

The short answer to your question is we need to elect people who appoint judges that share our political views. That’s the ugly, cynical truth.
 
JamesRussler said:
The truth is that everything is political. There is no real way for a judge to truly be unbiased. In fact the Second Amendment itself expresses a political view that the Government should not have a monopoly on deadly force - a very populist notion indeed. For that reason, “textualism” and “originalism” also have taken on a sort of political meaning. I suspect most Left-leaning judges would become textualists if the Constitution said “the right to welfare payments shall not be infringed.” Judges may “put aside their political leanings” if they share the same views within a judicial Overton Window, but that’s as apolitical as it gets.

The short answer to your question is we need to elect people who appoint judges that share our political views. That’s the ugly, cynical truth.
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I get all that. But at some point don't most of 'em rule the right way when the law and historical observance thereof are pretty clear?
 
Well, looks like the list of semi-famous people I will claim to know personally and to have spoken with to anyone who asks has grown by one. Well done, sir.
 
Cubo de Sangre said:
I get all that. But at some point don't most of 'em rule the right way when the law and historical observance thereof are pretty clear?
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Lower courts are said to be "bound" by holdings of higher courts within their jurisdiction. If you can find a case that is factually on-point, and it's published, the Court will probably follow it. But there are an infinite number of ways to "distinguish" a case, or otherwise minimize the scope of its authority. If the judges really want to fuck your client over, they'll say "but this case is different because ____, ____, and ____." Then they'll rule against you, and you'll have to appeal it.
 
JamesRussler said:
Lower courts are said to be "bound" by holdings of higher courts within their jurisdiction. If you can find a case that is factually on-point, and it's published, the Court will probably follow it. But there are an infinite number of ways to "distinguish" a case, or otherwise minimize the scope of its authority. If the judges really want to fuck your client over, they'll say "but this case is different because ____, ____, and ____." Then they'll rule against you, and you'll have to appeal it.
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In this particular instance, how persuasive do you find the written opinion and how likely is it to sway the average judge?
 
Cubo de Sangre said:
In this particular instance, how persuasive do you find the written opinion and how likely is it to sway the average judge?
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Well, I can only base it off the Second Amendment cases I've read, my own litigation experience, and my impression of what the general thinks about this issue. I haven't litigated any Second Amendment cases myself (not where it was directly in issue anyway). So this is just my general impression.

Judge Clifton's dissent is based on the argument that "the core of the Second Amendment does not include a general right to publicly carry firearms," that the majority assumed facts which weren't in the record, and that it misapplied the intermediate scrutiny test. The Supreme Court hasn't yet clarified which level of scrutiny applies to Second Amendment restrictions, but it has pointed out that gun ownership is an enumerated Constitutional right which gets either "strict" or "intermediate" scrutiny (and therefore does not get "rational basis" scrutiny). Whether strict scrutiny or intermediate scrutiny applies, the government (as the majority points out) had the burden, and an absence of facts is resolved against the government. Personally, even under intermediate scrutiny, I found Clifton to be far too deferential to the Government, especially given that "The County’s attorney conceded at oral argument" facts which supported the majority's opinion. Moreover, as the majority also pointed out, this was an appeal of a 12(b)(6) ("motion to dismiss"), so no discovery has been conducted yet. The record is necessarily confined to the complaint and judicially noticed items; it would be unfair to resolve an absence of facts against the non-moving party.

That said, my impression is that this idea that firearms should be "regulated" is actually rather persuasive with most judges because they believe unregulated firearms use will lead to anarchy or war somehow. This falls under what I call the "the system must survive" rationale – i.e., this idea judges don't want to rule in a way that causes society to fall apart. Even the Heller decision said that Second Amendment rights are "not unlimited." Several circuits have already upheld "good cause" open carry restrictions and defined the rights to bear arms as essentially confined to the home.

At the end of the day, I think it all comes down to which whether a majority of judges believe that "the core of the Second Amendment . . . include a general right to publicly carry firearms." I believe that an en banc panel of the Ninth Circuit would hold that it does not, but I am not so sure about the Supreme Court. More than any time I can remember, the Supreme Court is likely to take an expansive view of the Second Amendment.
 
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